Many senators have described today as the proudest in their parliamentary careers.

The bill will face its final hurdle in the House of Representatives next week when MPs resume the debate.

Senator The Hon. George Brandis said:

Australia may have been slow to reach this day – we are the last of the English-speaking democracies, and one of the last countries in what was once called Western Christendom – to embrace marriage equality. But when that day did come, it came triumphantly, it came joyously, and it came, most importantly, from the Australian people themselves. Like all of the best and most enduring social change, it was not imposed from above. The will for it germinated in the hearts and minds of the people themselves.

Now that the Australian people have spoken, it is for us, their elected representatives, to respond. And so, let us now complete the task which they have set us, and for which so many of us have worked for so long.”

This means that marriage equality is well and truly on track to become a reality by Christmas.

More on BucketOrange Magazine

Explainer: Marriage Amendment Bill Finally Hits Parliament, What’s Next?

One such example was the revelation that it is still legal in the UK to require that women wear high heels in the workplace. This all came to light when Nicola Thorp, who has since started a government petition to make it illegal for a company to require that women wear high heels at work, shared her story with the BBC about her first day at major accounting firm PwC. You can find the petition here.

Ms Thorp was told by Portico, the employment agency that runs PwC’s reception, that she would be sent home without pay if she refused to go out and buy heels. To add insult to injury, the firm also specified that the heels be between two to four inches high. Ms Thorp’s story has shone the spotlight on antiquated laws and highlighted the fact that discriminatory dress codes remain rife in the retail and tourism industries. Some of these practices require women to wear non-opaque tights and to not have visible regrowth from hair dying.

Under current UK legislation, employers can dismiss employees who fail to abide by “reasonable” dress code standards. But is requiring women to wear shoes that can cause serious and ongoing health issues, such as damage to foot joints and ongoing lower back, knee, ankle and hip pain a reasonable standard?

Ms Thorp’s petition that would allow women to have the option of wearing flat formal shoes at work has received 152,420 signatures and was debated in Parliament on 6 March 2017. While the debate is non-binding, the government committed to take action to eliminate corporate dress codes that apply to women but not men, including high heel requirements. The government’s position is:

Company dress codes must be reasonable and must make equivalent requirements for men and women. This is the law and employers must abide by it.

Employers are entitled to set dress codes for their workforce but the law is clear that these dress codes must be reasonable. That includes any differences between the nature of rules for male and female employees, otherwise the company may be breaking the law. Employers should not be discriminating against women in what they require them to wear.

The Government takes this issue very seriously and will continue to work hard to ensure women are not discriminated in the workplace by outdated attitudes and practices.”

Already, Ms Thorp’s petition has seen Portico amend their dress code which is now gender-neutral and no longer requires women to wear high heels.

In male-dominated industries, there are already enough barriers to entry into the workforce for women, without the imposition of gendered dress codes. While employers are entitled to require a certain standard of professionalism in their dress standards, there is a definitive line between smartness and sexism.

Couples in Victoria are now able to adopt children regardless of the couple’s sex or gender identity. Victoria has become the fifth Australian state or territory to provide for same-sex adoption, joining the Australian Capital Territory, Western Australia, New South Wales and Tasmania in making important law reforms. 

Martin Foley, Victorian Minister for Equality, said in a recent statement:

this law brings much needed certainty for many children and their parents who currently live in a legal haze in terms of their relationships with the people they love.”

The new legislation was passed in the Victorian Parliament last year, and took effect from 1 September 2016.

As a result of these changes, much of the terminology describing same-sex families in government issued forms has been rendered out-of-date and inaccurate.

A recent example can be seen in the ABS census forms which have faced significant criticism due to the exclusive use of the terms ‘mother’ and ‘father‘ to describe Australian families.

Rainbow Families, an organisation which supports and empowers LGBTQI families, has raised concerns that the census is not inclusive. That is, as a result of this narrowly-worded question (which contradicts legislative changes that enable same-sex couples to adopt children), families with same-sex parents will not be accurately counted in this year’s census data.

On the census form, questions are asked regarding the place of birth of the child’s ‘mother’ and ‘father.’ No alternatives are provided and there is no option to change the gender of such questions, which assume that every child has a mother and father.

Vanessa Gonzalez, from Rainbow Families, contacted the ABS to enquire about how same-sex parents may record their information on the census form. The information she received from the ABS provided that:

the most straightforward way [for same-sex parents to fill in their census data] is to have either one of the mothers [or fathers] use the father [or mother] response in the form.”

Same-sex families can either follow the above recommendation, or ask for a paper form which allows either the ‘mother’ or ‘father’ option to be crossed out, and for the true gender of a same sex parent to be correctly entered.

[pullquote align=”right” cite=”” link=”” color=”” class=”” size=””]In 2016 we should not be expected to still be crossing out government forms,” Vanessa Gonzalez says.[/pullquote]

Even where same-sex parents accurately record their census data, the ABS has not guaranteed that the gender of each parent will be collated in those instances.

