Welcome to my first blog post.
To celebrate my friend getting engaged I've decided to start this blog by posting a recent essay that I submitted for a TAFE assessment. For the assessment we had to write an argumentative academic essay on the subject of our choosing, and I chose same sex marriage. My thesis statement is, "The legal definition of marriage in Australia should exclude any gender specification."
When I first mentioned my essay on Facebook a month ago I had a few people mention that they'd like to read it when I was done, so that's why I'm posting it here.
The legal definition of marriage in Australia should exclude gender specification
Written by Danielle Logue. Submitted 6/6/2012
The legal definition of marriage in Australia should exclude
any gender specification. The Australian Law should no longer define marriage
as being “the union of a man and a woman to the exclusion of all others,
voluntarily entered into for life” (Parliament of Australia, 2011) but instead should
define it as the union between two consenting persons with the exclusion of all
others, voluntarily entered into for life. Gender specification in Australian
marriage law violates basic human rights. Gender specification in the Marriage
Act has dehumanised same sex couples and members of the transgender community.
Including gender specification in the Marriage Act has made those laws
contradictory to other laws pertaining to relationships.
Gender specification in Australian marriage law violates
basic human rights. Article 16 of the Universal Declaration of Human Rights states
that, “Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family. They
are entitled to equal rights as to marriage, during marriage and at its
dissolution. Marriage shall be entered into only with the free and full consent
of the intending spouses.” (United Nations, 1948). It makes no
specification that marriage should only be between a man and a woman, only states
that men and women should all be free to marry.
In 2011, Australia and a number of other countries joined
together in the United Nations Human Rights Council to condemn violence and
discrimination against persons because of their sexual orientation or gender
identity. By doing this Australia recognized that discrimination against homosexuals
because of their sexual orientation is a human rights issue (Raj, 2012).
However, just twelve months prior the Australian Senate rejected the Same Sex
Marriage Bill. The Bill was put to vote in the Senate on 26th
February, 2010 with a staggering forty five votes against compared to the five
in favour of the Bill. Almost a third of the Senators did not show up on the
day of the vote, many abstaining due to their conscientious objection of their
own party’s preference (Schubert, 2010).
Gender specification in the Marriage Act has dehumanised
same sex couples and members of the transgender community. Defining marriage as
only being between a man and a woman is isolating people of the Lesbian, Gay,
Bisexual, Transgender and Intersex community (LGBTI). In addition, it is making
a distinction that one kind of love is somehow more acceptable to society and
that if people do not conform to this standard they are abnormal and should be treated
as second-class citizens (Australian Marriage Equality).
The inclusion of gender specification in the legal
definition of marriage stating that marriage should only be between a man and a
woman unwittingly reinforces the negative stereotypes that same sex
relationships are fleeting, fickle or unstable (Croome, 2012). The exclusion of
same sex couples has the potential to change marriage from a symbol of love to
an exclusive club that breeds prejudice and discrimination (Croome, 2012).
Including gender specification in the Marriage Act has made
those laws contradictory to other laws pertaining to relationships. In 2008,
the Australian Federal Government amended 85 different laws with regards to the
recognition of same sex couples. For the most part, they updated laws and added
the term “de facto partner” which is now inclusive of same sex couples, as
opposed to the opposite sex couple terminology such as “spouse”, “wife”,
“husband” or “de facto spouse”. As a result of this they had to define what a
de facto relationship is, and how they will recognise de facto partnerships (National
LGBTI Health Alliance, 2010). A de facto
relationship is defined as two people residing together who are not related,
not married to each other and who are living together as a couple. It is
possible to be considered in a de facto relationship despite one partner
already being married or in a de facto or registered relationship with someone
else (Family Court of Australia).
Same sex couples have the same legal rights and entitlements
as opposite sex couples when it comes to being in a cohabiting relationship,
yet opposite sex couples are the only relationship that can be made legitimate
by Australian Federal law. Registering relationships and being in a de facto
partnership does not guarantee the same kinship that marriage does. That is, a
married couple is automatically seen as being each other’s next of kin in the
event of death or disability. This is not the case for de facto relationships (National LGBTI Health Alliance, 2010).
