ࡱ> WYX` RBbjbjss 2X 5 ;rrrr    T84> [%J$$$$$$$$&h )*% """%r`%>$>$>$"F  $>$"$>$>$  >$  \!*#^>$$+%0[%>$7)#7)>$7) >$>$<%%($[%""""> > > BD> > > B, t JrrrZtJ Equality for Same Sex Couples: At what cost? Submission to the HREOC National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits. The focus of gay and lesbian rights in Australia has undergone a change in direction. After three decades of social and political campaigning for equality of rights for individual gays and lesbians, attention has now turned to the issue of recognition of same sex relationships. At the heart of the campaign for recognition is the demand for equality, and with it access to the legal and economic benefits afforded opposite sex couples. The quest for equality, however, has its costs and the overall gains achieved may be less than first thought when the relative standards of many same sex couples are measured. The purpose of this submission is to demonstrate that Federal legislative recognition of same sex couples will have serious financial consequences for gays and lesbians on low incomes, particularly gay men and lesbians living with HIV/AIDS who have a financial dependence on social security benefits and concessions. This will inevitably place further pressures on the limited resources of community-based organisations that provide financial and other support to gays and lesbians in financial need. Consideration must be given to the impact of federal legislative recognition on same sex couples where one or both are living with HIV/AIDS. It is submitted that, although gays and lesbians are distributed across all levels of income and wealth, there is a substantial proportion of gays and lesbians found in lower income brackets. Discrimination in the workplace, occupational sorting and the effect of illness on gays and lesbians living with HIV/AIDS are all factors that contribute to lower levels of income. The expense of medical therapies for those living with HIV/AIDS exacerbates the dilemma, creating further financial difficulties, leading to many living below the poverty line. Ultimately, it will be those who already suffer the effects of social and economic discrimination who will be disadvantaged even more. The issue that will ultimately need to be confronted is to what degree the resources of the gay and lesbian community will be able to handle increasing demand for financial and other support. The shift in the focus of the campaign for gay and lesbian rights to recognition of same sex couples has been called the third big civil rights battle after decriminalisation and the AIDS backlash. Will the casualties of this battle be those already among the most oppressed in our society? The dominant theme of arguments advocating recognition of same sex couples has been the cost to individual couples caused by the denial of spousal benefits and entitlements commonly available to opposite sex couples under superannuation and tax laws. However, Jenni Millbank from the Sydney University Faculty of Law , in evidence to the 1996 Senate Legal and Constitutional Reference Committee, raised the issue of balancing what was being gained by same sex couples through recognition in Federal legislation against the losses that would be suffered: ... we need to examine really closely the difference between formal equality and substantive equality. My question with any piece of legislation such as this is: does it improve the quality of life for the group that is targeted? So the question is: does it improve the quality of life of lesbians and gays in Australia? Does it make life easier? Does it reduce impoverishment? Does it reduce discrimination? If formal equality does not bring about substantive equality, then it is not a useful exercise and may even be a negative exercise because there is the comeback of, Well, you have equality now; what are you still complaining about? Millbank argued that real equality would only be achieved if the rights and benefits gained outweighed the losses: If there were a change in Federal law, it would remove a significant portion of welfare benefits by presuming economic dependency between same sex couples. The difficulty is that the measurement of any potential losses is difficult, if not impossible, because of the lack of reliable data in this area. This submission contends that statistical data available for gays and lesbians living with HIV/AIDS indicates that there will be a number of same sex couples who will suffer real financial hardship if their relationship is recognised for the purpose of social security. Same sex couples where one or both partners are living with HIV/AIDS face not only the pressures in the workplace faced by most gay men and lesbians, they also face the added discrimination faced by PLWHA, disruptions to employment resulting from illness or the effects of anti viral medications, and the high cost of medical treatment and medications. At the end of 2003, the total number of HIV infections diagnosed in Australia was estimated to be 20,580 and an estimated 13,630 people were living with HIV infection. It is estimated that over 85% of those with HIV or AIDS in Australia are gay men. And although HIV/AIDS is seen as being primarily a problem for gay men, it is estimated that between 0.5% and 1% of people living with HIV/AIDS are lesbian. Very little reliable statistical information is available on the social and economic position of PLWHA. The most comprehensive studies yet undertaken into the health, social and economic wellbeing of PLWHA in Australia have been undertaken by the Australian Research Centre in Sex, Health and Society at La Trobe University. By considering the findings of these surveys a clearer picture of the financial hardship suffered by PLWHA emerges. HIV Futures 3 was the third in an annual study of the health and social aspects of HIV/AIDS in Australia, surveying 1000 PLWHA. This survey found that almost one third (31.3%) of PLWHA in Australia live below the poverty line. In HIV Futures 4, released in October 2004, over half of PLWHA (54.6%) reported relying on benefits, pensions and concessions from the Department of Social Security as their primary source of income, while 37.3% rely on wages or salary from employment and 4.7% receive superannuation benefits. Reliance is placed on partners, friends and family for