Census Director, Duncan Young, has said that the questions regarding a child’s parents were aimed at the birth parents:

The reason why the question is structured the way that it is, is because of the interest in birth parents, however, if people feel that they should be reporting their own country of birth that’s okay as well”.

The question does not specifically ask for information about birth parents, it merely provides either ‘mother’ or ‘father’ as options to be selected. In view of the criticisms, Duncan Young has said the ABS would consider changes to the census form in future.

With changes in adoption laws across Australia, which provide for the adoption of children by same-sex parents, it is more prudent than ever that appropriate recognition is given to same-sex couples and that this is reflected and implemented across documents and forms in the Commonwealth government and other jurisdictions.

Since the 2016 online census form does not provide an option for same-sex parents, disappointingly, this year’s census data will not give an accurate representation of same-sex families in Australia.

Gender other than male and female

For the first time, Australians have been offered another option to the gender question.

This question cannot, however, be answered on the standard online form and requires either a special login, or completion of the paper form. To do so using the paper form, two available ‘male’ or ‘female’ boxes must be left blank, and a third option may be provided in a blank space below. The special online login, on the other hand, gives users the choice to tick a third option, “other.”

The changes are being hailed as a breakthrough.

Rowena Allen, Victoria’s Gender and Sexuality Commissioner has commended the ‘other’ option.

I think it’s fantastic because it is a free box. So if we had to tick something we would never get enough boxes.”

The inadequacy of the census form itself is, however, remains as information about how Australians may go about identifying as a gender other than ‘male’ or ‘female’ is not readily available. To obtain any information on how to go about completing the census form in this way, it is necessary to make a phone call to the ABS for further information.

Given that ABS phone lines were completely overwhelmed in the weeks leading up to the census, (to the point where many callers were disconnected), accessibility issues are a serious concern and must be seriously improved for the next census.

Gender fluidity

Gender fluidity is becoming increasingly recognised by state legislatures.

On 18 August 2016, Victoria introduced a proposed bill, the Births, Deaths and Marriages Registration Amendment Bill 2016 which allows individuals to change the gender on their birth certificate, without needing to undergo sex affirmation surgery. The proposed changes would remove barriers for transgender, gender diverse and intersex Victorians who seek new birth certificates. The bill has not yet been passed.

To change the sex recorded on birth certificates under current legislation, corrective surgery is required and must be proven to the Registry of Births, Deaths and Marriages. Victorians would also be able to choose a gender diverse or non-binary descriptor, should they not identify as male or female.

The proposed legislation would also allow parents to apply to alter the sex recorded on their child’s birth registration. To do so, the child must have capacity to consent, as assessed by a doctor or psychologist, and the change must be in the best interests of the child. 

Other states and territories have passed similar legislation, including the ACT. Proposed changes have also been introduced in South Australia.  While Tasmania’s Anti-Discrimination Commissioner has recommended law reform, no legislative changes have yet been proposed.

Australians have until Friday 23 September 2016 to complete the census without the risk of incurring a fine.

Have something to add to this story? Let us know in the comments!

As the 45^th Federal Parliament gets underway, the legalisation of same-sex marriage is one of the issues dominating headlines.

It is hard to know how the matter will play out, but there is one option that was first raised by the Abbott government – and that is to hold a plebiscite. This option is being pushed by the Turnbull government, and it has attracted a lot of criticism.

If you have not been paying close attention to this debate you might be a bit confused about what a plebiscite is. That would not be at all surprising, as plebiscites are so rarely used to resolve important issues in Australia.

What is a plebiscite?

A plebiscite is a popular vote on a national question concerning any matter that does not affect the Constitution.

The result of a plebiscite is not legally binding, and so the government does not have to take any particular action once the Australian public has its say.

How does a plebiscite work?

Unlike a referendum, in which constitutional questions are decided by the electorate, the format and

procedures for a plebiscite are not defined in legislation. As a result, there are not any specific rules about how a plebiscite should be conducted.

The usual way to set up a plebiscite would be for parliament to pass an enabling bill setting out the vote’s purpose.

This bill might clarify:

• The criterion for approval, for example a simple majority or some other standard
• Whether the vote is compulsory
• Whether the question will be a simple ‘Yes’ or ‘No’ or something more complicated
• Whether campaigns for ‘Yes’ or ‘No’ will be provided with government funding
• Any actions expected of the government as a result of holding the plebiscite.

Why hold a plebiscite on same-sex marriage?

There are different ways of framing the answer to this question.

Proponents of the plebiscite generally emphasise the democratic merits of allowing the Australian public to decide the issue. Some critics of the plebiscite see it as a means of derailing or at least delaying the push for same-sex marriage.

Is it necessary that the decision to legalise same-sex marriage be left to a nationwide vote?

