Whither gay marriage Down Under?

It has not been a good week for LGBT rights. On Tuesday, India’s Supreme Court reinstated the country’s criminal sanctions against same sex relationships, effectively criminalizing the LGBT community. Today, Australia’s High Court decided unanimously that state legislation permitting same-sex marriage violates the Australian constitution.

The case arose when the Australian federal government took the Australian Capital Territory (ACT) to court over legislation permitting same sex marriage. The ACT passed a bill in October making the territory the first part of Australia to legalise same-sex weddings. The Australian government argued that the federal Marriage Act defines marriage as solely between a man and a woman, and that Australian states cannot override that definition.

In a unanimous decision, the High Court of Australia agreed.  It ruled that only Australia’s federal Parliament had the power to define marriage, and that it did so unequivocally through the Marriage Act. It is therefore only within the power of Australia’s federal Parliament to change that definition.

You can read the High Court’s decision here:


The decision is certainly a set back in the march toward same sex marriage in Australia. Despite the fact that more than two-thirds of Australians favour same-sex marriage, there seems to be little interest from Prime Minister Tony Abbott’s government to move forward with change.

At a personal level, the decision is devastating for the 27 same-sex couples who were married in the ACT since last October. “It sends a message that the love of a same-sex couple is a lesser kind of love, is second-rate.” said an email release from GetUp Australia. “As an Australian married, there is no way that I’ll return to Australia and not have my marriage recognized” said David Brown, a Canadian permanent resident who was married to his Canadian spouse in Toronto.

For the Canadian LGBT community, equality seems to have arrived swiftly and effortlessly in retrospect. In many parts of the world, this is clearly not the case. The struggle for equality requires a mix of strategies - legal, political, and above all personal. In Australia as in India and the United States, public support for gay marriage has been on a steady increase. The more that this trend continues, the more that success will be inevitable, eventually.

India’s body blow

Anyone who thinks that the path toward non-discrimination toward the LGBT community is smooth and inevitable should study the Supreme Court of India’s decision yesterday to uphold laws criminalizing same-sex relations. The Court overturned a historic 2009 ruling by the High Court of New Delhi which ruled that such laws are unconstitutional. The decision can be found here:


“This decision is a body blow to people’s rights to equality, privacy and dignity,” said G Ananthapadmanabhan, Chief Executive, Amnesty International India.

In fact, at a time when increasing numbers of countries are recognizing the importance of protecting the LGBT community from discrimination and recognizing same-sex marriages, there are other countries in which the trend is heading in the opposite direction. India now joins Russia and Nigeria among countries which have set back LGBT rights to varying degrees in 2013.  While the Supreme Court noted that people were rarely prosecuted under the law – at least not publicly – it was widely acknowledged by all parties in the case that these laws provided an important foundation for the harassment of the LGBT community in India from law enforcement officials, members of the public, and their own families. It has led to many successful asylum claims from members of the Indian LGBT community in Canada and other countries.

There is irony in the fact that laws criminalizing homosexuality are holdovers from India’s British colonial past, and that Britain has not only moved past criminalization, but will begin recognizing same-sex marriages in 2014.

The Supreme Court stated that it is up to Parliament to repeal these laws, and the Indian government has expressed some support for doing so. However, with general elections scheduled to take place by next May and the socially conservative Hindu nationalist opposition gathering momentum, such moves are unlikely.




Health care restored for refugees

Since 1957, the federal government’s Interim Federal Health program has provided temporary coverage of medical costs for refugee claimants in Canada while they wait for coverage under provincial programs. The program is based on the recognition that refugees are forced to flee and should not be deprived of medical care while they await a decision on their application for protection. It offered basic coverage, mostly for assessment, diagnosis and treatment of serious conditions.

In June, 2012, the federal government implemented severe cuts to the IFH program, dividing refugee claimants into various categories with varying amounts of care. Prescription medication was completely cut for all refugee claimants, even for cancer patients, with the exception of diseases that could pose a danger to the public. Psychological support services were also completely cut for all refugee claimants, despite the fact that many refugees are deeply traumatized by their experiences.

The cuts were almost universally condemned by health care professional groups and religious communities. Litigation was commenced by the Canadian Association of Refugee Lawyers in an attempt to have the government’s cuts declared unconstitutional.

Yesterday, the Ontario government demonstrated its commitment to refugees by announcing that it would step in to reinstate access to health care for refugee claimants. Effective January 1st, 2014, the Ontario government will provide refugee claimants with primary care and urgent hospital services, as well as medication.

This decision is significant given that Ontario is home to more than half of Canada’s refugee claimants.  It is also smart government policy because it goes beyond compassion: studies have shown that cuts to refugee health care programs simply shift such costs to other provincial programs, such as social support services and community health care centres. Refugees with serious health conditions end up in hospital emergency departments which are more expensive than preventative measures. Ontario should be applauded for this move.