REMEMBERING THE PAST
WESTERN AUSTRALIAN LAW REFORM The history of GLBTI law reform in Western Australia stretches back more than four decades, from the start of the so-called ‘gay liberation movement’ in the early 1970s, through the decriminalisation of gay sex in 1990, the recognition of non-heterosexual de facto couples and families in state law in 2002, and such couples and families in federal law in 2009. Gay and Lesbian Equality (WA) has a proud history of achievement as WA’s GLBTI human rights lobby group. We have existed under our current name for nearly two decades, and GALE’s foundation can be traced back through preceding organisations like the Gay Law Reform Group of WA, COLAGE (the Coalition for Lesbian and Gay Equality), the Stonewall Union of Students, and the Campaign Against Moral Persecution (CAMP).
of the 1980s that large street-based demonstrations were held demanding equality for GLBTI people. These initial protests led to the creation of Pride WA and the annual march, which now celebrates GLBTI life and equality, and reminds us of the struggles of the past to achieve equality. This increasing public scrutiny, and changing views by the public towards homosexuality being criminalised, put pressure on the government of the day to justify the ludicrous position of prosecuting and locking up gay men for consenting sexual activity for up to 14 years with hard labour. This led to the fifth attempt at decriminalisation – in 1989 – under the Richard Court-led Liberal government. Despite making gay sex legal, the Liberal government begrudgingly did so, and wrote a preamble to the 1989 law, which disapproved of the promotion or encouragement of homosexuality. The onerous age of consent, set at 21, would also see young gay men still criminalised and prosecuted in WA.
Indeed, GALE still has long-term members who were active in the WA chapter of CAMP, which existed across a number of ...initial protests led to the Australian states during the early 1970s. It’s The same Liberal creation of Pride WA and the sometimes hard for government later also annual march, which now younger members of our passed laws relating celebrates GLBTI life and equality, to transgender identity community to imagine, the struggles of in WA, again with quite but life for GLBTI people and reminds us of in the early 1970s was onerous conditions. the past to achieve remarkably different from today. For example, it equality... The closet was fairly much a way of life, required a person to have undergone with people having to hide who they were to en- complete surgical reassignment and to have to sure that they could have a job, be accepted by be approved by a committee to have their birth society and even remain out of jail or treatment for certificate amended. The law also provided for their sexuality. limited anti-discrimination protection for people who had been certified, but provided no protecAfter the Stonewall riots in New York in June 1969, tion for those people who were undergoing treatCAMP formed in a number of states – including ment or living pre-operatively as transgender. Western Australia in July 1971 – to start the path towards gay law reform. The first attempt at de- Despite these reforms, the Richard Court Liberal criminalising homosexuality in WA happened un- government still failed to tackle the big issue of der the Tonkin Labor Government in 1973, which general anti-discrimination laws. It did nothing would eventually culminate in a royal commission when it received a report in 1994 from the Equal into homosexuality, which recommended the de- Opportunity Commissioner recommending gays criminalisation of gay sex with an age of consent and lesbians be covered by anti-discrimination at 18. laws. Similarly, it did nothing when Australia’s Human Rights But it would take half a dozen more attempts over Commissioner released a nearly two decades before adult gay men in West- discussion paper, ern Australia would have sex between them made which discussed legal. Three of the first four failed attempts – 1973, discrimination in 1984, and 1987 – failed primarily due to WA’s up- both state and per house of Parliament being controlled by con- federal laws servative political parties. The 1977 attempt failed in 1997. in the lower house, blocked by strong opposition from the Charles Court-led Liberal government. The slow movement by the WA Government to deal with gay law reform led more and more members of the WA GLBTI community to take a stand and protest. It was during the law reform attempts
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The sixth attempt at law reforms, a private members bill in the upper house by Australian Democrats MP Helen Hodgson, was introduced in 1997. Despite the Liberal Government saying it would give members a conscience vote on the legislation, it failed to bring debate on the bill for three years. While it did pass the Legislative Council, the bill failed when the Legislative Assembly was dissolved on the calling of the 2001 elections. Meanwhile, GALE had been working on getting the major parties, including Labor, on the record about GLBTI law reform in the lead up to these elections. Labor, in opposition, gave a clear undertaking to pursue law reform if elected. These elections delivered the Geoff Gallop-led Labor Government, and broke the conservative parties’ stranglehold on the upper house of State Parliament. This dramatic shift in the numbers in each house would lead to the Labor Party and Greens being able to pass legislation without hindrance. And for GLBTI law reform in Western Australia, the time had arrived. The incoming Attorney-General, Jim McGinty, moved quickly to set up a ministerial committee to examine WA’s laws and find the areas which were discriminatory towards GLBTI people, their relationships and their families. The committee released its report in late 2001, and legislation began to be drafted. It was the law reforms passed in 2002 and 2003 that finally expunged the anti-gay preamble from WA’s law books, and to pass comprehensive equal opportunity laws covering sexuality. The legislative package also reformed dozens of different laws to allow same-sex couples to be treated exactly the same as de facto heterosexual couples in virtually every area of the law.
