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Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill
Marriage Amendment (Same-Sex Marriage) Bill

GOLDNER, Ms Sally, Executive Director, Transgender Victoria

MARLOWE, Ms Felicity, Convenor, Rainbow Families Victoria

PARK, Mr Dale, Co-Convenor, Victorian Gay and Lesbian Rights Lobby


CHAIR: I welcome you and thank you for appearing before the committee today. I invite each of you to make a brief opening statement, should you wish to do so.

Mr Park : The VGLRL, as we are also known, thanks you for the opportunity to appear. We are optimistic that this hearing can lead to a way forward for marriage equality for all Australians. The VGLRL is a community-based advocacy group which works towards equality, social justice and human rights for lesbian, gay, queer bisexual and same-sex attracted Victorians. We work with and for the community in a consultative and respectful way with other lesbian, gay, transgender, bisexual and intersex groups, and with other organisations that share similar values and goals.

Equality before the law is something that every person should be able to experience. Marriage should be no exclusion or exception to this. Whilst the VGLRL welcomes the introduction of this bill, as noted in our submission, there are a number of areas that need amending to ensure the bill represents equality of LGBTIQ people. We welcome the change in definition of marriage to be between two people. We believe inclusive language should be reflected throughout the bill and that the recommended title of the bill, same-sex marriage, be changed so it is inclusive for trans and gender-diverse people.

We strongly support religious freedoms and recognise the support marriage equality and the LGBTIQ community has received from many people and organisations of faith. We do, however, believe that this bill in its current form would extend religious exemptions, and this is wholly unnecessary. Whilst recognising the need for ministers of religion to be able to refuse to solemnise marriage, this should be done within the broad limits of the current legislation. As we have heard from a minister early this morning, there is no further expansion necessary and there is absolutely no reason to specifically mention gender or sexual orientation as the reasons for ministers to not solemnise marriage. We do not believe it is appropriate for marriage celebrants to be able to refuse to marry people on the basis of conscientious or religious beliefs. The refusal of goods or services based on the gender of married or marrying couples should not be permitted as it relates to a commercial interaction rather than a religious worship or service.

We believe the Australian people support marriage equality and that, as a progressive, inclusive and supportive country, marriage equality can successfully be achieved in Australia, as it has been in so many other countries.

Ms Goldner : I would very much like to acknowledge the original inhabitants of the land on which we meet and pay respects to elders past and present. I would also like to acknowledge our lesbian, gay, bisexual, trans and intersex elders, including Sistergirls and Brotherboys for their unique contributions to diversity and intersectionality on and around the land.

Two longstanding Australian values are egalitarianism and a fair go. When translated across all people they boil down to human basics of equality and fairness. We frame our address and approach to questions arising from this committee process in that light. We are all born equal. Sadly, and inappropriately, for trans and gender diverse people and others, such as lesbian, gay, bisexual and intersex people, this equality has been taken away from us by others with neither consultation nor consent. This theft of our equality needs to end, and end now, including in regard to the rights of trans and gender diverse people and marriage.

The classic Australian film The Castle talks about 'people who love each other, who care for each other', and to home being 'a place for the family to turn to': people, family, love, with no qualifications, no exemptions. Spot on, Darryl John Kerrigan. In this light, marriage and love are also without qualification. We recognise totally that some people have genuine differences of opinion and we respect that. Some others, however, seem intent on constantly throwing up delays, diversion tactics and technicalities because they think they can delay or even stop marriage equality entirely. To those people we need to borrow again from Darryl Kerrigan and state firmly: 'Tell them they're dreaming.' A fair go and equality—marriage equality fits those criteria perfectly. It is time, regarding marriage equality in Australia, to just get it done.

