Australia is progressing towards LGBTIQA+ equality. In 2017 we voted for it. But the backlash to that progress poses a serious threat. The question before us is how do we continue to make progress despite the backlash?
From Bigots Island to the Rainbow Isle
Thirty years ago, my article for the first edition of the Human Rights Defender explained a ground-breaking appeal I was involved in to the UN Human Rights Committee against Tasmania’s then laws criminalising gay intimacy with up to 21 years in gaol.
That appeal was ultimately successful. It gave us a platform to seek federal legislation and a High Court ruling against the offending state law, it gave the Commonwealth Parliament a mandate to prohibit anti-LGBTIQA+ discrimination, and it set a precedent for decriminalisation in other countries from Belize to India.
The Tasmanian UN decision has played a critical role in LGBTIQA+ emancipation. But it would be wrong to attribute change in Tasmania and elsewhere solely to that decision. Its ramifications have been greatest where there was already a community-based campaign in place.
In Tasmania this campaign involved everyday LGBTIQA+ people reaching out to potential allies and telling their personal stories about why decriminalisation mattered. It was because of this larger campaign of community engagement that when the dam of criminalisation finally broke, with repeal of the offending laws on May 1st 1997, some of the world’s most progressive LGBTIQA+ discrimination, hate speech, relationship and gender recognition laws flowed out.
Attitudes have also turned around: Tasmania went from below-national-average support for decriminalisation in the early 1990s to a marriage equality ‘Yes’ vote above the national average in the 2017 postal survey. In the last 30 years Tasmania has gone from worst to best on LGBTIQ+ equality, from being labelled “Bigots Island” by the UK press after the UN decision to being the Rainbow Isle today.1
Marriage equality was a turning point
By the mid 2000s most states had enacted basic discrimination protections and legally recognised de facto same-sex couples and their families, so the attention of some LGBTIQA+ advocates turned to marriage equality.
The 2004 federal ban on recognising same-sex marriages revealed low levels of public and parliamentary support for marriage equality. But slowly that changed thanks to a grassroots campaign similar to the one in Tasmania a decade before.
By 2015, when the then Federal Government first proposed a plebiscite as a precondition for reform, there was already majority support in Parliament and the community. Indeed, the plebiscite was a last-ditch effort to derail that growing support. It failed, of course. In 2017 the nation overwhelmingly voted ‘Yes’ as did Federal Parliament.
Marriage equality was a turning point for LGBTIQA+ Australians, and for the nation more broadly. But we should be careful when assessing its significance and learning its lessons.
It was not the end of the LGBTIQA+ equality story, as some people still assume. As I’ll outline, there are still many inequities experienced by LGBTIQA+ Australians. But neither was marriage equality just about allowing some LGBTIQA+ people to walk down the aisle and throw a big party afterwards.
Marriage equality and the campaign leading up to it demonstrably reduced prejudice and discrimination against same-sex couples and their families, not just in the law but across society. It was the culmination of decades of activism to recognise same-sex relationships and parenting, and prior to that, to decriminalise male same-sex relationships.
Lessons from the marriage campaign
As for what we can learn from marriage equality, we must turn to aspects of the campaign that are too often overlooked in the mythology that has grown up around the issue.
First, it was won not by the postal survey, but the decade and a half of unprecedented community activism prior to 2017. This activism involved relentless lobbying and advocacy. It involved innovative approaches like state same-sex marriage laws. It involved seeding local electorate groups across the nation and bringing in unlikely allies from football teams to religious leaders. It mobilised tens of thousands of people to march in the streets and to tell their personal stories around kitchen tables.
Second, the transformation of the marriage equality campaign ahead of the postal survey, from one that was community-owned and driven to one that was top-down, donor-driven and professionalised, resulted in deeply flawed outcomes. This transformation occurred in 2016 and was led by major donors to the ‘Yes’ campaign who acted out of the best intentions: winning a ‘Yes’ vote. But they weren’t accountable to the LGBTIQA+ community or able to draw on its experience of defeating prejudice. I’ll call this the managerial campaign because the top-down structure managed stakeholders rather than campaigning for change.
