The same-sex marriage bill passed in the Australian Capital Territory on October 22 was the most important victory of the equal marriage rights campaign so far. It is the first time queer people have had the right to marry in Australia and follows a seven-year campaign in the ACT, and a nine-year struggle nationwide.
Prime Minister Tony Abbott is likely to do everything in his power to overturn the legislation. The federal government will be taking it to the High Court next month.
Still, the new law has led to celebration — and also discussion and debate. Before it passed, the bill was amended by the legislative assembly to limit marriage rights to same-sex couples.
The original version of the bill covered everyone not covered by the federal marriage act. Limiting marriages to same-sex couples is an attempt to create a new legal category of “same-sex marriage”, distinct from “marriage”.
Only the federal government can legislate on “marriage”, so creating a new legal category that the states and territories can legislate on is an attempt to thwart the coming High Court challenge. Unfortunately, the amendment also means people with a gender identity on the continuum between male and female will not be able to marry according to their true gender, and neither will transgender people who have not yet won legal recognition of their gender.
Over the past seven years the ACT legislative assembly has repeatedly challenged the federal government. It has passed several bills for civil unions, on each occasion watering them down to try to appease the federal government.
In 2006, this meant the bill applied only to ACT residents. In 2007, the bill allowed a registration scheme. In 2010, the ceremony was decoupled from the civil union.
John Howard’s government crushed each attempt, regardless of amendments. In 2006, it was simply overturned. In 2007, the assembly was told the bill would be overturned unless it was just a registration scheme.
The Rudd government had a different approach – to try to appease the Christian right and the queer community at the same time. Under the tacit threat of a federal government overturn, they pressured the assembly to alter the bill so much that it had the outside appearance of civil unions, but without the core ceremony.
Each amendment to any bill divides the lesbian, gay, bisexual, transgender and intersex (LGBTI) community into roughly three camps. Some agree an amendment is necessary to fend off the federal government. Some think it is a cowardly concession. Probably the biggest camp don’t really care about the amendment, but are happy to see the law pass.
The ACT bill is the boldest yet; its amendment is also the most controversial. It is a bold attempt at marriage equality, but it is unequal because it excludes members of the LGBTI community who are among its most marginalised.
But there is a range of opinion among the trans and intersex community. Robyn Grafkin was an activist with the Civil Unions Defence Coalition, and later with A Gender Agenda. She told Green Left Weekly: “I don’t think the amendment was necessary. I don’t think it will change whether it will be allowed to stand.”
Former Equal Love Canberra member Daria Sigma was more positive. “This is the biggest step we've had in a long time. Sure, there are many more to take, but I'm calling this, right here, right now, a win.”
Equal Love Canberra applauded the bill, but opposed the amendment. The day after it passed, it said: “While the ACT same-sex marriage bill is not ideal, it is still a huge victory for us and an important step forward in the campaign for equal marriage rights for all Australians.”
The strength of this campaign is not in the assembly’s ability to appease the federal government or the High Court. Its strength is the persistent, courageous and inspiring people who keep protesting year after year to defend the assembly’s vote. The assembly inspires them when it puts up a bold challenge to the federal government, but divides them when it waters down its legislation.
But the amendments to the legislation are not the end of the world. For each amendment, the movement splits into three camps, but it stays united in defence of marriage equality bills against the federal government and the ultimate goal of full federal marriage equality.