Comment: What will same-sex marriage actually mean?


While the symbolism of same-sex marriage is important, too great a focus on this goal risks ignoring more pressing forms of LGTBI discrimination, writes Simon Copland.

With the ACT about to pass Australia’s first ever same-sex marriage bill, a natural question to ask is, what will it actually mean?

If you were to look at the debate in places like the United States you would hear horrible examples of people who have had visiting rights in hospitals denied to them, had missed out on essential tax or had been unable to migrate because they couldn’t get a marriage certificate. The denial of marriage equals the denial of a range of basic rights - rights that are completely inaccessible without the certificate.

In Australia however, one uncomfortable fact has been ignored; none of these situations are relevant here. The passage of same-sex marriage legislation will lead to virtually no improvements in rights for same-sex couples. The whole campaign is a symbolic one that has no real material affects. 

Relationships in Australia are regulated by both the state and federal Government (although a little out-of-date, this link provides a great background on the issue of same-sex relationship recognition). Whilst the laws of marriage and divorce are federal (although the ACT legislation challenges that) most of the laws affecting relationships, issues such as adoption, property disputes, domestic violence protection orders, and so forth, are state laws. In both state and federal legislation, changes in legislation have gradually meant that same-sex couples have exactly the same rights as their heterosexual counterparts. 

The origin of this comes with the changing nature of relationships in the latter half of the 20th Century. Connected with the rise of feminism in the 1960s, the latter half of the 20th Century saw more people decide not to get married. And this created problems. Legal rights were only available to couples who got married, meaning those who didn’t sign the dotted line were left in a legal hole.

And so with a change in societal attitudes came a change in legislation. In 1984, the NSW Government introduced the De Facto Relationships Act - the first law in Australia to establish a property division scheme for couples who were living together but who weren’t married. All Australian states eventually followed suit, creating the ‘de-facto’ relationship scheme, which provided couples the same rights even if they didn’t have a marriage certificate. 

However, this still didn’t extend to same-sex couples. That was until 15 years later, when in 1999 NSW and Queensland both introduced legislation to extend particular rights of de facto couples to same-sex couples. In Queensland legislation recognised same-sex ‘spouses’ in cases of property divisions, domestic violence protection orders and parental and employment leave. The NSW Government changed 20 pieces of legislation to give same-sex de facto couples the same legal footing as their heterosexual counterparts. This created a domino affect and by 2006 all states and territories had legislation of some form providing same-sex couples the same rights at their heterosexual counterparts.

Despite all of this however, same-sex couples still faced a range of federal discrimination. The Commonwealth Government controls a whole range of issues related to relationship regulation, including immigration, taxation, social security and health care benefits through Medicare. In all of these areas, the Federal Government continued to discriminate against same-sex couples. 

That was until the election of the Rudd Labor Government. In what has probably been one of the most undervalued piece of legislation within the gay and lesbian community, in 2008 the Rudd Labor Government passed the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act. The Act, which followed reforms to superannuation and family law system, removed a total of 58 pieces of federal discrimination. This included removing discrimination in areas as broad as agriculture, fisheries and forestry and defence, to health and aging and finance and taxation. The act removed all material discrimination against same-sex couples. De facto couples now had all the same rights as their married counterparts. 

And this is the uncomfortable reality. When same-sex marriage legislation passes in the ACT it will lead to virtually no changes in the actual rights and responsibilities of same-sex couples. Around the country the only difference marriage will bring will be that couples would be able to formally register their relationship (which makes it easier to prove). But even that doesn’t count in the ACT, who like states such as Victoria, already have a registry system. The difference will literally be in name only. 

In other words, a major campaign, with huge financing and human resources has gone into an issue that is nothing more than a symbol. And whilst the symbol of equality under the law is important, you have to question the energy placed into it.

Whilst we have focused so heavily on same-sex marriage, to the point where many see it as the ‘final hurdle’ for gay and lesbian people, we have ignored extremely pressing issues. Young queer people continue to have high rates of suicide, trans* people face a huge range of legal and societal discrimination, religious schools and organisations can still discriminate at will and intersex people are being forced into unnecessary operations that some have called genital mutilation. 

Our energy has gone in to a conservative cultural institution that is nothing more than a symbol while queer people of all stripes suffer under a range of discrimination that hardly gets any airtime at all. It’s time we give up on the symbol and start to focus on the real discrimination people face - the discrimination that is seriously hurting members of our community.

Simon Copland is a freelance writer and climate campaigner. He is a regular columnist for the Sydney Star Observer and blogs at The Moonbat.


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