Ms Marlowe : I am here today to represent the children of lesbian, gay, bisexual, transgender, intersex and queer Victorians. We are a representative community incorporated body that has operated in Victoria for 10 years. Our key message as Rainbow Families Victoria is to remind the committee and, I guess, the government that it is the case that marriage is no longer the sole, primary foundation of the family in Australia; that that concept has long gone out the window, with the introduction of divorce laws, single parenting, assisted reproductive treatment; and that marriage no longer defines the role of the family or the way that a family can be formed and, in fact, that Australian families come in all different shapes and sizes. I say that in light of the fact that I know that some submissions and people representing other organisations may also talk a great deal about the link between family and marriage, and I wanted to make that clear—that we think that there is no longer that link in the strong traditional sense that some people believe there may be.

We are also representing the fact that we wish to bring up our children in a society in Australia where systemic discrimination based on the person that you love is no longer acceptable. Also, we wish to bring up our children in an Australian society where a person's religious beliefs or spirituality is respected. I take this opportunity to remind the committee that there are many LGBTIQ people in our families who are religious, who celebrate spiritual and religious events, and who bring their children up in those particular faiths.

We also wish to bring up our children in a place where no-one is vilified or victimised for their sex, sexuality, gender identity or intersex variation, and, particularly in the case of our children, where no-one is vilified or discriminated against based on the make-up of their family or the sexual or gender identity of their parents or carers.

Standing here today we want to make it very clear, too, that we do not disapprove of the suggestion that religious bodies and organisations can refuse to solemnise a legal marriage in a ceremony. We believe that that is the right of people who have that role to do so. We just want to say that we do support that particular amendment under section 47.

We have other things to say, but I will leave those for questions at this stage.

CHAIR: Okay. Thank you very much. I guess this is a question to Mr Park and Ms Marlowe. You both made the comment, about religious freedoms and protections, that you strongly support them. A number of the submissions have made a comment about the fact that, under the ICCPR, which is one of the seven international covenants Australia has signed up to, those rights are individual rights as opposed to organisational rights. In terms of balancing those rights with the right to nondiscrimination, do you have a view as to how we can protect someone, whether it be a celebrant or, indeed, a business owner, who wishes to exercise their individual freedom of conscience or religious belief?

Ms Marlowe : I guess this is the point where we say that none of us are lawyers or legal experts at all. I stand here particularly as a community representative seeking to inform the committee of the concerns we have about these kinds of exemptions—not just 47 but the other exemptions, particularly for marriage celebrants, which I understand will also include military chaplains, civil celebrants and potentially other government employees, which it would be good to get clarification on if that is the case—and that there should not be any ability for those particular people in a civil role, constituted as they are now, to refuse or discriminate against same-sex couples.

And while I am not directly answering your question I will take this opportunity to talk about a concern we have around legislative creep. If there were that concession under section 47A to be included in the proposed amended act that those civil celebrants or marriage celebrants, and I am not talking about religious ones, would therefore also, potentially—it is opening the floodgates to those particular civil celebrants to say, 'Well, actually, we refuse to solemnise the funeral and memoriam of a same-sex couple where a partner has died or where they refuse to have a celebration around the life of a stillborn child, or where they refuse to solemnise a naming ceremony for a child or a set of children in a family.

So, where is the end point for this amendment? Yes, it is in the Marriage Act, but will it open the floodgates in a form of legislative creep to allow those civil celebrants to refuse to do a number of activities? That is really concerning for our families and our communities. The ones I name particularly are celebrations, but often they are done at points where people are in crisis or are very upset or something might have happened that is a shocking event, and they are looking for someone who can give them a ceremony and an experience that is in memoriam or is in recognition of someone's life, including a child's life. So, where will it end? That is our question for the committee and the government.

Mr Park : In addition to that, one thing is that currently within Victoria, for instance, if we are thinking about it from a goods and services perspective, is that if I walked into a bakery and said, 'Could you please bake me a cake for my husband; it's his birthday' and they refused me, I am protected under equality legislation. But if it was, 'My partner and I are going to get married; we're going to become husbands; could you bake us a cake?' then to allow them to refuse to bake that cake on those grounds does not seem just. We currently have legislation in place to protect around religious freedoms. Listening to the previous speakers, I was unaware that that was not the case in all states. I am based only in Victoria. But we would definitely support the fact that there is federal legislation protecting religious freedoms aligned with LGBTQI rights. As Felicity mentioned, we are not lawyers, so we cannot get into the nitty-gritty of that. But the fact that marriage equality hopefully will exist does not mean that all of a sudden gay, lesbian, trans and intersex people who have been in relationships have not been protected from goods and services discrimination before, and that should not cease just because marriage equality may exist.

