The Gay and Lesbian Rights Lobby (GLRL) has cautiously welcomed a motion passed by the ALP National Conference for state-based relationship registers to be established in all Australian states. In a speech today at a GLBT Labor forum attended by Shadow Attorney-General Joe Ludwig, the GLRL said this was an important “first step” but a formal federal model, such as civil unions and marriage, was still a pressing issue for the GLBT community.

“After years of near stalemate on this issue in Australia, action is not only overdue but embarrassingly late. Whilst in other countries, Ellens and Eltons are walking down the aisle and picking colour schemes for their bouquets and bridesmaids, Australian couples still can’t have a partner’s name on their Medicare card,” Gay and Lesbian Rights Lobby representative, Ghassan Kassisieh, told the audience.

Kassisieh further urged the ALP to carefully consider the acceptability to the GLBT community of any proposal it offered in the lead up to the federal election. “A registration certificate has practical benefits, but it will not satisfy the symbolic and ceremonial aspects of formal recognition desired by so many in the GLBT community. The ALP needs to offer the GLBT community a policy worth voting for.”

Apart from relationship recognition, the GLRL address also highlighted the need for comprehensive discrimination protection and equal parenting rights for same-sex families.

The full address is attached below.

Key Issues in Lesbian and Gay Law Reform

What are the key issues in lesbian and gay law reform? If you asked Peter Costello, his answer may be that there are no outstanding issues. In an address to the Sydney Institute last year, Costello memorably remarked: ‘I think we do recognise the rights of gay and lesbian people in Australia. We do not criminalise [their] conduct and behaviour.’ You won’t be surprised when I tell you, the gay, lesbian, bisexual and transgender (GLBT) community do not agree with the Treasurer on this point.

There are several key issues for GLBT law reform at the federal and state levels. I hope to address some of the issues that the Gay and Lesbian Rights Lobby’s consultations with the community and legal experts have identified. Today, I will address three key areas:

• The patchy protection against sexuality and gender identity discrimination,
• The absence of federal relationship recognition, and
• The invisibility and exclusion of same-sex families under state and federal law.

Who are we?

As an introduction for those that don’t know us, the NSW Gay and Lesbian Rights Lobby has been a leading voice for equality since 1988. Our strategy is simple. We do wide and extensive research with the GLBT community on issues that impact their daily lives. We make those consultation results public to media and politicians. We then work with supportive allies in getting action to happen.

Next year is our twentieth anniversary and we will celebrate with a string of achievements in NSW, which have included anti-vilification legislation in 1993, the first state recognition of same-sex relationships in 1999, an equal age of consent in 2003 and the first federal recognition of super rights for same sex couples in 2004. We are predominantly a volunteer-based community organisation; small shoes that have made big footsteps in the laws of our home state.

Anti-discrimination protection

Now onto the first issue; the patchy protection against sexuality and gender identity discrimination.  A suite of federal anti-discrimination legislation currently prohibits discrimination on several grounds, including sex, race, age and disability. A notable omission is the lack of protection for discrimination against sexual and gender minorities at the federal level. As a result, Australia’s single largest employer, the Commonwealth Government , and the wide range of welfare and employment services the Commonwealth provides, are not subject to sexuality or gender identity anti-discrimination law.

At a state level, protection against discrimination is also patchy. Private schools, religious authorities and small businesses are exempt under NSW anti-discrimination legislation. This is an important issue as public services are increasingly contracted out to private service providers. 30% of high school students that currently attend private or church-run schools have no protection if they are expelled or mistreated on the basis of their sexuality or gender identity. Meanwhile, comparable laws overseas and interstate, including the UK, strike a more effective balance between the right to religion and the right to non-discrimination. Let’s not forget also, that the right to non-discrimination for the most part sits very comfortably with the majority of religious people in this country whose religion is one of tolerance and compassion, and who can see that you don’t have to agree with someone else’s views to agree that people should be treated with basic, fundamental dignity. Publicly-subsided education facilities and religious-based welfare services should not be allowed to effectively operate above the law in the provision of public services.

Furthermore, there is no protection against discrimination on the basis of same-sex relationship status. This means employers and others can deny the same-sex partners of employees benefits otherwise afforded to heterosexual partners with impunity. Our workplace discrimination study of 900 people, conducted in partnership with the University of Sydney in 1999, found that workplace discrimination continued to be a fundamental issue in the everyday lives of GLBT people. 20% of participants had been denied partner workplace entitlements, with up to 44% of participants not even seeing any point in asking their employers about partner entitlements. Anti-discrimination protection on the basis of relationship status would give employees with same-sex partners a legal ‘leg’ to stand on.

