Protecting and promoting human rights remains a political, legal and cultural challenge for all of us. While no single reform can claim to be the prefect panacea, if I were the Commonwealth Attorney General, my primary focus would be negotiating social justice policy mechanisms that recognise the dignity and diversity in our communities. Focusing on lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) communities in particular, this task would begin with the inclusion of disparate identities in the development of comprehensive anti-discrimination protection and family recognition.
My departure point for reform is articles 2 and 7 of the Universal Declaration of Human Rights, which guarantees freedom from discrimination and equality before the law. In Australia, the absence of comprehensive federal anti-discrimination law in relation to sexual orientation, gender identity or intersex must be immediately rectified.
In drafting anti-discrimination legislation, as legal academic Kimberle Crenshaw notes, identities and experiences must not be confined in discrete or singular terms. We only need to reflect on a case before the Australian Human Rights Commission on the difficulties gender diverse elders face in accessing aged care to see this:
An older transgender woman with dementia, who had lived most of her life as a woman but had never had sex reassignment surgery, was forced by staff of the religious aged care facility where she was being cared for, to live as a man.
Unfortunately, this kind of insensitivity is not unique. It is underscored by a history of invisibility, isolation and ignorance in relation to intersections of her dementia (mental health), a failure to acknowledge her identification as a woman (gender identity), and her inability to access appropriate residential aged care (age).
The Productivity Commission’s report Caring for older Australians (2011) elaborates that sexual and gender minorities often feel coerced into remaining silent about their relationship status or gender identity for fear of harassment or vilification in residential aged care.
In order to extend the reach of anti-discrimination law outside public authorities the broad reliance on exemptions and exceptions also needs to be narrowed.
Due to the complex nature of modern government, social services historically provided for by government agencies are often contracted to non-government organisations, which are often religious. Faith based exemptions, such as section 56 of the Anti-Discrimination Act 1977 (NSW), automatically give religious organisations discretion to deny services to sexual and gender minorities including in education, foster care and aged care services. Aside from limiting social services to sex, sexuality and gender diverse people, unfettered discretion produces uncertainty in the law.
Freedom of religion is a democratic right for citizens provided for by article 18 of the Universal Declaration. Exemptions, though, must be understood through the lens of public administration in a similar way to the Human Rights Act 1998 in the UK. That is, it is necessary to distinguish between the public and religious character of the service being provided. Foster care, for example, is designed to the benefit children, who are wards of the state, not the church. Organisations refusing to accept applications from same-sex couples to foster without assessing the merits of their applications are placing their interests above those of displaced children in need of loving parents.
Exemptions that are directly incompatible with the remedial purpose of anti-discrimination law must be removed if we are to address the history of inequality, invisibility and exclusion that shapes the experiences of many sexual and gender minorities.
Proscriptions on discrimination alone are insufficient. In addition to legislative proposals for marriage equality, I would urge the Federal Government to implement positive measures to recognise the diverse relationships and families in LGBTIQ communities.
Article 26 of the Universal Declaration guarantees the right to family life. In recognising the right of same-sex couples to marry, Justice Sachs identified in the South African case of Fourie (2005) that international law does not prescribe a static meaning of family. Indeed the term is elastic to enable recognition of the plurality of family forms.
Australia must embrace family diversity by legally recognising same-sex families. In 2006, the Australian Bureau of Statistics identified that at least 20 percent of lesbian couples and 10 percent of gay couples were living with children. Yet, legal security remains elusive for families where only one parent is able to be recognised. When it comes to custody, contact, inheritance and child support obligations, children forgo legal recognition where laws fail to adequately recognise all their parents.
Recently, Doctors for the Family, a group purporting to represent medical professionals, achieved notoriety for claiming that same-sex marriage poses health risks to children. Rather than highlighting an empirical basis to their claims, children figure in a matrimonial heterosexual imaginary that privileges some abstract “essentiality” or “complementarity” of gendered parenting.
Emerging social scientific and psychological research over the past decade, however, indicates such a narrative is illusory. In 2010 the American Academy of Pediatrics released a comprehensive longitudinal study on lesbian parenting mapping the lives of 78 young people from prebuscence to adolescence. Rather than evince greater risk behaviours, the study noted that compared to children from heterosexual families those from the survey sample did better in education and displayed significantly lower social problems, such as breaking rules or displaying aggressive behaviour.
In more general terms, the Australian Psychological Society concludes that empirical research indicates that the merits of families are not reducible to their particular structure or form, such as the gender or sexual orientation of a parent.
Continuing in the vein of cooperative federalism, in order to improve the visibility of diverse family structures, I would expand the existing National Human Rights Action Plan to ask the states and territories to broaden parentage recognition in the areas of adoption, foster care, surrogacy and assisted reproductive technology to ensure protection for all families.
In 2011 Australia joined in the historic chorus of the UN Human Rights Council condemning violence and discrimination against people on the basis of their sexual orientation or gender identity.
While any government can make broad rhetorical claims to improving human rights culture, these political gestures are of little significance unless comprehensive, inclusive and appropriately-legislated protection of rights exists. By doing so, we can seek to protect the complex identities, intersections and intimacies in LGBTIQ communities across Australia.
Senthorun Raj is the Senior Policy Advisor at the NSW Gay and Lesbian Rights Lobby.