The managerial campaign refused to challenge the new movement against marriage equality that grew up in the final years of the marriage debate and focused on “religious freedom” and “gender fluidity in schools” rather than same-sex marriages. The managerial campaign didn’t understand that it was possible to engage with the negativity of the ‘No’ case in a way that would turn that negativity into another argument for equality. It took the opposite approach and made marriage equality a small target out of fear of losing ‘Yes’ voters. But a ‘Yes’ vote was never in doubt. Instead, vulnerable LGBTIQA+ people were left to defend themselves, and we lost the best chance we had to nip resurgent prejudice in the bud.2
The managerial campaign also failed to fend off compromises in the final marriage legislation that allowed anti-LGBTIQA+ discrimination in the name of “religious freedom”. These compromises gave Australia some of the world’s worst marriage equality legislation. Again, this was not necessary. Given strong momentum after the ‘Yes’ vote, better legislation would have passed. The managerial campaign was simply too close to politicians making decisions and not close enough to those affected by those decisions.
Now, I want to turn to resurgent prejudice that made such inroads at the end of the marriage equality debate, particularly where it came from, the tricks its plays and the threat it poses to reforms to come.
One measure of how important marriage equality has been is the strength of the backlash to it. This backlash arose first in the United States following the US Supreme Court’s decision to allow marriage equality across that country. It took three forms:
1. Weakening discrimination protections under cover of “religious freedom”
In the US this began as an attempt to protect the “religious freedom” of bakers and marriage registrants to refuse to provide services to marrying same-sex couples. But it soon grew into state Religious Freedom Restoration Acts which allow the denial of many different services to LGBTIQA+ people and others who fall foul of traditional religious values. “Religious freedom” advocates justified this discrimination with a confected, fear-based narrative that traditionalist Christians are now an oppressed minority who need protection from persecution by LGBTIQA+ people and our allies.
In Australia the “religious freedom” push also took root as provisions allowing discrimination in wedding services. In response to the case of rugby player, Israel Folau, who was disciplined for public comments against LGBTIQA+ people, “religious freedom” advocates successfully pushed for the Federal Government’s Religious Discrimination Bill. It purports to protect people from discrimination on the basis of their faith, which is something we can all support. But it actually allows discrimination and hate speech in the name of faith. In short, the movement demanding more “freedom for faith” is actually seeking privilege for prejudice.
2. Blocking transgender recognition, inclusion and equality
Activism steadily raised the visibility of trans and gender diverse people throughout the 2000s. But since the US adopted marriage equality in 2015, anti-transgender prejudice has been very deliberately weaponised across the western world. Marriage equality makes it harder to demonise gay and lesbian people. Trans and gender diverse people are a smaller and less understood minority. It’s no coincidence that after marriage equality in Australia, the ‘No’ campaign transformed into Binary, a group dedicated to opposing trans inclusion and equality.
In the United States, the contemporary anti-trans movement began as state “bathroom bills” outlawing trans and gender diverse people from using bathrooms corresponding to their gender identity. In Australia, the anti-trans movement has focused on young trans people transitioning, and trans inclusion in sport and schools.
As with “religious freedom”, the anti-trans movement has developed a victim narrative to legitimise itself and confected a fear-based narrative to draw public attention. These narratives are essentially that “the safety of women and girls” is threatened by “biological men invading women’s spaces”, despite evidence overwhelmingly showing trans women at greater risk of violence and discrimination.
3. Blocking LGBTIQA+ school inclusion
Schools have always been a favoured playground for culture warriors and moral panickers. In the United States and Australia there have been campaigns against LGBTIA+ school inclusion for decades. But like trans equality, school inclusion programs were weaponised to undermine support for marriage equality and then as a backlash to it.
In 2016 and 2017 Australia’s first federally funded LGBTIQA+ inclusion program, Safe Schools, was targeted by fearmongers. Since then, similar programs continue to be targeted with One Nation going so far as to introduce a Bill that would outlaw inclusive policies and practices.
The cover for all this? Parental rights. The confected, fear-based narrative? LGBTIQA+ inclusion actually fosters bullying rather than diminishing it. The true victims? LGBTIQA+ students who are thrown to the wolves of stigma, hate and isolation.
This three-fold backlash to marriage equality continues to grow. Sadly, too many institutions that stood with the LGBTIQA+ community towards the end of the marriage debate, when it was easy, have retreated from their former ally-ship. Not surprisingly, community surveys show LGBTIQA+ Australians feel as bad now as they did during the postal survey when their rights were up for grabs.3
In the midst of this backlash it can be hard to focus on future challenges, but focus we must if we are to move beyond the backlash.
