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Thursday, 12 November 2015
Page: 8414


Senator RICE (Victoria) (11:42): Like so many Australians, I find the ongoing refusal of this government to allow an immediate parliamentary vote on marriage equality utterly intolerable. I have listened to the arguments from those on the government benches who say that they do not discriminate against lesbian, gay or transgender people; they just do not believe that marriage should be changed to allow same-sex attracted people to be married. I am sorry: that is just not the case. If you do not support lesbian, gay or transgender people being able to marry, you are discriminating against them. You are not giving them the rights that are afforded to the rest of Australians. It is state sanctioned discrimination at its most basic. The arguments that marriage is sacred, immutable and unchangeable is clearly not true. It is codswallop because marriage has changed over the years; marriage has changed over the centuries. In previous times, the same arguments that are being used against same-sex marriage were used against interracial marriage—that, no, it is just not right for black people to marry white people. The same arguments were used against marriages of people of different religion—that, no, marriage should not occur between somebody who is Christian and somebody who is Muslim. In fact, the same arguments have been used for marriage between Catholics and Protestants. We got through all of that. We know that if people love each other they should be allowed to marry. Marriage is such an important part of our social structure, and to allow all Australians to be able to participate gives equality to all Australians.

It is intolerable that right now, in almost all jurisdictions across Australia, if you are a trans or gender-diverse person who is currently in a married, opposite-sex relationship and if you as a trans or gender-diverse person want to change your birth certificate to correctly identify your new gender, you must divorce your husband or wife to do so. Trans forced divorce is such a strong example of how outdated and discriminatory our current marriage laws are.

I am married to my wife, Penny. We married almost 30 years ago when she was Peter. She transitioned to her lived gender—her real gender as a woman—some 12 years ago, I think. Penny has chosen to not change her gender on her birth certificate. Her birth certificate still says she is male—when she knows, we know and the world now knows she is absolutely female. But she cannot change her birth certificate because, to change her birth certificate, under our current legislation we would have to divorce. So her birth certificate sits in a bottom drawer. Fortunately, she is able to get a passport in her real gender. Her passport says that she is female, so her birth certificate is totally irrelevant to her as an identity document. That is not how it should be. It is such an absurdity and it shows the discriminatory nature of our current laws. It shows the discrimination against transgendered people as well as against lesbian and gay people.

It is intolerable that today, in 2015, gender diverse, trans and intersex people who are in a same-sex relationship are not able to marry the person they love, the person they cherish and the person they want to create a solemn and binding relationship with. It is particularly intolerable that young trans and gender diverse people in same-sex relationships are constantly given the message, loud and clear, that their government refuses to allow them the respect and dignity of allowing them to marry and wants to take the issue of their personal love for another person to a national vote of some 16 million people. It is absolutely intolerable that every day around Australia people's lives, their families and their relationships are being torn apart by this brutal, heartless refusal of the Turnbull government to allow a parliamentary vote on marriage equality.

Sally Goldner, the Executive Director of Transgender Victoria, who was recently crowned the Victorian LGBTIQ Person of the Year in recognition of her advocacy, writes:

Article 16(2) of the UN Declaration of Human Rights states that "Marriage shall be entered into only with the free and full (my emphasis) consent of the intending spouses." Would it be fair to imply from that article, marriage should equally be ended with the full consent too?

Sally, that is a very good question. TheResilient individuals: sexual orientation gender identity & intersex rights national consultation report 2015of the Australia Human Rights Commission was released this year. The report states:

To ensure all Australians are treated equally and fairly by the law and government, the following law reform should occur promptly at a state and territory level …

Notably:

In the interests of preserving resilient families and marriages, all states and territories should remove the requirement that married couples get divorced in order for one partner that is transitioning their gender to have it acknowledged on official documentation.

The Australian Human Rights Commission report goes on to state that the impact of the definition of marriage in the Marriage Act 1961, as it presently stands, means:

3. An established married couple, one of whom is a trans person, is legally required to divorce in order for the trans person to amend their birth certificate.

4. A couple cannot access civil marriage if one party is legally recognised as a sex other than male or female.

5. Queensland case law suggests that irrespective of the sex marker on a birth certificate, some intersex people may not come within the definition of a man or a woman for the purposes of the Marriage Act 1961 (Cth), and therefore are denied access to civil marriage.

This is discrimination at its most basic. What more evidence does this government need? In New South Wales, in Tasmania, in Victoria and in South Australia the issue of trans forced divorce has been raised in state parliamentary reference groups, in state based reviews and by members of parliament. Hardworking volunteer advocacy groups, such as Transgender Victoria and other trans and gender diverse rights lobbies, are educating and raising awareness of these ridiculous and damaging legislative and regulatory inconsistencies.

The Australian Greens and I support the right of all trans, gender diverse, gender queer and intersex people to marry the person they love. We are in a position in this parliament to be able to legislate—to use our powers here as legislators to remove this discrimination and allow all Australians to marry the person they love. The Greens have proudly stood up for the rights of the lesbian, gay, bisexual, transgender, intersex and queer communities for many, many years—well before marriage equality was even a thing. In parliaments all over the country, it has been Greens who have been advocating and working hard for the rights of LGBTIQ Australians for years and years. We are so close now. At the moment in Australia, the opinion polls show that 70 per cent of Australians want to see same-sex marriage. They want all Australians to be able to marry the person they love, and they cannot understand why we do not just get on with it. Why don't we just do it and allow these marriages to occur? They are such happy occasions. We will continue to fight to remove all forms of discrimination faced by our communities. And we will continue to call for a parliamentary vote as soon as possible—by the end of the year would be terrific—to bring on marriage equality. We can vote now to introduce marriage equality in Australia. Love does not discriminate, and neither should the law.

Debate adjourned.