Rodney Croome is an Australian human rights hero, with a new book out on 3 May outlining the arguments for marriage equality.
He writes here for The Gay Marriage Blog, to explain just how quickly a state or country can go from jail for gays to relationship recognition. If you are in Africa, Kansas, Poland or China, or anywhere without equality – this story is an inspiration.
(Download a PDF of the article here, or read on below)
In a few short years, Tasmania went from having Australia’s worst laws on same-sex relationships to the best. It was an unlikely and profound transformation which holds out hope for full legal equality for same-sex couples across Australia.
Up until 1997 Tasmania still criminalised male-to-male relationships with life imprisonment, despite the repeal of similar less-stringent laws in the other Australian states. For years in Tasmania gay law reform remained highly contested and was by no means inevitable. And yet today same-sex couples can have their relationships legally recognised in Tasmania, including the right to a public ceremony creating their union.
In 1988 one of the first attempts by Tasmanian gay rights advocates at raising awareness of the harsh laws met with quick and heavy-handed repression. A stall established at Hobart’s popular Saturday Salamanca Market to gather signatures on a gay law reform petition was closed down by the Hobart City Council. When the advocates refused to abide by the Council’s decision police were brought in and over two months 130 people were arrested in what remains Australia’s biggest act of gay rights civil disobedience.
Thanks to public outrage, advocates won the right to have their stall, but pretty soon found that resistance to law change was just as strong as resistance to their advocacy. An anti-gay movement sprang up, conducting hateful rallies and letter-writing campaigns across the state. In response, the Upper House of Tasmania’s Parliament repeatedly and angrily rejected reform, with some members calling for the return of the death penalty for homosexuality. According to Richard Archer MLC homosexuals are criminals who should be “tracked down and wiped out, like murderers…” (Tasmanian Legislative Council Hansard, November 1989). All this led, in turn, to the international press dubbing Tasmania “Bigot’s Island”. Advocates were left with little choice but to take their case beyond Tasmania’s shores and in 1991 they lodged Australia’s first case before the UN Human Rights Committee.
Four years later, in a landmark decision that set a global precedent, the UN found Tasmania’s laws in breach of international human rights standards. The Australian Federal Government now had the authority to act. But it still needed prompting. This took the form of a national boycott of Tasmanian produce, the intervention of Amnesty International, and rallies around the nation. In Hobart gay men turned themselves into police with detailed statements about their sexual activity. Their lesbian friends, angry about how the laws fostered discrimination against them as well, joined the protest by admitting they were “accessories after the fact”. When the Tasmanian authorities refused to prosecute, despite ample evidence crimes had been committed, the nation demanded to know why it was being embarrassed by laws that weren’t even enforced. . In December 1994, in response to this public outrage, the Federal Parliament passed legislation entrenching the right to sexual privacy for all Australians.
But still the Tasmanian laws remained on the books fostering direct discrimination against gay lesbian, bisexual and transgender people; from Tasmania’s streets and workplaces through to the state government’s education and health policies. Gay bashers justified their violence to police on the basis that homosexuality was illegal. The Tasmanian Government refused to protect GLBT people from discrimination or allow information about homosexuality in schools on the same basis. Even queer film festivals were banned by the Government because “homosexuality is against the law”. Advocates responded with another landmark case, this time an appeal to the Australian High Court asking it to invalidate the Tasmanian laws under the national sexual privacy provisions. When the Court accepted this case the Tasmanian Government realised the game was up and on May Day 1997 the old laws vanished forever.
But the story of the Tasmanian gay law reform campaign isn’t only a story of parliaments and courts. More fundamentally, it is a story of ordinary people whose hearts and minds were transformed by the furious debate going on around them and by contact with LGBT people. Gay rights advocates conducted a community education campaign about the need for gay law reform which saw support for change go from 31% at the time of the Salamanca arrests to 57% when repeal finally occurred. Part of this attitudinal change was that gay law reform also came to mean something more than removing criminal sanctions against homosexuality. Gay law reform became synonymous with a new more open and inclusive Tasmania, an aspiration to which tens of thousands of Tasmanians could relate.
It was primarily because of this change in attitudes that law reform became possible. Attitudinal change is also why decriminalisation was followed by an astounding outpouring of new, progressive laws and policies. In 1999 the Tasmania Parliament enacted a new anti-discrimination law, one of the most comprehensive and progressive in the world. Education and health policies were reformed, not only to remove overt discrimination against LGBT people but to encourage acceptance of sexual and gender diversity. In 2003 all this was crowned by the Relationships Act. This law has not only given unmarried same and opposite-sex couples the same entitlements as married partners in state and federal law. It also extended these entitlements to all other personal relationships, including companionate and familial relationships. Most importantly, it established a relationship registry, the first scheme for the formal recognition of unmarried couples in Australia. The registry is a civil union scheme allowing couples to secure their entitlements and gain official recognition. It also allows couples to publicly affirm their love and commitment through officially-recognised ceremonies that bring their new legal relationship into being.
