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Why First 1000 Days Australia is making a stand for marriage equality: What we have learned through changes to marriage legislation and why it matters

Kerry Arabena

From 1989 to 1993, as a young twenty-something, I managed Pintupi Homelands Health Service, located 520 kilometres west of Alice Springs. Among other tasks, I was responsible for employing nursing staff through agencies that specialised in recruitment and orientation programs for the outback. It soon became clear that part of the orientation for these staff focused on customary practices and customary law. Messages shared during those sessions gave these health professionals the view that it was ‘culturally acceptable’ for Aboriginal girls to be pregnant when young, that ‘it was customary’.

The acceptance by health professionals in remote communities that pregnancy during pubescence was ‘cultural’ and that they could not intervene in ‘cultural business’ was a cop out then and a cop out now. While being promised in marriage during pubescence may have had specific functions in pre-colonisation times – for example, to inhibit children being born outside of a ‘right way’ kinship relationships and to ensure no children were born because of incestuous relationships – that was then, and this is now, and we have much to answer for.

When we accept pubescent pregnancies as part of the cultural norm, we set young women and children on a pathway that undermines their potential for achieving good health and wellbeing across their lives. Health professionals, because of their training, ‘normalised’ what was appropriate in terms of clinical presentations, and their authority was never interrogated, challenged or refuted. They were never held accountable for their silence, their mistakes, their actions.

Despite my age and circumstances at the time, I carry the burden of being complicit in these responses to ‘cultural’ norms by not questioning them, something I tried to rectify during my term on the National Health and Medical Research Council’s Health Advisory Committee and now through First 1000 Days Australia. Long after I left the Territory to go to Cairns, calls were made for submissions to an Inquiry into Aboriginal Customary Law. The sanctity of ‘traditional marriage’ was called into question through this process and, ultimately, a significant underpinning of Aboriginal and Torres Strait Islander people’s lives, social structures and ways of engaging in the world were changed because of legislative reform.

In 2004, the Northern Territory Parliament passed the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 that saw the removal of traditional marriage as a defence when an adult has sex with a child under the age of 16. In the media debate that followed, NT politician Alison Anderson spoke out in support of changes that resulted in the passing of the Act, which challenged key concepts in customary law legislation and afforded Aboriginal and Torres Strait Islander girls in the Territory the same rights as all other children in Australia. She was brave; and she was not alone.

Both the Aboriginal and Torres Strait Islander Commission in the Northern Territory and the Aboriginal and Torres Strait Islander Social Justice Commissioner submissions to the Inquiry into Aboriginal Customary Law advocated that the application of customary law should not contravene universal human rights and other internationally recognised covenants at all. Since then, Alison Anderson and other have continued to publicly oppose using customary law as an excuse to condone sex with minors.

There are many more of us who can now do the same because of this change in legislation and because of powerful advocacy efforts from across all States and Territories, and from an increasing number of community people. After the legislation was changed, Alison Anderson went on to call for a public education strategy to assist people in understanding their rights and obligations. While the call was made, it was inconsistently applied and not well funded. From this we learned that although legislative changes are relatively easy, public education resulting in sustained behavioural change in communities and among professionals is harder to achieve.

I fully support recognition of traditional marriages, but not sexual activity between adult men and under-age brides. In accordance with the United Nations Convention on the Rights of the Child (1990), all children should be entitled to human rights protections. Traditional marriages can, and should be, benchmarked against these standards. Many of us have come to appreciate that explicit cultural laws and practices governing marriage are like any other legal or political systems – products of certain historical, social and cultural processes that can grow, adapt, evolve and change to assist people to live a good life. Changes to the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 did not disallow traditional marriages, nor did it undermine the cultural sanctity of commitments embedded in traditional marriage. Instead we modernised our approach, cognisant of human rights laws and international covenants governing the rights of children. We benchmarked customary practices against the no harm principle, as do all mature societies committed to justice, equity and equality. In no Australian court of law are there circumstances, cultural or other, where children can be expected to engage in sexual acts with adults – regardless of recognition of marriage and its entitlements.

In our communities, we made a stand for all parties in marriage to be treated equally, benchmarked against human rights and other international conventions. Brave individuals challenged the status quo, asserting the rights of children for a good life, free from harm. A submission process was introduced so views could be expressed and heard, and, after the legislation was changed, a public education campaign about the changes to customary law and traditional marriages was instigated. We changed the Act to protect children.

We also failed to support professionals and individuals within communities who are in a position to report abuse against children, but are themselves at risk for fear of payback, retribution and threats to livelihoods. It is not perfect, but it is a path of change to ensuring that no child experiences harm in the context of marriage, and that our institution of marriage has the chance to accommodate conventions recognising the rights of children now and into the future.

We often talk about breaking the cycle of trauma in a generation, and we might now need to consider new social supports to achieve this going forward. Traditional marriages are usually founded on opposite sex couplings. However, as explained in our Inaugural Statement on what children can rightfully expect, the First 1000 Days Australia Council has explicitly stated in the 10th principle that every child has the right to be born into families who ‘Have the capacity to celebrate their children and offer them ceremonies, rituals, language, songs, stories and environments that strengthen their resilience, encourage their growth and support their choice of identity’ – including their sexual orientation.