FEDERAL LAW REFORM Federally, the law reform process has been disappointingly slower. GLBTI groups from around Australia have lobbied since 1994 for the recognition of non-heterosexual couples and families in federal law and for comprehensive federal anti-discrimination laws. Part of this struggle has been won. The Rudd Government has moved to fix the financial and social discriminations against same-sex couples in national laws, but failed on its proposal for a National Human Rights Act. And Australia still has very poor anti-discrimination protections, with the Australian Human Rights Commission being unable to make binding determinations in sexuality anti-discrimination cases. The Rudd Government has yet to give any commitment to fixing these laws. Since 2004, same-sex marriage has also come to the fore, following the Howard Government’s ban, which was supported by both Labor and Liberal.
Gay, Lesbian, Bisexual, Trans* & Intersex
An umbrella term for those of diverse or transitioning sex or gender
Intersex: People born with aspects of both male &
Please note: Where possible we have endeavoured to use terms that recognise the full spectrum of sexuality & gender identity. GALE(WA) recognises that there are a diversity of people who may not identify with the terminology used.
THE STATE OF AFFAIRS
So, where are we now? The Howard Government’s 2004 amendment to the 1961 Marriage Act stipulated that marriage was now to be defined as ‘existing solely between a man and a woman to the exclusion of all others’ – a change which effectively banned same-sex marriage. Because marriage is a Federal issue, individual states and territories do not have the power to implement marriage themselves, nor introduce any legislation that according to the law ‘mimics marriage’. However, they do have the ability to create relationship registers and civil partnership schemes for same-sex de facto couples. At present, Tasmania, the ACT, Victoria and recently NSW have all introduced such schemes. These laws differ according to each jurisdiction and are not the same as marriage, given that they are only recognised within their own state boundaries and often are only available to citizens of that particular area. However, they are by no means redundant or tokenistic, as they are means by which same-sex defacto couples are able to have their relationships legally registered. WA does not yet have a formal recognition scheme, however under the 2002 state reforms same-sex couples are afforded the same rights as heterosexual de facto couples. The process of implementing these schemes has not been without controversy or difficulty. In 2006 a proposal to introduce civil unions in the ACT was blocked by the Howard Government. When the legislation was reintroduced in 2008 Rudd did the same - despite pre-election promises not to intervene in the actions of the States and Territories on the matter of same-sex unions. The ‘problem area’ that both PM’s objected to was a fairly small section of the bill that would have allowed for samesex couples to have public and formally recognised ceremonies presided over by an official celebrant (a priest, justice of the peace, rabbi etc). Apparently, this arrangement was too ‘marriage-like’ and therefore contravened the terms of the 2004 ban. Fortunately, thanks to some rather clever wheeling and dealing, in late 2009 the legislation in the ACT was allowed to pass. This followed the introduction of laws in Tasmania that would permit same-sex couples to have their unions presided over by an official notary, passed earlier in that year. Unfortunately, in the ACT the new civil partnerships would only be accessible to same-sex couples. According to the ACT Government, restricting heterosexual couples from having their relationships recognised under the new scheme was a means of reassuring the Commonwealth Government that samesex civil partnerships did not constitute a marriage. If this statement confuses you, don’t worry – it doesn’t make any sense to us either!