CHAIR: One of the solutions that a Canadian province has put forward is what they are calling a single entry point solution. So, rather than you approaching an individual celebrant, for example, given that it is a function provided by the state, you essentially contact your local authority and say, 'This is us; we want to get married'—or have a naming ceremony or whatever. They then say; 'Okay, what are your circumstances? Here's a panel of four or five who can meet your needs. Feel free to pick who you want.' That allows the celebrants to identify things they will or will not do and it avoids having the person, whether they are in an intersex or same-sex couple, having the offence of asking and being knocked back. What would your response be to that kind of intersection between that provision of a commercial service and the community?

Ms Marlowe : I think for me that perfectly raises the practical application of these suggested amendments in the actual day-to-day lives of people living in the community, going down to their local shops and finding out about goods or services or whether a hotel or a hall is going to allow them to have the wedding cake that they want or to have their ceremony in the hall that they have a particular connection to. That is one of the questions we raised in our submission: what is the practical application of this?

One of the clear things that Rainbow Families Victoria and New South Wales took to the anti-plebiscite campaign last year was our concern about the $7.5 million that was at that point to be attributed to a no and also to a yes campaign. Our concern was about the limitless amount of advertising—whether it is flyers, billboards, placards, notices in shops, whatever it might, never mind social media—and that that would be an overt display of homophobia and transphobia to win a particular argument. The one thing that was definite about that was that it was time limited for 11 February. As it was knocked back, we no longer have that case which has meant I can enjoy my summer holidays. However, we would be concerned that this particular amendment could then say that there could be limitless, never-ending advertising in local businesses, shopping centres, church halls, community halls, council halls, parks and gardens. Where would it end? And would every single person know that they had to register? Would franchisees of a big organisation all have to register or would the main body like Dan Murphy's or whatever it is say, 'We believe that it is okay.'

CHAIR: No, I am talking here about celebrants as a state provider function.

Ms Marlowe : I know. If you do that for celebrants, why wouldn't cake shops say, 'We want to do it too' or every franchisee that owns a Michel's Patisserie in a local plaza say, 'We want to put a rainbow flag' or 'We don't'? It just sends this message that everywhere you go you are looking around and going, 'Is that the place that is going to discriminate against me and my family and my kids or is this the place that is going to be welcoming?' Do we really need to live in a society where you have to wonder everywhere we go—every shopping centre, every community event? What about when we go to family celebrations that are in halls or with celebrants who say, 'I no longer support same-sex couples'? We have to sit there through a ceremony, be a part of a loving commitment ceremony of potentially a heterosexual couple and not get any recognition or understanding because of the posters that are at the doorway that this centre does not support same-sex couples to celebrate their love and commitment to each other? Similarly, a local bakery. What is going to stop them putting up a sign?

How are we going to say to our children that we live in an equal, caring, non-discriminatory society in Australia, where you should stand up for the rights of everybody regardless of whom they love, regardless of their gender identity, if we allow amendments like these to go forth in the Marriage Act? It should have nothing to do with marriage. It is a piece of paper and that is all it is. It is a legal document.

Senator PRATT: One of the contradictions that has not been thought about in the amendments that are before us is if you are a transgender person who has had a recognised gender reassignment and you are marrying your opposite sex partner—perhaps you were born genetically male and become recognised as female, as you should be, and you seek to marry to your male partner. The provisions in this law that would allow discrimination against you as a couple would not be applicable to you; you could not be discriminated against. That is because your gender is legally recognised, in spite of the tenets of the religion perhaps nevertheless objecting to that marriage. But if you were seeking to get married as someone who had not been legally recognised by the law as your recognised gender identity, then the law would apply differently, despite the fundamental religious element of that marriage and the way it is treated by the religion being the same in either case. I wonder if you, Mr Park and Ms Goldner, would like to comment on that.