There is mounting evidence that the Australian Government’s decision to run a postal vote for marriage equality is taking its toll on our lesbian, gay, bisexual, transgender and intersex (LGBTI) community, with counselling services reporting significant spikes in calls from those who have been adversely affected by the debate on same-sex marriage. Across our nation, there are men and women who are the subject of conversation topics that aren’t positive, and bring into question their capabilities as loving partners, parents and as contributing members of our nation.

While Prime Minister Turnbull said that most Australians were bringing ‘respectful views’ to the discussion, it is still a discussion that ultimately has its roots deep in conceptual and normative views of a domain of human sexuality that privileges celibacy, procreation and marriage – any deviation from which supposedly challenges our nation’s social mores, morality and ethics. I don’t know if this is entirely true: Argentina, Belgium, Brazil, Canada, Colombia, Denmark, Finland, France, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, United Kingdom, United States of America and Uruguay seem to have come through the introduction of same-sex laws relatively unscathed by the experience. Israel and Armenia recognise same sex marriages performed outside the country, and Taiwan is poised to become the first country in Asia to legalise same-sex marriages if the Civil Code is amended. What is also becoming increasingly clear in these countries is that there’s a direct link between the introduction of marriage equality laws and a reduction in the number of suicide attempts among those young people who identify as LGBTI.

In February this year, the Journal of the American Medical Association reported that implementation of same-sex marriage policies was associated with a significant decrease in the proportion of high school students attempting suicide in the 32 States that had implemented these policies by 1 January 2015, relative to the 15 States that did not. Furthermore, the study found that the positive effects of legislation persisted two years after it was passed, suggesting that social and political backlash does not have the effect of worsening mental health outcomes during this time. The study concluded that the 7 per cent reduction in adolescent suicide attempts suggest that same-sex marriage policies may contribute to the Healthy People 2020 goal of reducing adolescent suicide attempts by 10 per cent. Considering that adolescents constitute the largest number of our First People’s population, and that many of our young people are at the forefront of the experience of discrimination, stigma and structural barriers that prohibit their participation in Australian society, there are many reasons for us to consider marriage equality as important for the health and wellbeing of our people, and especially the children in our care.

Make no mistake, the powerful impact of discrimination, stigma and social exclusion on the health and wellbeing of us as a population is magnified for young, sexually diverse people in our communities. Young Australians who identify as LGBTI experience significantly higher rates of suicide than those who identify as heterosexual. They also experience higher levels of depression, anxiety and general psychological distress, and often report greater levels of sexual vulnerability throughout their early lives. Significantly, gender variant and sexually diverse Aboriginal and Torres Strait Islander people have reported being the subjects of poorly designed and implemented policies constituting a form of structural stigma because they label some of our citizens as ‘sexual minorities’ and treat them differently, thereby denying them the legal, financial, health and other benefits associated with marriage.

It seems that the changes to the institution of marriage can have a positive impact on our communities in the following ways:

First 1000 Days Australia is committed to social justice and inclusion and we respect the rights of all people, regardless of sexual orientation, religious belief, age, gender, ability, lifestyle choice, cultural background or economic circumstance to live with dignity and safety and to enjoy healthy relationships in all their diversity. We believe that healthy, safe and respectful relationships are essential for the wellbeing of children, adults, couples, families and communities. Relationships Australia made a statement – based on its experience and skills in delivering services to Australians for more than 60 years – that promotes individual and family wellbeing, including for people who are in same-sex relationships, their children and extended families. An alliance led by RA supports the right of all Australians to access marriage as a civil institution with their partner of choice, irrespective of gender or sexual orientation.

For the sake of all our peoples, First 1000 Days Australia joins with them because we:

  • Believe that every Australian should have the same rights under law, including the right to make the choice to marry or not
  • Support the removal of legislative discrimination of people based on their sex, sexuality or gender identity
  • Recognise that freedom of sexuality and choice of partner are fundamental human rights
  • Recognise that marriage equality is important to the physical and mental wellbeing of same-sex attracted people, their children and extended families
  • Support policy and action that promotes the acceptance and the celebration of healthy, safe and respectful relationships in all their diversity.

This statement is not new, nor different to those that have been made for a long time in our communities.

A similar sentiment can be found, for example, in the First National Aboriginal and Torres Strait Islander Sexual Health Strategy. The timelessness of this strategy is worth reflecting on over the coming weeks, when all Australians get to vote and show their support for, or denial of, marriage equality. Sexual health, according to the Strategy, includes the following personal rights:

  • To enjoy and control sexual and reproductive behaviour in accordance with cultural values, kinship practices and individual ethics
  • To have no fear, shame, guilt and myths about choice of sexuality and sexual relationships
  • To be free of diseases that are treatable or preventable, or both, and that may interfere with an individual’s sexual life
  • To not be bound by practices that may interfere with an individual’s sexual health and emotional wellbeing.

Sexual health is the right of all people, regardless of their income, age, ethnic background, language, gender, religion, sexual orientation, literacy level, disability or geographic location. It contributes to the enjoyment of life. Sexual health is achieved through the ability to make informed choices about healthy behaviours and lifestyles, enjoying and expressing sexuality without guilt or shame in fulfilling relationships, controlling our own fertility, and avoiding behaviours that damage our overall health – and for men to understand their role in protecting their unborn babies.

Just as we sought to change legislation to protect child brides from harm, so too can we support a positive outcome for the marriage equality vote to bring about better mental health outcomes for our LGBTI community, and the children they love, cherish and care for.

Vote Yes