There is certainly no legal necessity for a nationwide vote.

Given that the Federal Parliament already has the constitutional power to enact marriage equality, there is no need for a referendum. In the December 2013 case The Commonwealth of Australia v The Australian Capital Territory, the High Court held that the marriage power in section 51(xxi) of the Constitution encompasses same-sex unions.

Considering that the result of a plebiscite has no legal force there is no reason, legally speaking, to hold a plebiscite.

Is it appropriate that the decision to legalise same-sex marriage be left to a nationwide vote?

There are no obvious advantages to holding a plebiscite on this issue, beyond vague arguments for the value of direct democracy when dealing with divisive issues of policy.

On the other hand, a number of reasons have been put forward as to why a national vote on the issue of same-sex marriage would be inappropriate.

Risk of harm to mental health

Concerns have been raised about the impact a national vote may have on the mental health of members of the LGBTQI community. For example, the Australian Psychological Society has emphasised the “significant risks to the psychological health and wellbeing of those most affected” that a public vote would present.

Cost

In 2015 the Australian Electoral Commission submitted to a Senate Committee inquiry that a plebiscite would cost an estimated $158.4 million, not including any Commonwealth funding for Yes and No campaigns.

The Australian Electoral Commissioner has stated that “[t]he costs of a stand-alone event are very comparable to a normal federal election.”

Lack of objective

There is no clear reason to hold a plebiscite.

Given the lack of legal effect of any result, a plebiscite would effectively be “no more than a formalised national opinion poll.”

An opinion poll is not required, as polling has already shown that a majority of Australians favour the introduction of same-sex marriage. Neither a ‘Yes’ or ‘No’ result would necessarily settle the question. A ‘Yes’ vote would not have to be acted upon by parliament. A ‘No’ vote would, given the trends in other Western liberal democracies, likely just delay the inevitable.

Human rights and democracy

Many of those who consider the issue from a human rights perspective argue that it is inappropriate to put such a question of equality before the law up for popular vote:

• Liberty Victoria has argued that putting a matter that is amenable to ordinary legislation to a popular vote, especially involving legislation concerning a group long subject to a history of discrimination, “is to misunderstand the nature of representative democracy” to an extent that amounts to a parliamentary dereliction of duty.

• The Australian Human Rights Commission has argued that: “it is not appropriate that the Australian population is given a vote on the legal standing of the relationships of same-sex attracted Australians any more than it would be for the Australian population to vote on the legal standing of opposite-sex attracted Australians.”

• The Centre for Comparative Constitution Studies has described plebiscites as “manifestly inappropriate in circumstances where minority rights, including the right to equality, are at issue”.

Inconsistency

Australia has only had three plebiscites in its history: two votes on conscription during World War One, and a vote on the National Anthem in 1977.

Popular votes are very rarely used to gauge public opinion on matters of ordinary legislation.

This is not surprising, given that Australia is a representative democracy and we have a Parliament with the authority to pass legislation on behalf of the population. As a result, it would be extremely unusual for this question to be put to a popular vote.

As has been pointed out many times, the 2004 amendment to the definition of ‘marriage,’ which specifically excluded same-sex marriage, was not passed by Parliament after a plebiscite.

Parliament makes a huge number of important decisions without first consulting the public. So why hold a plebiscite on this issue?

In addition to being inconsistent, it may also set an inappropriate precedent.

Parliament has the power to legislate on the issue so why aren’t they?

In 2004, subsection 5(1) of the Marriage Act 1961 was amended to specify that marriage is “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

Since then, 18 bills that deal with marriage equality or the recognition of overseas same-sex marriages have been introduced into Parliament. None have progressed past the second reading stage.

The increasing momentum for the recognition of same-sex marriage is a problem for the Coalition, as it is divided on the issue. As Katharine Murphy says, Malcolm Turnbull has many political reasons to turn to a plebiscite rather than a free vote on the question in Parliament.

As it stands, getting an enabling bill through parliament is looking less and less likely. The Greens and the Nick Xenophon Team have both announced they will not support a plebiscite, and it is likely that Labor will follow suit.

Conclusion

There is no legal necessity for a plebiscite on same-sex marriage.

Arguments for a plebiscite on the basis of direct democracy are flimsy and heavily outweighed by the disadvantages of holding a plebiscite on this specific issue. The only remaining reasons for holding a plebiscite on same-sex marriage are, therefore, political.

The government has been making it clear that without a plebiscite the prospects for the legalisation of same-sex marriage during the reign of the 45^th Parliament are zero. However, it is increasingly looking like the government could fail to gain the support it needs in Parliament to make the plebiscite happen.

Frustratingly, we may be heading back into deadlock.

What do you think? Should marriage equality be put to a nationwide vote? Or could a plebiscite on same-sex marriage set a dangerous precedent that Parliamentarians can avoid any controversial or difficult issues by sending them to a public vote? Join the discussion in the comments below!