Rights are “those things that one is morally or legally entitled to do or have” . They are the minimum threshold of equality in modern society. Today, however, the rights of certain sectors of society are not equal, rather they are frequently under recognised, depressed or absent depending on the societal group that individuals associate with. That said, rights have been, and are, constantly evolving, particularly so when consideration is given to matters of race, gender, ethnicity etc. Indeed, in the last century, race, gender and ethnicity have been the focal point of the human rights evolution.
This evolution however is slow; there is a long way to go before equality will be reached.
In Australia, this evolution is ever so prominent with the LGBTQI community, as they fight to cement their standing in society. The LGBTQI Community is a group of people that stand under the acronym LGBTQI, where each letter of the acronym represents a section of the society, namely L stands for lesbian, G for gay, B for bisexual, T for transgender, Q for queer or questioning and I for intersex.
The Community’s goal is to reach the same level of rights as heterosexuals in the modern population. This article explores the political and civil rights of the community and how their human rights are evolving.
Every day in the media we see that political and civil rights have been violated regardless of the sector of society that is considered. This is especially present with the growing digital age as well as countries that have refused to scrap long standing societal values even if they are discriminatory.
Australians can be viewed as lucky due to their freedom to express our political and civil rights. Australia has been ranked 40/40 for its political rights and 58/60 for its civil liberties . This gives Australia a near perfect score of 98/100 in a wide range of areas. While this is an impressive achievement and Australians should be proud of this recognition, this does not mean that there still no discrimination in Australia. To the contrary, a focus on the LGBTQI community shows that discrimination is very much alive in Australia. That discrimination has not allowed the community to fully express its political and legal rights even though there has been significant improvements in the both these rights for the community.
Political rights are defined as “the rights that involve participation in the establishment or administration of a government” . Political rights in Australia have evolved over the decades with all sorts of ethnicities and people of different sexual persuasion being able to participate in any form of government whether it be state or federal government.
Legal rights are “clearly, rights which exist under the rules of legal systems or by virtue of decisions of suitably authoritative bodies within them” . These commonly include the legal right to vote or a common legal right for LGBTQI being the legal right to marriage.
Full rights will only happen when people of all genders, ages, races, families have the same access to all human, political and legal rights. It involves a consistent set of rights that are easily defined.
The main event that started the LGBTQI movement in Australia occurred in the United States and is referred to as the Stonewall Inn Riots. It involved gay men, drag queens and Women who fought/protested the police when they were raiding the Stonewall Inn to expose those who were gay. At the time in the United States being gay was seen as a mental illness and gay sex was a crime. This protest kick started the gay movement in Australia which had been building but never got traction due to widespread discrimination. The San Francisco Gay Freedom Day organisers called upon gay organisations within Australia to stand up for LGBTIQ+ rights and commemorate the Stonewall riots . This led to events being held in Australia such as the Mardi Gras festival that has become an annual event, which is held to fight for rights in the community. The riots also lead to marches which stood up for LGBTQI rights.
While there has been no policy implemented into the Australian government that bans homosexuals running for parliament, there has been significant discouragement from the community. This was common practice back in the 1970’s when society had more conservative values. Neil Brown is an example of how conservative societal values discriminate against homosexuality. Mr Brown came out after serving 18 years in parliament. His term ended in 1991 and he “came out” in 1996 . Had he “come out” before parliament he almost certainly would not have been elected when he first went for parliament in 1971, he would likely have not been able to obtain the votes for his seat. Another example of how conservative values have stopped LGBTQI people from expressing their political rights is Neal Blewett, the former health minister. After 17 years in politics he came out as gay in 2000 . He first went for parliament in 1977, Mr Blewett waited 17 years before coming out as gay.
While Australian society is largely still very conservative, today’s society is more accepting of all ethnicities and choices. Australians are now seeing that LGBTQI politicians are breaking their silence and trying to break the stigma that surrounds their community. An Example of a politician that broke the stigma was Bob Brown, who was the Greens Leader. Mr Brown “came out” while he was in parliament and advocated for the rights of the community . Another example of a parliamentarian breaking the stigma, is Penny Wong who is the first openly lesbian member of parliament . These Examples show that over the past 40 years there has been a shift in the political right for gay, transgender, lesbian people to run for government but there is still a long way to go before equality of rights are reached.
Australia has come a long way in recognizing LGBTQI rights compared to other countries. In the global economy 72 countries still outlaw the LGBTQI community with some countries still enforcing extreme punishment of death on anyone that is found to be LGBTQI. For example the LGBTQI community is outlawed in Morocco and Iran, meaning that LGBTQI people cannot participate in their local government violating their political rights.
While the LGBTQI community has never been lawfully excluded from parliament in Australia the community has not been able to fully express its political rights in practice. Societies values have had to evolve from a conservative mindset back in 70’s with Neal Blewett and Neil Brown having to wait for the right time to modern society where we have become more accepting and open to change. This shows promise for the future as the group will hopefully one day be able to run for government and be able to express their full political right without the fear of persecution.
In Australia, legal rights have evolved over time, through the introduction of bills to allow the LGBTQI community full access to their legal rights. Until recently, in Australia, the gay community was unable to get married legally under the Marriage Act 1961, meaning they could not express their legal rights. In 2017, the Marriage Act 1961 was amended introducing changes to the definition of marriage. The definition of marriage was changed to “‘the union of 2 people to the exclusion of all others, voluntarily entered into for life” . This was a huge mile stone for the LGBTQI community as people of the same gender could now have their marriage legally recognised.
