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Marriage isn’t everything: the other fights for LGBT rights in Australia

It’s been something of a historic week in the fight for same-sex marriage in Australia. And it’s been a significant year for LGBT rights more generally (not so much, arguably, for Q* or I or any of the other letters that might otherwise go on the end of that acronym). Unfortunately, the hyperfocus on marriage has obscured the leaps, bounds, and deficiencies in some of the areas in more urgent need of attention. Here’s your guide to where Australia’s at, and where the lucky country, as we call it, has to go in order to spread that luck around more evenly.

What’s so special about this week? On 30 November, a civil partnerships bill narrowly passed in Queensland, the result of a private member’s bill introduced by Deputy Premier Andrew Fraser. There’s a particular significance in this: Queensland, Australia’s most northeastern state, is famously conservative. It remains the only state that maintains a higher age of consent for anal sex between men. This is under, I kid you not, a sodomy law, abolishment of which is something Queensland might want to place a little higher on the queer rights priority list than registration of partnerships. The civil partnerships bill is heartening, but its seeming significance is dimmed when we put in context my above comment that marriage isn’t in huge need of attention.

If that sounds strange, you had best note that in Australia marriage is largely a federal matter, and has very few rights exclusively associated with it in comparison with, say, the US. As Emily Manuel noted in June,  “The strong recognition of de-facto (‘common law marriages’) relationships in Australia for both heterosexual and homosexual couples ensures most basic rights are covered, with a 2009 bill passed by the Rudd government guaranteeing Federal recognition of same-sex relationships for Centrelink and Family Assistance social services, tax returns, and immigration.” It’s easy to focus on marriage, because it’s an area in which there’s not that much left to fight for in practical terms.

Regardless, marriage has grabbed the popular imagination, and Australia’s LGBT community spent months gearing up for Saturday’s national conference of the Australian Labor Party, the party currently in federal governance. Delegates voted to change party policy to support same-sex marriage, and there will be a vote in parliament early next year. However, it will be a conscience vote, whereas usually members of parliament vote along party lines, with voting coalitions being formed between major parties and minor ones and independent members.

The decision for a conscience vote is being frowned upon by the left. If Labor had decided to push through with block support, backed by the Greens, same-sex marriage would be a certainty next year. With a conscience vote, Labor’s right faction and the right wing Liberal Party could well prevent reforms. The decision for a conscience vote is one aimed at helping Prime Minister Julia Gillard, who is part of her party’s shrinking minority against same-sex marriage, save face. There’s a bigger problem with the conscience vote than that, and Labor senator John Faulkner got it in one. From the Sydney Morning Herald:

“It is not for governments to grant human rights but to recognise and protect them,” Senator Faulkner said. ”Human rights can never be at the mercy of individual opinion or individual prejudice … A conscience vote on human rights is never conscionable.”

On Sunday, Labor also decided to distribute Certificates of Non-Impediment to Marriage (proof of not being married in Australia) to same-sex couples wishing to marry elsewhere, ending what was an effective ban on Australians being married to people of their own genders anywhere in the world.

So, a bit of a week for marriage all up. There are some bigger human rights at stake, as ever, and some remaining gaps that have unfortunately gone under the radar. Everything is a patchwork solution until discrimination based on gender identity and sexual orientation is outlawed on a federal level. There aren’t pension rights when a same-sex partner dies, for instance, and securing inheritance rights is a big headache. The single biggest issue in LGBT life is the preservation of life itself. As elsewhere, discrimination against LGBT people in Australia means not only poorer access to health services themselves, but higher instances of drug use and mental health issues.

Intersections of vulnerability make things even worse for some, in ways that a focus on marriage leaves cold. The National LGBT Health Alliance outlines how the needs of older LGBT people go unacknowledged in discussions of aged care. This is particularly the case in aged care residential settings, where partnerships may go unacknowledged, leading to higher facility fees per resident. Aboriginal and Torres Strait Islander Australians are particularly vulnerable, subject to higher rates of violence and poorer health care than the rest of the population. ACON’s Aboriginal Project is attempting to address the specific circumstances around HIV in Indigenous communities .

The flipside of the focus on marriage is that substantial recent human rights wins have gone unacknowledged, too. In addition to the CNIs, September’s changes to passport rules are helping out Australians going elsewhere. A medical statement, rather than surgery, is now the only prerequisite for having one’s legal sex changed on one’s passport. You could practically hear the sighs of relief around the country when that one changed.

The most populous state, New South Wales, legalised adoptions by same-sex couples and the stepparents in same-sex couples last year. The Northern Territory and South Australia remain the furthest behind, not allowing same-sex couples to adopt, and with adoptions by single people of any orientation remaining exceptionally rare. The inconsistency isn’t fun, but it’s part of a relatively rapid shift considering that the first legal adoption by same-sex parents occurred in 2007. South Australia, however, isn’t only behind in that respect, with surrogacy and IVF remaining banned for same-sex couples. All other states and territories allow IVF for couples comprised of women at the very least, and most have legalised non-commercial surrogacy. Having laws that address building families and keeping them together has been and remains far more urgent a matter than the marriage laws that will help many of these families out.

