Rodney Croome . gay advocate

Discrimination against same-sex couples in marriage and parenting law: history, implications and solutions

This address was given at the FRSA Conference in Melbourne on 4.11.10

In 2008 the definition of a de facto relationship in all those federal laws granting relationship entitlements and protections was extended to include same-sex relationships.

This was an important step.

It brought to a close a movement which began 14 years earlier at a state level to provide same-sex couples and their children with the legal recognition and protection enjoyed by heterosexual de facto couples.

But it also highlighted those areas where legal discrimination against same-sex couples is till entrenched.

The most obvious area, and the one that has received most attention, is the Marriage Act.

For a long time the common law prevented marriages between people of the same sex. When this was challenged in 2004, by two same-sex couples who sought to have their legal Canadian marriages recognised by an Australian court, the Howard Government, with the support of Labor Opposition, amended the Marriage Act to explicitly preclude same-sex marriages and prohibit the recognition of such marriages from overseas.

The other area of continued discrimination is in laws governing parenting. For example, in some states there are laws that preclude same-sex couples from being assessed as potential adoptive parents, or fail to allow co-mothers to be recognised in law, or both. Co-fathers in surrogacy arrangements can also find it hard to be legally recognised.

The damage and disadvantage caused by this discrimination runs deep.

Without a marriage certificate, it can be harder for same-sex partners to prove our relationship entitlements if these entitlements are challenged – something which occurs far more often to same-sex partners because of continued prejudice against our relationships.

Exclusion from marriage also

a. says discrimination on the grounds of sex and sexual orientation is still permissible,
b. sends out the message that our capacity to love and commit does not meet the standards commonly associated with marriage, and
c. excludes same-sex partners and their families from one of society’s most important institutions of connection, inclusion and belonging, connection not just between partners, but between partners their families and their communities

Moreover, discrimination in marriage damages marriage itself. By making marriage a vehicle for homophobic prejudice at a time when such prejudice is becoming ever less acceptable, opponents of marriage equality are making marriage ever less relevant.

The same goes for discrimination in parenting laws.

This causes practical legal problems and emotional trauma for co-mothers or co-fathers and their children whose relationships are not recognised. The same problems exist for children who cannot be adopted by their co-parent, or foster parents, just because these parents are in a same-sex relationship.

On top of this, discrimination in parenting sends out the message that there is something deficient and second-rate about families headed by same-sex couples, and that discrimination against same-sex attracted people and everyone intimately associated with us is acceptable.

Just as pernicious are the ways in which this continued discrimination is justified.

Defenders of discrimination in marriage often refer to religion. They’re careful never to give too much detail. They rarely declare homosexuality a sin or marriage a holy sacrament. This is because they know full well that religious precepts no longer have a home in marriage law. We allow marriage between people of different faiths and no faith. We allow divorce even though Jesus was very much against it. We prohibit arranged marriages and child betrothal though they are all commonly found in the Old Testament.
So, instead, defenders of marriage discrimination speak euphemistically about “faith” and “values”. Former Prime Minister, Kevin Rudd, reportedly said his opposition to same-sex marriages was because of his “personal faith”. Current Prime Minister, Julia Gillard, says her opposition is out of respect for Australia’s “Christian heritage”. Current Deputy Opposition leader, Julie Bishop, simply says it is “because I am a Christian”.

Defenders of discrimination in parenting follow a similar rhetorical path. It is no longer acceptable to condemn gay people as paedophiles and child abusers, so they resort to the mantra that children deserve, and/or do best if they have, a father and a mother. But this is not innocuous as it may seem. Not only does three decades of social research show it to be a lie. It is also profoundly sexist. It assumes that our gender is more important than our individual character, abilities or morality when it comes to how we relate to others. Leaders who talk about a child’s need for a father and a mother, never say exactly what need is being filled, and most would probably not condone sexism in any other context, but still they are opening a Pandora’s Box of sexist assumptions, a box full of fathers as traditional football kickers, car drivers and bread winners, and mothers as traditional lullaby singers, nose wipers and kitchen hands.

When defenders of discrimination in both marriage and parenting law are challenged on these points they sometimes fall back to other, no-less-offensive positions.

