Beyond the survey, building the struggle for queer rights

Lisbeth Latham

While the marriage equality campaign is currently focused on maximising a Yes response in the national survey, supporters of marriage equality and of LGBTI rights more generally need to look beyond the horizon of the survey itself.

This is because a majority Yes in the survey will not definitively resolve the question of marriage equality and because there are many other challenges facing the LGBTI community, particularly around legal rights.

The national survey closes on November 7, with results due to be announced by the Australian Bureau of Statistics on November 15. The ABS has said the number of returns in the survey is higher than anticipated. At the start of the campaign there had been a fear of complacency, but the higher than expected returns, along with polls continuing to show high levels of support for marriage equality, are both positive signs for a strong Yes response.

However, a Yes response, no matter how strong, does not guarantee that a marriage equality bill will be introduced to parliament, nor that there will sufficient support in parliament for it to pass.
Importantly, it is clear that the right, aware that the survey has not allowed them to defeat the push for marriage equality, is now seeking ways to undermine the language of any enabling legislation. This push would enshrine "religious freedom" in any marriage equality bill, which would dramatically expand in what circumstances "religious" individuals could legally discriminate against people they believe are in a same sex relationship.

The campaign must build pressure for a bill to be put and ensure it contains no expansion in religious exemptions to anti-discrimination acts.

Moving beyond the fight for marriage equality, there are several important legal rights and protections that need to be won to ensure violence and discrimination against members of the LGBTI community no longer have legal sanction in Australia. These include:

• Ending of the gay/trans panic defence, which remains on the books in South Australia;
• Prohibiting unnecessary surgical or other medical treatment of intersex children, including forced coercive interventions, until they reach an age at which they can provide their free, prior and informed consent;
• Establishing a national standard for gender recognition that has no requirement beyond an affirmed decision of the individual. At present only the ACT and SA do not require trans individuals to undergo surgery prior to achieving gender recognition, but they still require a statement that the individual has had clinical treatment by an Australian psychologist or psychiatrist. This stigmatises and pathologises trans experiences, although not as much as in other states;
• Rolling back the religious exemptions to the Anti-Discrimination laws in all Australian jurisdictions;
• Ensuring that oppression on the grounds of sexuality or gender identity are grounds for asylum and that this is not based on individuals proving that they are sufficiently queer;
• Enshrining the right for trans and non-binary individuals to use public facilities that correspond with their affirmed gender identity;
• Enabling individuals under the age of 18 to affirm their gender at school and have this affirmation respected and protected, without requiring formal gender recognition but giving them the right to change their gender marker if they choose;
• Ending the requirement for transgender minors to go to the Family Court to access hormones. Australia is the only jurisdiction with such a requirement, which creates a significant and unnecessary barrier to transgender individuals affirming their gender in the way they wish. Medical support with informed consent of the minor should be sufficient, as it is with accessing contraceptive pills.

Any victory for marriage equality will see the right push back on other issues concerning the rights of the LGBTI community. This push back must be firmly resisted.

We must demand the reinstatement of funding for Safe Schools and push for its expansion to more schools. Equally importantly, we should defend the rights of gender non-conforming children, including the ending of gender-based uniform restrictions — restricting dresses to "girls" and pants/shorts to "boys" places bizarre restrictions on how children and adolescents are able to choose their school clothes.

The campaign to build the strongest possible support for Yes in the survey is important work.

However, if the horizons of the LGBTI communities and their supporters do not reach beyond this objective then we risk losing an opportunity to make significant strides in the rights and abilities of members of the community to live their authentic lives.

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[This article was originally published in Green Left Weekly #1157]