Reforms to come
Here’s a short and by-no-means exhaustive laundry list of those future challenges…
A ban on LGBTIQA+ conversion practices
These practices are based on the pseudo-scientific ideology that LGBTIQA+ people are “broken” and can be “fixed”.
Australian research shows they are still being undertaken and have a disastrous impact on mental health. Bans have been enacted in Victoria and the ACT, with a watered-down version in Queensland. The other states are debating it.
A ban on unnecessary medical intervention to “normalise” intersex children.
Unnecessary medical interventions on children with variations of sex characteristics still occur and cause deep harm despite. A ban has been recommended by the Human Rights Commission and the Tasmanian Law Reform Institute. It is currently being considered in Tasmania, Victoria and the ACT.
Allowing trans and gender diverse people to amend their birth certificates without medical intervention
This has been enacted in Victoria and Tasmania with Tasmania allowing the removal of gender from birth certificates altogether. It is currently being considered in NSW and WA.
Removing exemptions that allow discrimination against LGBTIQA+ people by faith-based schools, hospitals and welfare agencies
Tasmania is the only state that does not allow this discrimination. The ACT does not allow it in schools. The Federal Government has yet to fulfill its promise to protect LGBTIQA+ students from discrimination under the Sex Discrimination Act.
Removing the ban on blood donation by sexually active gay and bisexual men, and trans women
The current ban stigmatises LGBTIQA+ people as a threat to public health and reduces the amount of safe blood available to save lives. In a number of countries, including the UK, the has been replaced by a new policy that screens all donors for the individual risk. \
The post-marriage equality backlash is making some of these reforms harder to achieve, especially a ban on conversion practices, recognising gender identity and removing religious exemptions. The standard objections, as I’ve indicated already, are that these reforms threaten religious freedom, women’s rights, parental rights, or all three.
So, how are we making change?
A return to community-based campaigning
Australia’s two most successful LGBTIQA+ law reform campaigns since marriage equality have something in common.
The Victorian campaign to ban conversion practices resulted in the world’s best legislation despite a strident campaign for “religious freedom” and against trans folk.
The Tasmanian campaign for gender recognition also resulted in laws that are the best in the world despite very noisy fear-based, anti-trans campaigning.
Both those campaigns were led by the people directly affected. They organised themselves into campaign groups with clear strategies. They not only told their personal stories to politicians and the community, they also drafted legislation, set policy guidelines, crafted their own media messages and worked with decision-makers every step of the way. They made sure members of affected groups were engaged and their leaders accountable. They found new and more effective ways to conceptualise the problem they faced and solutions to these problems, and to translate both into law.
They didn’t relinquish control to government or nongovernment professionals who sought to make reform a small target and were satisfied with the easiest outcome. They didn’t believe the empty promises of those politicians who want to please everyone and satisfy no one. They didn’t hide from opponents of reform, but flipped the opposition’s case around, judo-like, into another argument for reform. They didn’t accept expedient compromises to keep existing supporters. Instead, they patiently educated everyone about why reform was necessary, creating supporters in the process and bringing them along.
In short, they followed the high standard set by the community-based campaigns for decriminalisation in Tasmania and for marriage equality nationally, and avoided the pitfalls of the managerial, top-down approach I’ve already described.
These post-marriage equality campaigns light the path toward full equality for the LGBTIQA+ community and our allies. They show how we can overcome the backlash and make real change. They hold out the promise of an Australia that is truly inclusive of all LGBTIQA+ people.
- Rodney Croome, ‘Lessons from the Rainbow isle: Rodney Croome on Advocacy’, Q News (online, 15 November 2020) https://qnews.com.au/lessons-from-the-rainbow-isle-rodney-croome-on-advocacy/.
- Rodney Croome, ‘Why it Was a Mistake to Make Marriage Equality a Small Target’, Q News (online, 30 January 2018) https://qnews.com.au/mistake-make-marriage-equality-small-target/.
- Mike Hitch, ‘New Research Shows Religious Debates Taking Heaving Toll’, Star Observer (online, 16 November 2019) https://www.starobserver.com.au/news/new-research-show-religious-debates-taking-heaving-toll-on-lgbtiq-australians/189815.