By Kath Gelber
Legal reform and anti-discrimination measures have been the focus of much debate and activity in the lesbian and gay communities over recent years.
Legal recognition of lesbian and gay relationships has been a particular focus of the Lesbian and Gay Legal Rights Service, a project of the Gay and Lesbian Rights Lobby, since February 1992.
The first version of its report, The Bride Wore Pink: Legal Recognition of Our Relationships, A Discussion Paper, was produced one year later. A second version was produced in February 1994.
The report raises important issues which centre on the desire to achieve some form of legal status for lesbian and gay couples in order to maximise benefits and eliminate discrimination.
The report canvasses the pros and cons of a variety of legal reforms and lists the GLRL's recommendations. It has been revised in the light of community consultation, but does not claim to reflect community consensus on the issues involved.
Recommendations
The primary recommendations are to amend the De Facto Relationships Act (1984) to include lesbian and gay relationships, and to amend other specific legislation which confers rights or benefits on the basis of a relationship with someone else to include relationships with a "significant person". This significant person may be anyone in a relationship which involves significant emotional interdependency. It covers sexual relationships, long-term friendships, flatmates or any chosen family, including a child.
The reasons for legal recognition are clear and well motivated. Current areas of discrimination against lesbian and gay couples include:
- exclusion from legislation that protects against discrimination on the basis of "marital status";
- a lack of rights on the death of the partner;
- lack of access to the Family Law Act (1975) on the ending of a relationship and lack of access to Family Court counselling services;
- inability to adopt;
- lack of legally recognised relationships for co-parents;
- inability to nominate a partner as beneficiary in superannuation or other financial entitlements.
Clearly, the level of discrimination is enormous. However, a focus on legislative reform also has to take into account the context in which current legislation has developed.
Overwhelming, the law as it currently stands developed in the context of property rights, and the paternity rights that enable the passing on of that property. Although women have become able to own property and to claim rights based on their shared contribution to the joint household, the fundamental reason for combining a couple's income remains allowing the system to regard one person as "dependent" on another and therefore cared for at little or no cost to the state. This remains the fundamental reasoning behind social security legislation which pays a couple less than the rate for two single people.
For lesbian and gay couples to seek recognition of relationships within the legal structure means seeking reforms within a system that is simply not geared to meet the needs of individuals.
Of course, some individuals and some couples do benefit from some legislation. It is certainly true, for example, that some of the legislation introduced in response to the demands of the women's movement has made many women's lives easier.
Options
The options canvassed by the Bride Wore Pink report include various forms of recognition, some optional and some not, of lesbian and gay relationships. These include de facto relationships, registered partnerships, marriage and significant personal relationships.
Options other than extension of the De Facto Relationships Act are rejected for a variety of reasons. The most important appear to be lack of political feasibility, and the potential for the legislative change to have an unwanted or unanticipated impact.
The option which appears to give the greatest scope for choice is the implementation of "registered partnership" laws such as exist in varying forms in the USA and Denmark. This allows couples to "register" as being in a partnership and therefore gives each couple greater personal choice as to whether or not they wish to enter into any legal recognition.
The broadening of de facto legislation might not allow this degree of choice. It could also have serious consequences within the social welfare system. Already, people of the opposite sex who share houses and are in receipt of social security benefits suffer invasive inquiry by the Department of Social Security to ascertain their relationship. To extend the power of DSS to look into all household relationships seems unwise.
The report recognises these potential problems in extending de facto legislation. It states, however, that "this cannot remain the only reason for rejecting this option" and adds, "We should challenge the social security system and its assumptions about economic dependency".
Included is a recommendation that the lesbian and gay community "join together with other groups to lobby for the removal of the cohabitation rule in the Social Security Act 1991". The report advocates payment of all pensions and benefits at a single rate.
However, these very legitimate and important concerns are not included in the primary emphasis of the report.
Recent developments
There are reports that federal cabinet will soon decide on granting relocation and superannuation entitlements to the partners of gay and lesbian Commonwealth public service employees. Currently these entitlements are at the discretion of departmental heads. The latest proposal comes after more than two years' delay following the filing of several complaints with the Human Rights Commission by gay and lesbian public servants.
In the ACT, the Legislative Assembly in May passed legislation giving property rights to people in domestic relationships other than heterosexual marriage or de facto marriage. Designed to recognise the property rights of carers involved in financial commitment and the provision of support for the ill and elderly, the new legislation allows any person who can show they contributed to the property, the other person or their child for a minimum of two years, to apply to a court for property rights. The law is not specific to gay and lesbian couples.
The issues raised in the report warrant further thought and discussion. The Gay and Lesbian Rights Lobby welcomes comments, criticisms and ideas in relation to the paper.