MARRIAGE vs. SEX & GENDER DIVERSITY
It is also worth mentioning that most states and territories have fairly restrictive laws regarding the recognition of gender-diverse people. Most require an individual to undergo sex reaffirmation surgery in order to change the gender on their birth certificate, and thus be fully recognised as their identified gender. The marriage ban
creates a situation whereby married trans* people must divorce their partner in order to have their appropriate gender legally recognised – as granting legal recognition of a married person’s transition from one physical sex to another will inadvertently create a same-sex marriage.
85 FEDERAL REFORMS
In 2008 the newly elected Rudd Government introduced changes to 85 Federal laws that would remove discrimination against same-sex couples and their families. These changes were fairly comprehensive, and cover an extremely broad spectrum of laws. Changes include: •
Same-sex partners of Defence Force personnel and veterans, Public Servants, policy makers and other public servants are entitled to equal compensation, retirement benefits, superannuation and accommodation provisions.
In the workplace, the same-sex partners of employees are now entitled to equal access to superannuation, leave (including parental leave) compensation and other partner-based entitlements.
Changes to Immigration laws now allow for samesex de-facto partners and their children to apply for the same types of immigration visas as heterosexual couples, allowing them to be recognised as family members, rather than having to apply for a costly and complicated ‘interdependent’ visa.
If you and your partner are living together, you are now able to declare your relationship. This means that you and your partner’s assets and wages will be considered together to determine your social security payments.
Same-sex couples and families are now also equally recognised for the purposes of superannuation and taxation.
Same-sex partners of children’s biological parents can now be legally considered parents (unfortunately, these laws do not affect state and territory legislation which concern matters such as adoption, surrogacy and assisted reproduction, child support and so on.).
Same-sex couples and their children are now also eligible for coverage as a family group by the Extended Medicare Safety Net and the Pharmaceutical Benefits Scheme
A same-sex partner’s assets and income will also be considered when one (or both) partners applies for a disability or an aged care pension.
For more information about the 2008 changes, visit www.wearitwithpride.com.au
INTERNATIONAL RELATIONSHIP RECOGNITION
Despite these reforms, because of a general lack of equal relationship recognition schemes, no comprehensive anti-discrimination, and the difficulties faced by gender-diverse citizens, Australia is lagging behind much of the world. In Britain, same-sex marriage is not legal, however same-sex couples are able to have their relationships recognised via civil partnerships, which afford couples the same rights and responsibilities as marriage. Same-sex marriages performed overseas in countries such as Canada (where samesex marriage is legal) are recognised in the UK as civil partnerships.
CIVIL PARTNERSHIP SCHEMES IN AUSTRALIA MAP SOURCE Wikipedia http://creativecommons.org/licenses/ by-sa/3.0/
Status of same-sex unions in Australia. |||| Same-sex marriages |||| Same-sex civil unions |||| Same-sex domestic partnership registries |||| Same-sex domestic partnership agreements |||| Same-sex domestic partnership being debated |||| Defined state-wide as “De facto” |||| State same-sex marriage ban Definition Civil unions are a relationship recognition scheme, set up to allow same-sex couples to register their relationships without having a marriage.
De-facto De-facto De-facto Domestic Partnership Agreements
Why do they exist? Civil unions schemes under various names have been created around the world, in response to a push from de facto couples to be able to have a method of formally registering their relationship, rather than having to collect extensive proof that their relationship exists, a requirement not asked of any couple that is eligible to get married. Since many jurisdictions have been unwilling to allow same-sex couples to marry, civil unions or relationship recognition schemes have been developed to provide an alternate means of registering relationships.