Parenting, then, and recognition of non-genetic parents as real parents, have been the really big issues here of the last few years. The state of reproductive freedoms for trans men has been a fair bit worse than for the rest of the LGBT community, however. Two Western Australians had a long fight to have the genders on their birth certificates changed, and were denied by Western Australia’s Supreme Court because they hadn’t had hysterectomies. More accurately, they were denied because of fears that they might choose to cease hormone treatment, reproduce, and interrupt conventional gender roles. Happily, in October, the Australian High Court ruled that requiring that anyone be sterilised in order to secure accurate documents was against the law. It’s an example that will hopefully resound around the nation.

More widespread visibility of gaps in trans rights seems to have come on the back of Captain Bridget Clinch’s one woman fight for trans people to serve openly in the Australian Defence Force. She succeeded last year, even though the state of marriage law meant she had to divorce her wife (they remain together) in order to have her gender recognised. The right of same-sex attracted people to serve openly in the ADF has been recognised since 1993.

LGBT rights, after all, are a matter of recognition of who people are, not just who people are while coupled up. Part of the reason marriage enjoys such extraordinary focus is because it’s the primary remaining barrier for many LGBT people in positions of relative social privilege. Taking it as the LGBT issue, though, minimises the many fights a diverse group of people have on their hands, fights that range beyond strictly sexual and romantic realms. Australia has a fair way to go in order to give everyone a fair go, but I’m pretty proud of how far we’ve come over the last few years.


*I say Q not because there haven’t been real gains for queer people’s rights, but because these issues have largely been framed as gay, or perhaps gay and lesbian, ones. There’s recognition of a very limited range of identities, and it troubles me not only that other same-sex attracted people are going to be mislabelled, but also that this framing makes the gains seem like a favour granted to a subgroup rather than an expansion of human rights.

EDIT: This article originally stated that Captain Bridget Clinch and her partner had divorced.  Clinch has informed us that she and her partner are still married and that she doesn’t have a corrected birth certificate as a result.  She has lodged a complaint with the Australian Human Rights Commission about the forced divorce requirement.

5 thoughts on “Marriage isn’t everything: the other fights for LGBT rights in Australia

  1. Thanks for mentioning Bridget, she has fought very hard to be treated equally by the ADF and we have had feedback from other serving trans-ppl that the system is treating them very differently to how it did before Bridget got the old policy cancelled.
    Just wanted to clarify that we are still married (because I am stubborn) and Bridget has lodged a complaint with the Australian Human Rights Commission against NSW Births, Deaths and Marriages because they will not legally recognise her as female based purely on her marital status (she meets all other requirements).
    Mrs Tammy Clinch (aka Bridget’s Tammy)

  2. I agree with you that marriage equality has probably become such a focus because it’s the major missing piece for affluent middle-class non-aged white GLBT Australians, and it’s certainly not the end of the road for GLBT rights all round.

    I think though, it’s attracted some additional interest because it’s also about getting religion out of a state/civil matter. As far as I can tell, the remaining arguments against are essentially religious, and in fact I have Catholic friends who support legal same-sex marriage (although they don’t think such marriages should happen in their church) because they at least recognise that there should be a separation between church and state.

    And not unrelated, there’s a huge amount of symbolic meaning attached to whose marriages are recognised by a culture.

    But yeah, there’s also all the intersectionalities.

  3. Hi Tammy – I’ve been emailing with your wife today. I’m so sorry for the confusion, I was misinformed.

    Definitely, Aquaeri, there are huge social implications. It’s been interesting for me to listen to people adhering to non-Christian religions in particular, and how some consider advocating for state-based same-sex marriage to be a religious/ethical duty.

  4. I definitely get this argument, and have sometimes thought the same thing myself. I realize that your comments are focused on Australian political and policy strategy, and I am an American. The equal protection of the law is a constitutional question, and it often plays out differently depending on which constitution is being talked about.

    After working on behalf of LGBTI rights issues for 20 years in the U.S., what I have been finding (to my surprise, I fully admit) is that within our constitutional system the burgeoning successes in the area of marriage equality are spinning off as successes in everything else. If you have the right to have a family, what’s the point if you can’t hold a job to support that family, or buy a house, or rent an apartment in which they can live? Or be free from harassment, or count on the community to protect your children?

    This may well play out differently in Australia because the legal systems, while related, are different. But I hope you will understand how grateful we Americans are, particularly to our Australian, Canadian, Kiwi, and British brothers and sisters for handing us a bunch of answers we needed in our own fight for justice.

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