Mr. John Howard
Suite MG8, Parliament House
Canberra ACT Australia 2600
Dear Prime Minister Howard,
I am writing on behalf of Human Rights Watch, an independent nongovernmental organization that conducts investigations of human rights abuses in more than eighty countries around the world. Since 1978, Human Rights Watch has sought to promote respect for international human rights throughout the world. We work in cooperation with governments and local groups to develop legal and policy responses to address abuses and the underlying conditions that enable them.
I write with regard to the report of Australia’s Human Rights and Equal Opportunity Commission (HREOC) on discrimination against same-sex couples, Same-Sex: Same Entitlements. I urge you to express your public support for the report’s recommendations, and work to eliminate all forms of discrimination in law and policy that endanger families formed by lesbian and gay couples.
The report was launched on June 20 by an independent statutory body tasked to monitor discrimination protections in domestic law. (The Human Rights and Equal Opportunity Commission Act 1986, which created it, also empowers the HREOC to examine whether Australia is complying with its obligations under international human rights treaties.) The HREOC identified 58 federal laws “on Australia’s books which deny basic financial and work-related entitlements to gay and lesbian couples and their children.” These forms of discrimination do not merely damage families. They violate international human rights law.
The Commission’s inquiry found that:
Same-sex couples and families get fewer leave entitlements,
less workers’ compensation, fewer tax concessions, fewer
veterans’ entitlements, fewer health care subsidies, less
superannuation and pay more for residential aged care than
opposite-sex couples in the same circumstances. Same-sex
couples are denied these basic financial and work-related
entitlements because they are excluded from the definitions
describing a couple … Federal law after federal law defines a
‘partner’ or a ‘member of a couple’ or a ‘spouse’ or a ‘de facto
spouse’ as a person of the opposite sex.
These inequalities involve areas of law such as taxation, worker’s compensation, social security, and veterans’ entitlements. Foreign same-sex partners of Australian citizens or residents have unequal rights, against opposite-sex partners, in obtaining visas or immigrating to Australia. Families, including those with children, can be separated. The Aged Care Act and similar laws do not recognize same-sex couples, subjecting gay and lesbian elderly to unequal financial burdens.
Most painfully, the report documents how gay or lesbian parents’ relationships with their children are often not recognized in law. For example, someone who has co-parented a child may have no rights if a partner dies. The report condemns a situation where lesbian and gay parents must struggle unequally and unduly “to protect the best interests of their child, purely on the basis of their sexuality.” The resulting discrimination injures children as well as parents.
In addition to discrimination based on sexual orientation, the report found that discrimination based on gender identity is widespread. It documents that health care and elderly care services “do not adequately cater for people with diverse gender identity.” It found that transgender people face difficulties in obtaining identity papers or passports in their affirmed gender. It noted that numerous state and territorial laws that permit legal recognition of a transgender person’s affirmed gender require nonetheless that the individual be unmarried: and it documented other legal barriers to the recognition of transgender people’s relationships.
The report found that, beyond their concrete effects, discriminatory laws “are an endorsement of homophobia,” creating an environment in which the state approves prejudice and warrants inequality. And it urged that wherever the “definition of ‘spouse’, ‘de facto spouse’, ‘partner’, or ‘member of a couple’ already includes a person in an opposite-sex couple it should also include a person in a same-sex couple. … This type of reform has already occurred in all states and territories and it should now occur in the federal jurisdiction.”
Australia’s obligations in this regard under international human rights law are clear. They are affirmed by an international jurisprudence in which Australian law and policy have previously been at stake. In the landmark case of Toonen v Australia in 1994, the UN Human Rights Committee — which monitors states’ compliance with the International Covenant on Civil and Political Rights (ICCPR) — held that sexual orientation was included in the ICCPR’s anti-discrimination provisions as a protected status. In Young v Australia, 2003, the Committee affirmed the partnership rights of same-sex couples, determining that Australia, in denying pension rights to the surviving same-sex partner of a war veteran, violated the ICCPR.
Moreover, article 2 of the Convention on the Rights of the Child (ratified by Australia in 1990) requires states to ensure that a child is protected against “discrimination of any kind,” including discrimination based on its parents’ status or activities. The UN Committee on the Rights of the Child has held (in General Comments 3 and 4 on the Convention) that these protections include discrimination based on sexual orientation.
To date, you and your government have made extraordinary statements and steps opposing equality in civil marriage for same-sex couples. In 2006, for example, the Department of Foreign Affairs and Trade (DFAT) ordered Australian embassies not to issue certificates of unmarried status to Australian citizens seeking to marry a gay or lesbian partner, even in countries where that is legal. This record of stressing the discriminatory and exclusive character of marriage in Australian law is one that we urgently hope will change.
Human Rights Watch supports and urges full equality in civil marriage. We also support measures to defend families against unequal treatment and the attendant abuses. The “Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity, developed by a group of experts in international law and released in 2007, state that
Everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members.
The Principles urge states to “Ensure that laws and policies recognise the diversity of family forms, including those not defined by descent or marriage, and take all necessary legislative, administrative and other measures to ensure that no family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members, including with regard to family-related social welfare and other public benefits, employment, and immigration.” They also urge that “in all actions or decisions concerning children … the best interests of the child shall be a primary consideration, and that the sexual orientation or gender identity of the child or of any family member or other person may not be considered incompatible with such best interests.”
In light of the HREOC’s report, Human Rights Watch calls on you to end all legal or policy discrimination against lesbian, gay, bisexual, and transgender people and their families in Australia.
Sincerely,
Boris Dittrich
Advocacy Director