Civil Unions “Registered relationship”
Civil Unions “Deed of relationship”
Do we need them in Western Australia? In WA same-sex & de facto couples have no means of registering their relationships, meaning they have to provide proof and repeatedly convince authorities that their relationship exists in order to access necessary relationship entitlements, such as wills, property division, guardianship, health care, statutory compensation schemes, state taxes, fees and licenses, and state superannuation and pension schemes. Factors Age requirement
Included under Births, Deaths & Marriages legislation
Terminated by application from either party, or court order
Wait time for approval
Wait time for dissolution
Recognises similar partnerships in other states automatically
Allows civil ceremonies to be conducted
Allows registered celebrants
INTERNATIONAL RELATIONSHIP RECOGNITION
The United States are in a similar position to Australia. Same-sex partnerships and marriage are the jurisdiction of individual states and territories, with Iowa, Washington D.C, Massachusetts, Vermont, Connecticut and New Hampshire now allowing same-sex marriage. However, the Defence of Marriage Act was introduced to ban same-sex marriage on a Federal level. Unlike Australia, this still allows individual states to enact laws that allow or recognize same-sex unions. In Australia marriage is an exclusively Federal power, thus only the Commonwealth Government can reverse the 2004 ban on same-sex marriage.
TAKING ON THE FUTURE
cases, civil unions have provided increased scope for other relationships, such as carers and similarly dependent relationships. This means that otherwise important relationships that had not been recognised previously were afforded benefits and legal status under the law. People of diverse sexuality and gender deserve nothing less than full equality. After centuries of persecution and disadvantage, we are finally reaching a semblance of legal equality in Australia. However, we still have a way to go. For years the sexuality & gender diverse community has relied on the Labor government to use its power when in government to pass progressive reforms for the better. While we saw some of this in the 85 law reforms enacted in 2008, the Labor government has since made it clear that they won’t be moving any further. In the current term of government, Labor has taken equal marriage rights off of the table, ignored the Human Rights Commission’s call for Federal anti-discrimination legislation, and actively blocked moves to provide recognition to people whose gender differs from the norm. We are now at a crossroads. Seemingly abandoned by Labor, and rarely acknowledged by the Liberal Party, supporters of full equality for people of diverse sexuality & gender have a choice to make. We can continue to wait for one of these major parties to drive reform when it’s politically convenient, or we can act now for full equality.
Contrary to popular belief, same-sex relationships are not recognised as equal under Australian law. In Western Australia, same-sex couples are entitled to de-facto recognition. This means that if they can provide enough evidence to convince the government that they have been living in a ‘marriagelike’ relationship for an extended period of time, enough to meet the prohibitive evidence requirement, they can be entitled to most of the same benefits as marriage. This is not equal. In Australian society, people of opposite sexes can get a marriage certificate and immediately have their relationship recognised, accessing all legal and social benefits that are associated with the title. Kevin Rudd has stated that he supports a nationally consistent scheme of civil unions, implemented by the individual State & Territory Governments of Australia. In some
Regardless of the content of any civil union scheme, it is both ridiculous and discriminatory to have one institution for opposite-sex couples and a separate institution for same-sex couples. The claim that marriage is a religious right, afforded to only men and women as laid out in the Christian faith, does not hold weight in a nation where we are supposed to have a separation between church and state, and in which people of different faiths, no faith, or who don’t love each other are entitled to marry. If it is the belief of the Commonwealth government that marriage should be reserved for the religious, then it should remove marriage from law and uphold a national civil unions scheme as the recognised system of relationship recognition in Australia. Gay & Lesbian Equality is willing to work with political parties interested in a civil unions scheme for WA, on the principle that civil unions schemes accessible to all loving relationships (not just samesex relationships) have the capacity to improve relationship recognition for a variety of people. However, it is important to recognise that this is not equality, so long as marriage is held as the central institution of relationship recognition, with exclusive benefits, and available only to an exclusive sector of society. People of diverse sexuality and gender have a right to equality before the law. Consistent with this human right, Gay and Lesbian Equality is committed to campaigning for full marriage entitlements for all loving relationships, regardless of sexuality or gender.
While most states and territories provide some protection on the basis of sexuality or sex / gender identity, the level of protection varies and the options for recourse are limited. There is no federal law specifically outlawing discrimination on these grounds, such as the anti-discrimination legislation that exists for race, sex, disability or age.
If a person feels discriminated against REFERENCES & RESOURCES on the grounds of their sexuality or gender identity, they can make a complaint Australian Human Rights Commission [AHRC]. www.galewa.asn.au (2009). Let’s Talk About Rights: National Human to the Australian Human Rights Commission Rights Consultation Toolkit. Australia: AHRC. www.equallove.info in some limited situations. The Commission can only make a recommendation for resolution Human Rights & Equal Opportunities Comwww.wagenderproject.org and has no power to enforce it. (AHRC, 2009, p.3). mission [HREOC]. (2009). Sex Files: The legal recognition of sex in documents and government records. Australia: AHRC.
