Rodney Croome . gay advocate

Same-sex entitlements – 2

HREOC compromises an otherwise excellent report by endorsing one path to spousal rights above others.

The Human Rights Commission report into same-sex couple entitlements has been launched in Sydney, following its tabling yesterday in Federal Parliament.

Not surprisingly, the report has yet to generate the number of headlines sparked by a Get Up! poll showing dramatically increasing levels of support for same-sex marriage.

That is probably because, as predicted, both major political parties politely moved straight on to other issues.

Despite calls from LGBT human rights groups for detailed commitments to reform, including a timetable, the Government has left it at “we oppose discrimination”, while the Opposition has replied, “we oppose it more”.

In a world where one Packer relationship is considered more news worthy than 20,000 gay ones, LGBT people and our allies have a lot of work ahead to keep the HREOC report alive.

In part, the report is its own best advocate. The way it draws on personal stories means it will speak to a broad range of Australians for many years to come.

But right now the urgency of reform means that voice needs magnifying. I understand Get Up! is planning a campaign and that a number of mainstream organisations are preparing to speak up for change.

Return soon for more details.

~ What, why and how?

In the meantime, it’s worth spending a little time on the substance of the report.

HREOC may not be able to tell us when discrimination will be removed. But it does have clear views on what discrimination there is, why it needs to be eliminated and how that should occur.

What? 58 pieces of federal law from superannuation through Medicare to pensions and parenting.

Why? Because of the financial cost and personal trauma, not to mention blatant human rights violation.

Reactionaries like John Anderson might be so blind to the love and commitment in same-sex relationships that he doesn’t get it. But most other Australians do.

Then there’s “how?”.

HREOC strongly – very strongly – recommends amendment of the various definitions of de facto partner to include same-sex partner.

This seems reasonable in itself. But when we look at how it treats the alternatives - interdependency, marriage, registries - things begin to fall apart.

The recognition of same-sex couples as interdependents is dismissed as impractical and “insulting”.

Sure there are practical problems with interdependent recognition including consistency between jurisdictions and potential difficulties qualifying for rights, but there are similar problems with de facto recognition which the report glosses over.

Sure the inclusion of same-sex couples in definitions of interdependency is a politically-expedient response to on-going social prejudice against these relationships. But so is the HREOC report's focus on de facto recognition instead of marriage. When it comes to political reality, the fact is that interdependency recognition for same-sex couples was begun by Labor and now has bi-partisan support. That's more than we can say for de facto recognition of these relationships.

As for the claim that it “insults” same-sex couples to be lumped in with companionate relationships, isn’t it just as “insulting” for committed same-sex unions to be considered “like a marriage” as “de facto” suggests, but never real marriages?

Moreover, isn’t this exactly the elitist our-relationships-are-better-than-yours attitude that currently relegates same-sex couples to the back of the legal bus?

I agree it's unjust for same-sex partners to be only ever recognised as in interdependents and never as de factos or married, but that's a problem with our exclusion from legal definitions of conjugality, not with the idea of interdependency as such.

Tasmanian relationship law provides an example of how we can begin to move beyond conjugality by rolling marriage-related relationship categories like de facto into entirely new ways of legally defining relationships that provide all significant personal unions with virtually the same legal status. But frustratingly the HREOC report ignores this. Its preference is to complete the late 20th century project of de facto law reform rather than acknowledge a more progressive 21st century expansion of relationship law.

The report’s authors might retort that their mandate was limited to same-sex couples, and the weight of submissions endorsed de facto over interdependency. My response is that’s no reason to so strongly dismiss a way of reconceptualising relationship law that has begun to take shape in Australian, which has benefitted thousands of people in many areas of federal and state jurisdiction for a generation, and, if its potential is fostered, holds out the promise of benefiting many more.

The report’s authors have no such defences to fall back on when it comes to same-sex marriage. There were plenty of submissions in favour of that.

HREOC thought the issue too controversial to address. This was despite the fact that, in practical terms, as a route to relationship rights, marriage is far easier to access, far less contestable, and more consistently recognised within and beyond Australia, than de facto status.

I agreed with HREOC’s pragmatism, until I read the report.

In its chapter on parenting rights and responsibilities, HREOC recommends that all states and territories follow the lead of WA and ACT by allowing same-sex couples to be assessed as the potential adoptive parents of children relinquished by other people.

It even raps the Government over the knuckles for its proposal to ban same-sex couple overseas adoption.

Are these issues any less controversial than equal marriage?

Are they more relevant to financial and workplace entitlements?

No, they’re not.

I applaud HREOC for its strong stance on equal parenting. But this has made its decision to avoid equal marriage much harder to defend.

The report displays a similar unfortunate ambivalence when it comes to other ways of formally recognising relationships, labelling them “helpful but not necessary”.

This directly contradicts evidence to the HREOC inquiry from people who failed to access relationship rights because they could not certify their relationship status, as well as evidence from those couples who had been able to obtain entitlements because they were in a formalised union.

Not only is this issue glossed over, but the one scheme we have in Australia for formally recognising same-sex relationships – the Tasmanian relationships registry - is misrepresented in a way which diminishes it.

Echoing a recent Victorian Government paper, a recent statement by Kevin Rudd, and before that, the views of the ACT Government, the HREOC report claims that,

“Registration of a relationship does not confer legal rights in itself but it may assist in demonstrating the existence of a de facto relationship.”

That’s simply not true. As a Tasmanian resident, and without being in an existing relationship, I could register a union tomorrow and obtain the same rights as a married partner in state law.

The HREOC report goes on to claim,

“…it seems that few couples have registered under these schemes”

and then note,

“there is evidence of a low take up of registration regimes internationally, ‘with a much lower take up by women, and a high urban concentration’.”

In reality the proportion of registering couples in Tasmania is almost exactly the same as in places like New Zealand or the Czech Republic with civil union schemes, while the gender and geographic balance in Tasmania is fairly even.

Registries, at least in Australia, are not the inner-urban, gay-boy folly all this suggests.

~ Maximising flexibility and choice

There are many different models when it comes to accessing relationship rights. This confuses some people. Others seize on one model as the best.

Since 2004 an increasing number of Australia’s LGBT advocates, including most recently the NSW Gay and Lesbian Rights Lobby, have responded to the options and rivalries by pointing out that different forms of relationship recognition can co-exist.

For example, it would be quite possible to have a system whereby there is presumptive recognition for a broad range of conjugal and non-conjugal couples, registries for couples who can’t or don’t wish to marry, and equal marriage for same and mixed sex couples.

Something like this already exists, or is being seriously considered, in the Netherlands, Belgium and some Canadian provinces.

The principle behind such a set up would be allowing all couples maximum flexibility and choice when it comes to how their relationships are legally recognised and enfranchised.

Sadly, despite numerous submissions pointing out the importance of relationship law reform based on flexibility and choice, HREOC has retreated to the one-model approach.

I can understand why HREOC felt the need to recommend one path to relationship rights above others. An end to discrimination is long overdue and requires decisiveness.

But there was no need for it to be quite so dismissive of the alternatives to recognising de facto couples.

It could have been agnostic on interdependency, marriage and registries without compromising the impact of its final recommendation.

Instead it effectively elevated de facto status to the kind of pedestal some people put marriage on.

This has the potential to seriously compromise the impact an otherwise excellent report by provoking unresolvable debates about which system is best, which law is best, which relationships are best…and in the process obscuring the report’s central message about the tragedy of discrimination.