De facto couples, depending on the states individual laws,
may have to prove their relationship and that they should have preference to any
surviving blood relatives such as children, parents or siblings of their
partner (National LGBTI Health Alliance,
2010).
For example, in Western Australia if one partner dies the matter is settled in
Family Court where they have to prove the existence of the relationship (Department of
Justice, Western Australia, 2002) while in Victoria
same sex couples who are in a registered relationship do not need to provide
any further evidence of their relationship at Family Court (Victoria Legal Aid, 2012).
Australia must keep up with the times and update its laws
accordingly. The institution of marriage has changed over time. Before they
amended it in the 1950s, there was an Australian law that stated an Indigenous
man could not marry a white woman (AAP, 2012). A century ago it
was not uncommon for women and men to be forced into marriages by family
pressure, another practice that was amended by the Marriage Act in 1961 which
stated that marriage must be voluntarily entered by both parties. (Parliament of
Australia, 2011)
There are many reasons to change the legal definition of
Marriage in Australia to exclude any gender specification. Not allowing same
sex marriage is discriminatory and violates basic Human Rights. It alienates an
entire group of Australians and makes them into second-class citizens in the
eyes of the law. The Marriage Act also conflicts with other existing laws and
regulations that regard same sex and opposite sex couples to be equal. Australia
needs to keep up with the rest of the world, and update laws accordingly to not
seem out of touch or old fashioned. Same sex couples should all be free and
equal to marry under Australian law.
Bibliography
AAP. (2012, June 1). Upper house lends weight to
push for gay marriage. Retrieved June 5, 2012, from Sydney Morning
Herald: http://www.smh.com.au/nsw/upper-house-lends-weight-to-push-for-gay-marriage-20120531-1zkuf.html
Australian Marriage
Equality. (n.d.). Australian Marriage Equality. Retrieved June 5,
2012, from Australian Marriage Equality: http://www.australianmarriageequality.com/faqs.htm
Croome, R. (2012, May 4). Marriage
equality: a symbol of love. Retrieved June 5, 2012, from Australian
Marriage Equality: http://www.australianmarriageequality.com/wp/2012/05/04/a-symbol-of-love/
Department of Justice,
Western Australia. (2002, November). New rights for de facto couples.
Retrieved June 5, 2012, from Family Court:
http://www.familycourt.wa.gov.au/_files/defacto.pdf
Family Court of Australia.
(n.d.). De facto relationships. Retrieved June 5, 2012, from Family
Law Courts:
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Separation+and+Divorce/De+facto+relationships/
National LGBTI Health
Alliance. (2010, January). Relationships | Wear It With Pride.
Retrieved June 5, 2012, from Wear It With Pride:
http://www.wearitwithpride.com.au/law-reforms/relationships/
Parliament of Australia.
(2011, April 19). Marriage Act 1961. Retrieved June 6, 2012, from
Australian Government ComLaw:
http://www.comlaw.gov.au/Details/C2011C00192/Html/Text#_Toc290889515
Raj, S. (2012, May 10). Marriage
equality: it’s about human rights. Retrieved June 5, 2012, from Amnesty International:
http://www.amnesty.org.au/features/comments/28608/
Schubert, M. (2010,
February 26). Senate rejects gay marriage bill. Retrieved June 5,
2012, from The Age:
http://www.theage.com.au/national/senate-rejects-gay-marriage-bill-20100225-p5zv.html
United Nations. (1948,
December 10). Universal Declaration of Human Rights. Retrieved June 5,
2012, from Universal Declaration of Human Rights:
http://www.un.org/en/documents/udhr/index.shtml
Victoria Legal Aid. (2012,
January 5). De facto and same sex relationships. Retrieved June 5,
2012, from Victoria Legal Aid: http://www.legalaid.vic.gov.au/defacto.htm