Federal relationship recognition

The second issue, and one that has recently received considerable media attention, is the non-recognition of same-sex relationships under federal law. Human Rights Commissioner, Graeme Innes, notes that over 60 pieces of federal legislation currently discriminate against same-sex couples. Superannuation, taxation, immigration, Medicare, veterans and defence, social security, industrial relations, marriage and family law currently define loving relationships and families in purely heterosexual terms. As a result, same-sex relationships are denied a wide range of entitlements and benefits, such as access to the Family Court for property division, the eligibility for a raft of couple- and family-based tax rebates, concessions and welfare payments, the right to get to married and family entitlements under the Medicare Safety Net.

In our recent consultation with over 1,300 people across metropolitan, regional and rural NSW – the largest in Australia to date – these practical rights were rated as the singular most important aspect of relationship recognition to people in the GLBT community. But more than just these rights. Equality, including the right to marry, was a close second place. The marriage ban has mobilised the GLBT community and the disappointment and anger within the community, particularly towards the Federal Labor party that has traditionally been regarded as the “gay-friendlier” of the major parties, has been overwhelming.

Our consultation revealed that the majority of people in the GLBT community want a broad choice of recognition options open to them; the automatic protection of de facto recognition as well as the formal and symbolic forms afforded by civil unions and marriage. Not only is this issue important to GLTB people, but the call for equality is also gaining sympathetic support from the mainstream community. In a Newspoll conducted last year, 52% of Australians said they supported the formal recognition of same-sex relationships.

After years of near stalemate on this issue in Australia, action is not only overdue but embarrassingly late. Whilst in other countries, Ellens and Eltons are walking down the aisle and picking colour schemes for their bouquets and bridesmaids, Australian couples still can’t have a partner’s name on their Medicare card. The relationship recognition debate is not politically “too hard” – even the “M” word could be politically utterable in time – with sufficient leadership and the courage to begin informed public debate. We congratulate the Stanhope and Bracks governments on joining Tasmania in support of a formal recognition scheme. We are happy to now congratulate all the state and territory Labor governments – including, finally, South Australia – in progressively granting de facto equality at a state level.

We are pleased that state-based registration schemes were adopted by a strong majority at yesterday’s conference proceedings. Formal state-based recognition is an important first step and we hope all the states will follow in Tasmania and Victoria’s footsteps. We are concerned with how these state schemes will be recognised by the federal government, particularly in the light of constitutional provisions against discrimination between residents of different states. We would add a further word of caution; a registration certificate is practically beneficial, but I would greatly doubt that it would satisfy the symbolic and ceremonial aspects of formal recognition desired by so many in the GLBT community. Our consultation results show that Labor cannot underestimate the significance of equality and social acceptance for GLBT Australians and the need for a formal federal model is still pressing. This a good start and hopefully a precedent for future policy, but we still call on federal Labor to articulate how it will lead the way in formal and de facto (not merely interdependency) law reform. As a suggestion, a constitutionally-sound direction for Australia could be a bilateral treaty with New Zealand to recognise each others civil unions, which would open the way for civil unions to be legislated for under the external affairs power.

Recognition of same-sex families

The final key issue I want to discuss is the recognition of same-sex families by the law. Our research and overseas research suggests that a growing proportion of same-sex couples currently raise children. Some figures indicate up to 20% of lesbians and 10% of gay men are parents. However, laws in NSW, federally and in other states continue to discriminate with regards to parenting rights.

For example, consider children born to lesbian couples through donor insemination or IVF. Unlike children born to heterosexual couples, under NSW law these children are considered to have one legal parent. The non-biological mother is locked out of automatic recognition, which can impact on matters of child support, contact, inheritance and parental authority, such as the right to consent to a child’s medical treatment. Yesterday, I had a mother on the phone to me crying because she was worried that as the non-biological mother, she was going to lose her daughter after her relationship broke down. I explained to her some ways she could assert some rights as a significant person in the child’s life, but clearly the legal instability in such situations is not in anyone’s best interest. Same-sex families are a reality in our society and legal discrimination harms the economic and emotional stability for children raised within them. 

Conclusion

Discrimination protection, relationship recognition and parenting rights are three key areas in lesbian and gay law reform today. They are a snapshot of the ways that GLBT people experience legal discrimination in our society.

Kids are still kicked out of homes. Slurs are still hurtled out of car windows. We still get bashed. But law reform promises a brighter vision for a more mature, accepting and welcoming Australia. The Lobby calls on the ALP to head into the federal election with a fairer deal for GLBT Australians. Whilst the Lobby appreciates the potential for backlash from some sectors as a result of progressive law reform, let the marriage ban be a lesson that our votes cannot be taken for granted, and the ALP needs to offer the GLBT community a policy worth voting for.