Tasmania’s relationship registry was never intended as a substitute for same-sex marriage. It was designed to sit beside marriage as an alternative for those who can’t or don’t wish to wed. Either out of ignorance or cynicism the Australian Federal Government has overlooked this, constantly positioning “the Tasmanian model” as a (very inadequate) answer to the demand for marriage equality. But in Tasmania there has never been this confusion. In 2005, Tasmania was the first Australian state to see the introduction of state same-sex marriage laws, intended to complement our registry. These laws, pioneered by the Greens, do not have the support of the governing Labor Party, but that hasn’t stopped the Tasmanian branch of the Labor Party from endorsing the principle of marriage equality, again a first in Australia.
The Tasmanian campaign for gay law reform has much in common with the broader national and international campaign for marriage equality. Both were/are deeply polarising, with supporters of equality and socially-conservative Christian voters adopting almost irreconcilable positions. This division was/is reflected in the political sphere in the antagonism, fear and paralysis of politicians in both major parties, making both issues irresolvable by politics alone. Both issues took/take on a cultural significance beyond themselves. On the basis of these similarities, what lessons can the Tasmanian transformation offer those keen to achieve full legal equality for same-sex couples?
The first is that appeals to courts and tribunals can have a vitally important role to play in drawing attention to, and advancing, the issue. There is no national charter of rights in Australia to enable the kind of marriage equality appeals that have played such an important role in achieving reform in Canada and some US states. As the Tasmanian campaign showed the UN Human Rights Committee can fill this gap, but on marriage equality the Committee has proven itself less than friendly. Instead of focusing only on these negatives, equality supporters should instead look with a creative eye at state charters, as well as a limited range of rights entrenched in the Australian constitution, to see how progress might be made.
A second important lesson is that marriage equality will not be achieved without a direct appeal to the hearts and minds of ordinary Australians. Opinion polls show that, already, 60% of Australians support marriage equality. But to convince politicians nervous about the impact of the issue in outer-urban seats with anti-equality “mega-churches”, it is necessary for reform advocates to show that those who support equality are just as passionate as those who oppose. This means reaching them with the kind of personal experiences that compellingly make the case for change, for example, couples married in Canada but denied recognition in Australia, and partners denied access to their loved one in hospital because they didn’t have a marriage certificate.
A third lesson is that when marriage equality becomes a metaphor for something larger than itself – for a new, more inclusive and more equitable Australia – the interest and enthusiasm of heterosexuals increases dramatically. Not only gay law reform in Tasmania, but marriage equality in places like Canada and Spain, show how equality becomes more compelling when it is woven into a society-wide aspiration for fairness and tolerance.
We must see additionally that fourthly, none of these strategies are sufficient in themselves to achieve change. They must be woven together so the campaign for equality becomes a kind of symphony – each part indispensable to the whole, and each playing itself out in harmony with the others.
The final lesson is about the state-of-mind of those who champion or benefit from change. It’s important not to fear or be defeated by the prejudice and hatred an issue like marriage equality can spark. This hate pre-exists the demand for full equality and while it may be brought to the surface by this demand, it will also, sooner or later, be dispelled by it. Put another way, there is no healing without some inflammation. It is also important never to lose hope or lapse into despair. They are the greatest enemies of LGBT equality, and social progress generally, far more corrosive than homophobia, and far more likely to hold back change.
These lessons are particularly important in Australia today. Opposition to marriage equality from both major parties with little immediate prospect of change leaves many supporters of reform feeling despondent, disempowered and vulnerable to second-best options like a national, marriage-like civil union scheme. But if the Tasmanian experience tell us anything, it is that change from below is possible, indeed if the ground work for change is laid over a period of years there will be a point at which political change becomes inevitable.
Sometimes marriage equality can seem like an impossible dream. Sometimes the anger of marriage equality’s opponents and the indifference of decision-makers can seem all-too-great. But when I feel like change to our marriage laws may never come, I recall the moment in December 2008, twenty years after the arrests at Salamanca Market, when the Lord Mayor of Hobart on behalf of the City’s Council publicly apologized for those arrests and committed the City to a future without prejudice. If a little place at the end of the world, dismissed by the rest of the world as “Bigot’s Island”, can re-invent itself to as global leader on gay rights then anything is possible. Compared to that transformation, the recognition in Australian law that same-sex couples have the right to marry shouldn’t be hard at all.
Rodney Croome is the campaign co-ordinator of both the Tasmanian Gay and Lesbian Rights Group and Australian Marriage Equality. In 2003 he was made a Member of the Order of Australia for his gay and lesbian human rights advocacy. He is an honorary lecturer in sociology at the University of Tasmania and lives with his partner in South Hobart, Tasmania.
Tags: Australia, relationship recognition, Rodney Croome, Tasmania