One is that same-sex relationships are somehow different to opposite-sex relationships, by which they usually mean shorter, less stable, less loving and less committed, something social research again shows to be untrue. The really nasty old stereotypes about same-sex attracted people may have been vanquished, the ones that upheld criminal laws against us or portrayed us all as a threat to families. But newer stereotypes have taken their place, stereotypes which mean we are still seen to stand outside or at the periphery of everyday family life.

I’ve gone into detail about the rationales for discrimination because clearly they affect more than just gay and lesbian Australians.

Legal discrimination against same-sex couples in marriage and parenting law is being used to re-admit into Australian family law the kind of God-ordained, patriarchal and judgemental attitudes that we pride ourselves on having removed.

Sure legal discrimination against same-sex couples in areas like marriage and adoption is centuries old. So are the negative religious and cultural attitudes towards same-sex relationships.

But what we are seeing is relatively new religious, sexist and prejudiced attitudes, or at least old attitudes in a new more subtle form, taking advantage of existing discrimination to establish and validate themselves.

Until this discrimination is removed, until same-sex couples and their families are treated by the law in exactly the same way as all other families, our boast that we live in nation governed by modern, secular, inclusive and egalitarian family law is a hollow one.

So, how do we bring this discrimination to an end.

The answer is simple. We must tell our stories. My experience in Tasmania, where we have seen laws about same-sex relationships go from being the worst in the nation to the best, is that it is stories about the everyday lives of gay and lesbian people and their families are which make change.

We saw the same in the recent debates in Victoria and NSW about the reform of parenting laws.

And we are seeing the same at a national level in the debate about marriage equality. As policy-makers and the general public become more familiar with gay people and are aspiration for the same rights, respect and family life enjoyed by others, so they are coming to accept that discrimination in marriage is unacceptable. Already 62% of Australians support marriage equality and there is a growing movement in both major parties to translate this public support into legislative action.

The key challenge faced by advocates for marriage equality is to ensure these stories which are creating change continue to be heard, and heard ever more loudly.

To this end, groups like Australian Marriage Equality are planning workshops across the country to help those directly affected by marriage discrimination to find ways to express their support for reform in terms that others can directly relate to.

I’d urge you to do the same in your practice as family and relationship service providers: when you come across same-sex partners and their family members who are angered or discouraged by discrimination empower them to find the ways and means to tell others about how discrimination affects them, be it in a letter to the editor, a meeting with an MP, or through conversations in the workplace.

I believe personal stories are so important that I made them the mainstay of my contribution to a book on marriage equality published earlier this year by Pantera Press.

To end I’ll quote you two stories from the book.

The first illustrates how discrimination against same-sex partners affects more than just the partners themselves.

“I lived with my mum and her same sex partner from the age of 10. I could not have had a better set of parents. They are my role models when it comes to how a long term relationship should look, and I hope my husband and I are as happy as they when we have been together for 20 years. Yet these women, who I love dearly, are denied the opportunity to legally marry. They came to my wedding and celebrated with me - yet I cannot celebrate the same happy occasion with them. Their union is like a marriage in every sense, so why are they denied that legitimacy? Why was I denied the legitimacy of my parents being married?”

The second story underlines the how family and marriage law should be about building bridges, not barriers, fostering inclusion, not exclusion.

It is from an elderly gentleman, Frederick Weisinger, who lives in Sydney, but who grew up in Vienna, hence his charming turn of phrase.

“I have been in a happy relationship for 38 years. My partner and I were both migrants arriving to Australia in the 50s. We were a controversial pair. He was German and I was Jewish who not so long before spent my childhood and adolescence in a concentration camp. Yet we overcame a great obstacle because we have found love was stronger than hate. We built our lives, together. We brought family to Australia, who in turn prospered and had families of their own. We lived in the same house we bought and had a wonderful relationship with our neighbours and people at large. Our foundation was solid. We did not shake any heterosexual foundations.

“We would have loved to be married and be part of society instead of outsiders. I think that in a more enlightened world there should be more understanding and tolerance for persons of the same sex to be allowed to marry and live equal as heterosexuals. With the staggering number of divorces around me I wonder how much stronger our foundation was by comparison.”

Thank you