Ms Goldner : If I have the gist of the question right, if it is a transgender person who has completed their journey and is able to change their birth certificate, effectively they can marry, but someone who perhaps has not cannot. We have a term within the trans and gender diverse community for people who have completed their journey and perhaps do not want to talk about the first part of their life, and we call it 'in stealth'. In a way, I think what I am hearing is that the exemptions would not apply to someone in stealth but someone who was more either visual in terms of their presentation or perhaps was not in stealth would face discrimination. So it actually creates total lack of equality and it almost creates two classes of transgender people. It also puts extra pressure on that trans-person in stealth.

As an educator, we talk about one of the effects of facing negativity—that is, a sense of hypervigilance. Felicity touched on this in the answer to the previous question. You always have to be on the look out: where is it safe? Where isn't it? This would just add to that again. It would not add to their mental health and wellbeing. It would be highly detrimental to the mental health and wellbeing of trans and gender diverse people, which is already considered by one report in particular—Curtin University's first national trans and gender diverse mental health study in 2015—as, in terms of groups in Australian society, one of the worst there is. I think we have to turn that around, and that means being highly valuing of diversity, including the case of gender diversity, and not adding further detriment.

Senator PRATT: Thank you, Ms Goldner.

Mr Park : I think Sally has covered a lot of things. Establishing two sets of transgender people—as maybe Sally was referring to—is a complete failing of our current legislation, which does not protect people and which sees gender and gender identity as being completely formed around your physiological make-up rather than everything else that goes with it—

Senator PRATT: Or your legal identity.

Mr Park : Absolutely—which is deeply concerning. Just quickly on what the previous marriage celebrant said. What I would like to ask is: why would we use civil celebrants and not ministers of religion, and why would they be able to hold a particular role that discriminates against one group over another? Are we also going to have a register where they say that they will not do interfaith marriages, where they will not do marriages of people of different ages or of different racial backgrounds?

Ms Goldner : I would just like to add to the issue of civil celebrants, if I could. I have had an interesting 51 years. For a while I studied careers counselling, and I was thinking: what would be the overarching, elevator-speech line of a civil celebrant? To bring two people together in love. If they are refusing to do that, I question why they have chosen that occupation.

Similarly, I have an accounting background, and my parents ran small businesses. They ran them successfully. They were able to retire in their mid-50s, so they did something right. It was called customer service. I find it strange that any small business would just refuse outright to serve someone just for being who they are. The thing is that I have not heard of any particular civil celebrant yet, individually, who has stood up and said, 'I wouldn't do it.' I just wonder if it is an abstract question that is being asked in the first place.

Senator PRATT: Thank you, Ms Goldner. I have a question for you, Ms Marlowe. We heard some evidence this morning—I am not sure if you were here—regarding the case in Tasmania where the Catholic archbishop was distributing anti same-sex marriage material. Equal Opportunity Tasmania outlined that the case against the distribution of that material pertained not to the arguments about marriage but more specifically to the statements made in that material regarding children. I do not know the details. I wanted to ask you if you know anything specifically about that case and to raise with you the way in which the exemption provisions within this legislation might be used specifically to stigmatise the children of LGBTI people and their relationship with their parents.

Ms Marlowe : The book that you are referring to is Don't mess with marriage. I have read it myself, as well, and it does refer quite heavily to the idea that children born to LGBTI parents, or people who are not married and not heterosexual, are children born at loss and are part of a motherless and a fatherless generation. It also asserts that all children have the right to know and be raised by their biological parents in a married situation. It distinctly links marriage and family, and there is nothing about that that they are equivocating on at all.

