Sexual Orientation and Gender Identity Rights – Australia
On Friday, March 4th 1932, The Arrow, an Australian tabloid, published an article titled ‘Wide Open Immorality’ condemning the illegal same-sex marriages occurring between men in Brisbane.
“The growth of the pervert population of Brisbane, beautiful capital of Queensland, is astounding, and in the last year hundreds of these queer semi-feminine men have made the city their headquarters,” and the tabloid went on, “They conduct these luridly immoral gatherings absolutely free from police interference. Professional people have been invited as guests to witness the weddings — astounding revelation that perversion of this rotten type is so openly accepted in Brisbane. Nowhere else in the world — not even in Berlin, with its open homosexual clubs — is there the open boast that there are these ceremonies or the widespread extension of this sordid cult of male perversion.”
The deep-seated aversion to any acts outside of the heteronormative way of life was very real in Australia in 1932 and arguably still is. In fact, sexual orientation, gender identity, and intersex (SOGII) have been very controversial topics throughout the world for centuries. The reasons for such hostility, at least in recent centuries, can generally be linked to three things: religion declared homosexuality a sin, psychiatry determined gay and lesbian humans to be mentally ill, and laws criminalized homosexual sex acts (Carter, 2014). In 1973 the Australian Medical Association did declassify homosexuality as a mental illness. This was the first major step in understanding the lesbian, gay, bisexual, trans, intersex (LGBTI) community in Australia. However, this is a step for homosexuality and no notable discourse was taking place regarding ‘trans’ people. The prefix ‘trans’ is used in several terms such as transvestite, transexual, and transgender, which all have distinctive definitions.
The truth is that just like heterosexuals, LGBTI people are not a uniform group. Lesbians, gays, bisexuals, transvestites, transexuals, transgenders, and intersex people all face a different set of challenges (Branson, 2011). In recent years, distinction within the LGBTI community, especially around ‘trans’, has become clearer due to public discourse and increased awareness but misconception is still an issue. As noted in class, Western societies tend to operate within a binary framework and such diversification under very few umbrella terms seems hard for people to conceptualize or accept. Arguably, the confusion experienced when trying to understand LGBTI people should not be surprising. LGBTI people have banded together for decades, especially in the past decade, because they shared a commonality – marginalization. Heteronormative, patriarchal society does not have a place for anything else. But when you look deeper, there are innumerable differences between all the people under that one umbrella term. While recognizing the united struggle of LGBTI people, acknowledgement of specific needs and rights is of utmost importance. Fortunately, advocates like the Human Rights Commission of Australia and many, many other NGOs realize that. As the Commission states in their 2014 SOGII Snapshot Report: “…it is important to acknowledge that LGBTI people are a diverse group and in this context, not all SOGII rights will be relevant to all members of the LGBTI communities. The Commission holds an awareness of, and respect for this diversity, while working within the collective umbrella term where relevant.”
For decades, human rights have, on an international level, been declared and set forth by the United Nations, after which individual nations are encouraged to sign and respect those rights. Australia has signed and, in doing so, agreed to uphold seven of the main international human rights treaties:
- International Covenant on Civil and Political Rights
- International Covenant on Economic, Social and Cultural Rights
- Convention on the Elimination of All Forms of Racial Discrimination
- Convention on the Elimination of All Forms of Discrimination against Women
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- Convention on the Rights of the Child
- Convention on the Rights of Persons with Disabilities
Per status quo there is no international human rights agreement that deals explicitly with SOGII. That being said, people of all orientations and identities are human beings and thus entitled to all fundamental human rights listed out in the Universal Declaration of Human Rights and all other international human rights agreements. When we talk about SOGII/LGBTI rights, ultimately we are just talking about ensuring that LGBTI people are protected equally, without discrimination, under the rights which everyone else is protected.
Over the past few years, the Australian federal government has made strides to protect LGBTI people and generally has adhered to fundamental human rights and applied them to all people – with the exception of the right to marry. As of August 1, 2013, it became unlawful under federal law to discriminate against a person on the basis of their sexual orientation, gender identity, or intersex status (SDA Amendment Act). Furthermore, as of July 1, 2013, the Australian federal government recognises that individuals may identify and be recognised within the community as a gender other than the sex they were assigned at birth or during infancy, or as a gender which is not exclusively male or female. They demand it be recognised and reflected in their personal records held by Australian Government departments and agencies (Australian Government Guidelines on the Recognition of Sex and Gender).
In regards to marriage, propositions to allow same-sex marriage have been repeatedly shot down by the Australian parliament. While the right to marriage is denied, the federal government does recognize ‘de facto relationships’ which is defined as a relationship that two people who are not married or related by family have as a couple living together on a ‘genuine domestic basis’. It can exist between two people of the opposite sex, or between two people of the same sex (4AA, Family Law Act 1975). The recognition of ‘de facto relationships’ is good for legal purposes if the couple were to separate, but the lack of access to marital status for same-sex couples is plain discrimination. The stance is confusing, really. The government says discrimination on basis of sexual orientation is illegal yet they themselves are discriminating on the same basis.
Things do get more complicated in Australia for LGBTI people because the Commonwealth consists of many states/territories, which all have their own laws and regulations. While the anti-discrimination legislation and the right to legally change gender extends across all territories, discriminatory policies are still found in some territories. For example, all territories allow same-sex couples to adopt and to foster children except the Northern Territory, South Australia. The state of Queensland forbids adoption while allowing foster-parenting. In ‘Part 4: Recruitment and selection of prospective adoptive parents’ of the Adoption Act 2009, the Queensland legislature states “a person is eligible to have his or her name entered or remain in the expression of interest register if the person has a spouse who is not the same gender as the person.” And in South Australia legislature it is stated that a couple must be married for at least 5 years before being permitted to adopt (Part 2, Adoption Act 1988). Considering that same-sex marriage is forbidden throughout all of Australia, same-sex couples are inherently prohibited from adopting in South Australia.
There are various non-governmental organisations in Australia that advocate for equal treatment and legislature for LGBTI people. Such organisations are, but not limited to: Kaleidoscope Australia Human Rights Foundation (est. 2013), Australian Marriage Equality (est. 2004), National LGBTI Health Alliance (est. 2007), and The Australian Human Rights Commission. In particular, The Australian Human Rights Commission, which was established in 1986, has been very vocal in regards to the injustices to hundreds of thousands of people throughout Australia by producing qualitative and quantitative reports and making recommendations to the Australian government.
While there are numerous organisations advocating for SOGII rights in Australia, there are equally as powerful forces detesting these rights. Of note are religious organisations. In fact, most opposition to SOGII rights in the world today is based on religious belief. The Australian Christian Lobby (ACL), which envisions “Christian principles influencing the way we are governed, do business, and relate to each other as a community,” works hard to connect with politicians and policy makers and prevent anti-heteronormative bills from being passed. In addition to the ACL is the Australian Family Association, which also works to impose its belief in a heteronormative lifestyle on all Australian citizens by lobbying.
Overpowering the opposition, SOGII rights are gaining traction and seemingly every generation gets a little more liberal. When recalling the reasons for opposition to LGBTI people – religion, law, and classification as mental illness – things are looking up. Homosexuality is no longer classified as a mental illness, laws across the Commonwealth are considerably more inclusive, and many people are realizing that LGBTI people are not a threat to their religion. The fight for equality is far from over but hope is far from lost.
Adam. (n.d.). Glossary of terms. TransWhat? Retrieved from: http://transwhat.org/confused/
Australian Christian Lobby. Retrieved from: http://www.acl.org.au/about/