While amendment of the Marriage Act was a huge mile stone for the LGBTQI community the Act does not fully recognise the political rights of the community as foreign couples’ marriages are not recognised. In the Marriage Act 1961, section 88EA requires that marriages between a “man and another man” and a “woman and another woman”, “must not be recognised as a marriage in Australia” . Recent amendments to this section have changed this Act, but those amendments do not fully allow marriages between same sex couples to be recognised in Australia unless certain criterions are met. A foreign marriage will only be recognised between same sex couples if the marriage was legal at the time. This still means that couples from 72 countries would not have their same sex marriage recognised in Australia meaning the community is still not able to effectively communicate their full legal rights. These small intricacies of the bills show that while we have progressed as a country in fighting for the community’s rights, we still do fail in other areas.
LGBTQI legal rights in Australia still do not allow full expression of legal rights for the LGBTQI community, yet Australia is more progressive than other countries. For example, Egypt has laws banning the act of same sex relationships with Egyptian Law 10/1961 on the Combating of Prostitution Act making homosexual behaviour illegal leading to three months to 3 years in prison for anyone found guilty. Couples may also be placed in ‘special reformatory’ conditions upon completion of their prison sentences. The action of placing people in ‘special reformatory’ could be classified as an action that violates the groups human rights so their legal rights would be non-existent. The punishment also carries a fine between 25 LE and 300 LE which transcribes to between US$3 and $40 . While this is a harsh punishment there are worse out there. In countries such as Qatar and Saudi Arabia, the act of homosexuality can be punished by death depending on the laws and circumstances surrounding the act that was committed by the couple. These countries show that while Australia has come a long way with its laws in allowing the group to express their legal rights with our new marriage laws, there is still work to do.
The legal right to work exists under laws that have been created by the Australian Government. The Sex Discrimination Act and the Fair Work Act were created to ensure that people in the workplace are not discriminated because of gender-related identity, race, age, physical or mental disability, marital status, and family . This applies to the legal rights of the LGBTQI community as these laws exist to ensure that LGBTQI community members have fair conditions in the workplace that allows them to express their full political right to work . However, in practice this is not the case as there is widespread discrimination in the workplace when it comes the LGBTQI community. For example, more than 13% of LGBTQI people have resigned from their job because of discrimination and 8% had been unfairly sacked .
This shows that the Fair Work Act is fundamentally flawed in its application as companies are still able to get around these laws and not allow the community to express their fundamental legal right to work. More than a quarter of LGBTQI personnel have been bullied or harassed by a colleague at work based on their sexuality. Further, six out of 10 LGBTQI people in Australia have experienced homophobic language in the workplace with two in ten experiencing physical violence in the workplace . This shows that Australian society still has a long way to go in recognising LGBTQI rights. The fundamental flaws of these Act, which are meant to protect minority groups like the LGBTQI community come in their implementation. A way to improve this would to set up a watchdog that looks out for the community, in expressing their right.
LGBTQI workplace discrimination also follows a similar trend in the United States. In a study conducted by Karen Sumberg looking at US employment histories, Ms Sumberg found that 50% of LGBTQI community members left out their sexual identity when going for a job . ‘Forty-eight per cent are not out at work. Of that 48 per cent only 17 per cent are not out in their personal life either” . So, a big percentage of individuals have come out in their personal lives but are not out in their work lives.
A US survey in 2013 found that “21% of LGBTQI respondents had reported that they had been treated unfairly by an employer in hiring, pay, or promotions” . This shows that not just in Australia but in the United States LGBTQI members are not able to express their full legal right to work as they feel afraid to come out of work, they experience abuse and in some circumstances are paid unfairly.
The legal rights of the LGBTQI community were crushed when an excuse commonly referred to as the “Gay Panic defence” was introduced in a trial. The defence gives justification to the killing of a member of the LGBTQI Community as the perpetrator claims they made gay advances towards them.
The first high profile instance of the defence being used in a court room was in 1944 with Lucien Carr killing a boy scout. The defence claimed it was a sudden emotional response due to the advances that a gay member had been making towards him . This gave birth to the excuse for killings.
It’s thought that the first use of the gay panic defence that successfully passed in Australia was in a Victorian case called R v Murley in 1992 . The Panic Defence is discriminatory, it crushes the community’s ability to get legal justice if one of their members has been killed because of Discrimination. The law was removed in Australia at the turn of the century, which is a good step forward in terms of the legal rights for the community. However, the precedent could still be used in South Australia until 2018 when proposed reforms were introduced into their law system to remove this defence .
The fight for rights in the LGBTQI community has been a long a painful process. The community started its fight in Australia after the Stonewall Riots. Ever since then new policies have been introduced and society has changed to become more accepting of the LGBTQI Community as shown through Neil Brown and Penny Wong who have broken the stigma around gay people becoming parliamentarians. This gives birth to the idea that society has moved away from its conservative mindset to allow the community to express its political right to a modest extent but there is still work to be done as overseas countries try to suppress their political rights by outlawing the community.
The legal rights of the LGBTQI community has been implemented through legislative initiatives such as the Sex Discrimination Act and the Fair Work Act, but we have seen that the practicality of these Acts, falls short of full legal rights for the LGBTQI community.
We still see large amounts of the community being discriminated against and this is happening around the world. The legal right to marriage while controversial has been implemented for the LGBTQI community through the Marriage Act 2017, which improved the previous Act which reflected a conservative time where the LGBTQI community would have been looked down upon. This amendment is a huge milestone for the community as they can now have their love officially unified in marriage, which works towards the community being able to express their full legal rights but as previously stated the group still has a long way until they will be able to reach that goal. The Gay Panic defence was a historic way of being able to get away with discriminatory killing before the early 2000’s because of a case in the United States. This has been scrapped, which allows the community’s legal rights to be upheld in the legal system as no excuse can justify the killing of a person. This change though is only one of a vast number of changes that are required to bring about sexual equality. The biggest change will always be conservative understanding, but every change is a change for the better as Australian pushes towards equality of sexual rights.