I will just give you one anecdote of attending the funeral of the mother of a friend of mine. It was in the western suburbs of Melbourne. My friend was in a same-sex relationship but her partner died just after the laws changed in Victoria. They had luckily changed the birth certificates of the children so that she is their legal mother, even though their other mother had died. The children were also brought up with their grandmother. The grandmother died after having been sick for a long time. During the funeral, everyone talked about the relationships of the children with the mother and grandmother and it was lovely. But as we left this quite sad funeral, out in the foyer on display were 'Don't Mess With Marriage' flyers everywhere. They lived in a semirural regional area of western Victoria. We actually turned them around because it was really quite detrimental to the family to have those things on public display at such a very difficult time for them. That is one anecdote of exactly the kind of thing that people have to consider and think about when they are out in public, like Sally was saying as well.

CHAIR: Do you have any questions, Senator Smith?

Senator SMITH: No questions from me, Chair.

Senator KITCHING: Firstly, thank you very much for coming today. In relation to the civil celebrants, I take your point and there is actually a submission from the peak body for civil celebrants. I think we will be hearing from them later on today. They are conducting about 75 per cent of civil marriages in Australia currently. They would estimate that about three per cent of civil celebrants would resign if there was not an exemption for them. Given that one of our terms of reference is to think of ways to have this legislation passed, if civil celebrants had to declare at some point what their intentions would be around same-sex marriage, do you think that that would address some of the concerns? I think in your submission, Ms Marlowe, you say it could be a waste of time for same-sex couples. It is in one of the submissions. Do you think that starts to address that?

Ms Marlowe : With respect, Senator, I do not think civil celebrants should have the ability to refuse. I do not think I want to comment on any possible workaround for how that would work because I flatly refuse that they should have the right to refuse at that point as civil celebrants.

CHAIR: Are there any further questions? You were talking before about the 'Don't Mess With Marriage' booklet. I noticed you all said you are not lawyers. A lot of what we are dealing with here is the seven international covenants around human rights. What the booklet was talking about there was drawn directly from article 23 in terms of the concepts of marriage and rights to form a family et cetera. Some of that terminology appears because it is actually in the international covenants that Australia is dealing with.

Ms Marlowe : Sure, that is fine. We are living in Australia where 11 per cent of gay men and 33 per cent of lesbian couples—and that is not a comment necessarily on trans or gender diverse parents or carers either—actually have children. In the 2011 Census, there were over 6½ thousand children registered as living with same-sex families, and we know people that under represent. Who knows what will happen with the 2016 Census? So we know that these families exist and that nearly every state and territory allows same-sex adoption, access to ART and other forms of family formation. It is a fallacy to say that they those families do not exist and do not deserve, as parents and carers who are caring for their children, the ability to commit their love legally in front of their children and families like every other opposite-sex couple is afforded the opportunity to do. I say that is fine; they can say 'Don't Mess With Marriage'. They can put out their flyers just like I am able to put out our flyers saying that we wish to be able to celebrate the love and commitment me and my partner have for each other in front of our children and family members—in my big Catholic family, I should say. They can say what they like, but the reality of it is that these children exist and our families exist. You cannot make them go away and we should be, as adult parents and carers, afforded that right to marriage equality.

CHAIR: With that, I will intervene. It being 12.30, this part of the hearing will draw to a close. If you have been asked to provide anything on notice, could I ask you that you get that back to the committee within the week. I thank you for appearing here today and for your submissions. Mr Park?

Mr Park : Are we just able to just ask a question for the committee to take back? In our submission, we made a note around there being no definition of what a religious body or organisation was. That could be expanded into numerous private actors, which I think we touched on briefly. It would be good to have an understanding about what that would be, so any broad nature would be clarified.

Senator PRATT: Thank you for prompting us to ask that question.

CHAIR: We can certainly put that in a report to the government, who drafts the bills. We do not determine that, but we can ask them to make more clarification. With that, we will suspend for one hour for a lunch break.

Proceedings suspended from 12 : 30 to 13 : 41