In April 2010 the Rudd Labor government announced it’s response to the National Human Rights Consultation Report, which the Human Rights Commission had given it in October 2009, following almost a year of public consultations and submissions. One of the key points of the report was a significant number of submissions supporting the right to freedom from discrimination for people of diverse sexuality and gender, and the right to the highest standards of health, privacy and personal freedom. (National Human Rights Consultation Committee, 2009, p.90). Legislation won’t stop discrimination, but for those who suffer discrimination they would be able to access legal recourse and it would send a clear message to the community that discrimination against people on the basis of sexuality and gender identity is not acceptable in Australia. The Federal Government has decided against implementing a National Human Rights Act – which was the Australian Human Rights Commission’s preferred method of implementation (HREOC, 2009, pp.3-4). A national galaxy poll commissioned by Australian Coalition for Equality in 2009 showed that 85% of Australians supported the Federal Government implementing anti-discrimination legislation for sexuality and gender identity. It is time the government recognised the community’s support and implemented antidiscrimination legislation.
GENDER IDENTITY RECOGNITION
Imagine being born in a body that does not feel like your own, or that biologically differs from those around you. Imagine trying to tell your family, your friends, and the government, that you are not the gender they assume you to be. Imagine being told that unless you have invasive and dangerous surgery, you cannot change your legal gender to reflect your inner identity. The discrimination and abuse that sex and gender diverse people suffer every day is appalling, and the strength of those who manage to survive it is extraordinary. People who are sex and gender diverse deserve the same human rights as everyone else. Human rights are about equality and dignity for everyone. All human beings deserve recognition of and respect for their sex or gender identity. (HREOC, 2009, p.11).
National Human Rights Consultation Committee. (2009). National Human Rights Consultation Report. Australia: Department of the Attorney General.
www.glcs.org.au www.equalityrules.info www.wearitwithpride.com.au www.hreoc.gov.au www.equalopportunity.wa.gov.au www.pridewa.asn.au
SEX FILES: RECOMMENDATIONS
1: Marital status should not be a relevant consideration as to whether or not a person can request a change in legal sex. 2: The definition of sex affirmation treatment should be broadened so that surgery is not the only criteria for a change in legal sex. 3: The evidentiary requirements for the legal recognition of sex should be relaxed by reducing the quantity of medical evidence required and making greater allowance for people to self-identify their sex. 4: The special needs of children and young people who wish to amend their documents and records should be considered. 5: A person over the age of 18 years should be able to choose to have an unspecified sex noted on documents and records. 6: Information on the process and criteria for the legal recognition of sex should be easily accessible and user-friendly. 7: Documents of identity and processes required for the legal recognition of sex should not reveal personal information about a person’s past identity in relation to sex. 8: Laws and processes for the legal recognition of sex should use empowering terminology. 9: Where possible, sex or gender should be removed from government forms and documents.
DISCLAIMER A major roadblock on the road to equality is the legal and institutional discrimination that is faced by sex and 1. The information contained in this publication is correct at the date of gender diverse people. The Australian Human publication. However, the law may change at any time. Rights Commission consulted with the community on this specific issue, and on 2. This publication is distributed on the terms and understanding that the publishers are not the 17th March 2009 it launched the responsible for the manner in which this booklet is used nor for the results of any actions taken on report to government “Sex Files: the basis of information contained in this publication. the legal recognition of sex on 3. The contents of this publication do not constitute legal advice about individual situations and contain only documents and government general information about the law. No person should rely on this publication as legal advice regarding a claim or records”. The first big step to individual case. There are many differences depending on an individual situation which may affect an individual’s legal equality would be to rights. implement, at the very least, the first 9 of 15 4. This booklet is intended to provide users with a guide to the law as it affects people of diverse sexuality and gender. It recommendations reflects the law current at the date of publication or amendment. Although every effort has been made to ensure the accuracy and for change correctness of the information, no responsibility for any loss or damage arising from errors or omissions or from changes to the law outlined in which have not been updated by the authors is accepted. the report: 5. The information contained in this booklet is not intended to be a substitute for professional legal advice.
