The State of Affairs

How far have we come? Gay & Lesbian Equality (WA) provides an overview of the current rights of sexuality and gender citizens in WA, compared with the rest of the world.

Find out about the current rights in regards to relationships, how this affects people of diverse sex & gender, and an overview of the 85 Federal reforms passed in 2008 / 2009 to improve the rights and entitlements of same-sex attracted people under Federal Law.

The Howard Government’s 2004 amendment to the 1961 Marriage Act stipulated that marriage was now to be defined as 'existing solely between a man and a woman to the exclusion of all others’ – a change which effectively banned same-sex marriage.

Because marriage is a Federal issue, individual states and territories do not have the power to implement marriage themselves, nor introduce any legislation that according to the law ‘mimics marriage’.  However, they do have the ability to create relationship registers and civil partnership schemes for same-sex de facto couples. 

At present, Tasmania, the ACT, Victoria and recently NSW have all introduced such schemes. These laws differ according to each jurisdiction and are not the same as marriage, given that they are only recognised within their own state boundaries and often are only available to citizens of that particular area. However, they are by no means redundant or tokenistic, as they are means by which same-sex de-facto couples are able to have their relationships legally recognised. WA does not yet have a formal recognition scheme, however the state law changes in 2002 same-sex couples are afforded the same rights as heterosexual de-facto couples.

The process of implementing these schemes has not been without controversy or difficulty. In 2006 a proposal to introduce civil unions in the ACT was blocked by the Howard Government. When the legislation was reintroduced in 2008 Rudd did the same - despite pre-election promises not to intervene in the actions of the States and Territories on the matter of same-sex unions. The 'problem area' that both PM's objected to was a fairly small section of the bill that would have allowed for same-sex couples to have public and formally recognised ceremonies presided over by an official celebrant (a priest, justice of the peace, rabbi etc). Apparently, this arrangement was too 'marriage-like' and therefore contravened the terms of the 2004 ban. 

Fortunately, thanks to some rather clever wheeling and dealing, in late 2009 the legislation in the ACT was allowed to pass. This followed the introduction of laws in Tasmania that would permit same-sex couples to have their unions presided over by an official notary, passed earlier in that year. Unfortunately, in the ACT the new civil partnerships would only be accessible to same-sex couples. According to the ACT Government, restricting heterosexual couples from having their relationships recognised under the new scheme was a means of reassuring the Commonwealth Government that same-sex civil partnerships did not constitute a marriage. If this statement confuses you, don’t worry – it doesn’t make any sense to us either!

Marriage vs. Sex & Gender Diversity

It is also worth mentioning that given that most states and territories have fairly restrictive laws regarding the recognition of gender-diverse people. Most require an individual to undergo sex reaffirmation surgery in order to change the gender on their birth certificate, and thus be fully recognised as their identified gender. The marriage ban creates a situation whereby married trans* people must divorce their partner in order to have their appropriate gender legally recognised – as granting legal recognition of a married person’s transition from one physical sex to another will inadvertently create a same-sex marriage.

In 2008 the newly elected Rudd Government introduced changes to 85 Federal laws that would remove discrimination against same-sex couples and their families. These changes were fairly comprehensive, and cover an extremely broad spectrum of laws. Changes include:

• Same-sex partners of Defence Force personnel and veterans, Public Servants, policy makers and other public servants are entitled to equal compensation, retirement benefits, superannuation and accommodation provisions.
• In the workplace, the same-sex partners of employees are now entitled to equal access to superannuation, leave (including parental leave) compensation and other partner-based entitlements.
• Changes to Immigration laws now allow for same-sex de-facto partners and their children to apply for the same types of immigration visas as heterosexual couples, allowing them to be recognised as family members, rather than having to apply for a costly and complicated ‘interdependent’ visa.
• If you and your partner are living together, you are now able to declare your relationship. This means that you and your partner’s assets and wages will be considered together to determine your social security payments.
• Same-sex couples and families are now also equally recognised for the purposes of superannuation and taxation.
• Same-sex partners of children’s biological parents can now be legally considered parents (unfortunately, these laws do not affect state and territory legislation which concern matters such as adoption, surrogacy and assisted reproduction, child support and so on..).
• Same-sex couples and their children are now also eligible for coverage as a family group by the Extended Medicare Safety Net and the Pharmaceutical Benefits Scheme
• A same-sex partner’s assets and income will also be considered when one (or both) partners applies for a disability or an aged care pension.

Despite these reforms, because of a general lack of equal relationship recognition schemes, no comprehensive anti-discrimination, and the difficulties faced by gender-diverse citizens, Australia is lagging behind much of the world.

In Britain, same-sex marriage is not legal, however same-sex couples are able to have their relationships recognised via civil partnerships, which afford couples the same rights and responsibilities as marriage. Same-sex marriages performed overseas in countries such as Canada (where same-sex marriage is legal) are recognised in the UK as civil partnerships.

The United States are also in a similar position to Australia. Same-sex partnerships and marriage are the jurisdiction of individual states and territories, with Iowa, Washington D.C, Massachusetts, Vermont, Connecticut and New Hampshire now allowing same-sex marriage. However, the Defence of Marriage Act was introduced to ban same-sex marriage on a Federal level. Unlike Australia, this still allows individual states to enact laws that allow or recognize same-sex unions. In Australia marriage is an exclusively Federal power, thus only the Commonwealth Government can reverse the 2004 ban on same-sex marriage.