ACT NOW FOR EQUALITY
By acting as a community and applying pressure to the Government, we can achieve change on these 3 important issues. The reforms of 2008, 2002 and all those before came about because of pressure from individual community members, who took the time to call their politicians, write letters, sign a petition or attend a public event of support. We’ve achieved milestone reforms before on the road to equality, and we can do it again. Your contribution to the campaign is valuable, and extremely important to achieving full equality for yourself, or your family or friends who suffer discrimination.
Contact your Federal Member
Despite popular belief, members of Parliament don’t get many calls or emails about issues that are important to people. 40% of the electorates in WA are marginal seats – meaning it would only take a small swing in the vote to unseat the sitting member. This means that in a federal election year political parties are particularly worried about what Western Australians think. On the GALE(WA) website we have published simple lobbying tools to help you out with quick and effective contact.
Write a letter to your community newspaper
Actions you can take for full equality
Put this page up on your wall at home or at work, and once a week do something from this list.
Local politicians pay a lot of attention what is published in community newspapers, because they reflect what the community is concerned about. By taking the time to write a short letter once every couple of weeks, you can make same-sex marriage, anti-discrimination legislation and gender identity recognition the key topics for our communities in the lead up to the election. We know this works – Gay and Lesbian Equality committee members have kept a regular letters debate going in the Perth Voice for a few months.
Talk about the issues
Never underestimate the power of talking to people about the issues that are important to you. Only by talking to each other do we challenge our beliefs, learn new things, and come to understand the experiences of others. People of diverse sexuality and gender feel isolated because nobody talks about the issues that affect them – you can make a difference to their isolation and to community discrimination just by talking.
Become a member of Gay & Lesbian Equality (WA)
GALE(WA) works behind the scenes, meeting with ministers and party representatives to get legislation drafted, raised and passed in Government. We work with the community to keep pressure on the Government, and to support vital community initiatives that work to support people of diverse sexuality and gender in the community. By becoming a member of our network, you’ll receive action alerts at the most effective times that you can take action, and we’ll keep you informed about what’s happening on the road to full equality. Membership is free, and can be registered online at the GALE Website.
Join the Equal Love network
Equal Love Perth is a network of Perth community members who support equal marriage. They organise supportive rallies, festivals and events to show public support for same-sex marriage in Australia. By joining their network, you will receive notifications of public events where you can show your support publicly. Public demonstrations of support are important to engage new people and to get media attention, thereby keeping visible public pressure on the Government. To find out more about Equal Love visit www.equallove.info
Join or donate to the WA Gender Project
The WA Gender Project is a lobby, education and advocacy group that works to defend and advocate for the rights of Transgender, Transsexual and Intersex people and their significant others. They work with the government, organisations, community groups and the broader community to educate and improve services for TTI people in WA. To get involved in the WA Gender Project, download a membership form from www.wagenderproject.org
By all contributing to keeping the pressure on, we can make sure that the Australian Government is motivated to make change in the areas of relationship recognition, anti discrimination legislation and gender identity recognition.
GAY AND LESBIAN EQUALITY (WA) WEBSITE & CAMPAIGN PORTAL
To coincide with the launch of the At the Crossroads campaign, GALE(WA) has developed a new campaign website, where community members can find out more about important issues, and where you can find the tools and information needed to take quick, valuable action to create change on these issues. Lobbying kits, information packages and online lobbying tools will be added as the campaign develops. Go to www.galewa.asn.au to take action today!
Become a Gay & Lesbian Equality (WA) Committee Member
Get directly involved in the campaign! Our committee members work to keep the campaign going, and to keep these issues on the agenda of our governments. By contributing a couple of hours a fortnight, and bringing your unique passion, ideas or skills, you ensure that the campaign remains strong, creative and effective. We provide mentorship and training in lobbying, meeting with politicians & event / campaign management to ensure you have the support you need to drive us on the road to equality. Visit the GALE Website to get involved.