financial support by 1.3% of PLWHA. Overall, the median annual income for PLWHA is $16,640. The mean annual income for all adults in the workforce is $42,811.60. Of those PLWHA who are on social security benefits or pensions, 49.3% live with on an income below the poverty line, whereas only 2.9% of those employed earn below the poverty line. Low income, including that from benefits or pensions, is not, however, the only cause of poverty for PLWHA. The high cost of medical treatments and prescribed medications was rated by respondents as being very difficult to meet. For those living below the poverty line, 42% had difficulty in meeting co-payments for HIV/AIDS medications, while 51.3% had difficulty paying the cost of medical services. The situation is not as difficult generally for those living with HIV/AIDS who have an income above the poverty line. The cost of co-payments for HIV/AIDS medications was found difficult to meet by 37.7% of PLWHA who have incomes above the poverty line, and 61.2% had difficulty meeting the cost of medical services. Low income and high expenditure on necessary medical costs combine with discrimination by rental agents and landlords to make housing costs a difficulty for 63.5% of PLWHA, with 30.3% relying on Government rental assistance. For PLWHA, an average of $50.90 per week is spent on medications and therapies, although these costs range from $0 for some, up to $421 per week for others. The level of usage of community based support and resource organisations is indicative of the degree of financial hardship faced by PLWHA. According to the HIV Futures 4 survey, 25.4% of respondents who had an income below the poverty line had received financial assistance from HIV/AIDS organisations and 6% had obtained financial assistance from other community organisations. Non-financial assistance in the form of counselling, legal advice, peer support, treatment advice, housing assistance and respite care all had a high level of demand from those living below the poverty line. The main forms of non-financial support sought by those living above the poverty line were counselling, employment assistance, legal advice, and treatments advice and support, although 27.6% of PLWHA living above the poverty line still found a need to seek financial assistance from HIV/AIDS organisations. According to HIV Futures 4, 32.7% of gay men living with HIV/AIDS live with their partner. Of these, an estimated 40.5% live with a partner that is also living with HIV/AIDS. This equates to about 4,800 PLWHA in cohabiting same sex relationships. The sharing of financial resources by partners in a same sex relationship is seen by many as necessary for survival, with a combined median annual income for same sex couples of $26,000, and a mean annual income of $28,270. Those same sex couples on a low income, in particular where one or both are living with HIV/AIDS, will be the ones who will most likely suffer the financial consequences of same sex couples being recognised for the purpose of social security payments. The amount of pension, benefit or other income support that a claimant is paid is determined in part by whether they are single or part of a couple. In the application of the assets and income test to the member of a recognised relationship, levels of payment are, in part, determined by the income and assets of their spouse. Of greatest concern, however, is the financial impact on same sex couples where both are reliant on either a social security pension or benefit. For example, recognition of same sex relationships would mean that a couple, where both were living with HIV/AIDS and on a Disability Support Pension, would have their payments adjusted from receiving two payments at the rate paid to singles to payment at the rate paid to members of a couple, a reduction from $499.70 per fortnight per person to $417.20 per fortnight each, a loss of over $80 per fortnight. Almost 60% of PLWHA who receive government pensions or benefits are currently living below the poverty line and financial pooling is done by over 25% PLWHA in same sex relationships as the only means of protection from extreme financial hardship. Some compensation would come with the application of the family rate for the Pharmaceutical Benefits Scheme (PBS) safety net, with the cost of medications reduced to a nominal amount when expenditure on prescription medications reaches a set limit. It is estimated that there are about 2,750 same sex couples where one or both are living with HIV/AIDS, with about 750 who depend on pooled resources to survive. It is also estimated that over half of these have incomes below the poverty line. A reduction of $70 or 18% of income will foreseeably create greater difficulties for those below the poverty line, but it is also likely to increase the number of those living below the poverty line. Consequently, extra pressure will be placed on HIV/AIDS organisations and other community groups. The impact on same sex couples with a low income, particularly those living with HIV/AIDS, has the potential to cause severe hardship for many couples. Many gays and lesbians are faced with discrimination on a daily basis. It impacts on where they work, how much they earn and, ultimately, their quality of life. But removing the discriminatory barriers to equal rights for gays and lesbians does not guarantee equality for all. This paper shows that the drive for equality will cause the further oppression of many gays and lesbians in same sex relationships. However, the purpose of this paper is not to argue against the recognition of same sex relationships. While the realisation of true equality will not come with the recognition of same sex relationships by Governments, it will provide the legal and social acknowledgement that forms the bases of human rights. Equality for all personal relationships must be based on the principles of social justice and fairness, not economic rationalism. Gays and lesbians should not be seeking recognition only in those areas of law where there are financial benefits to be gained, even if this means that there will be financial hardship caused. The inevitable outcome of Federal legislative recognition will be an increased burden falling on community based support and resource groups, particularly HIV/AIDS support organisations, as an increasing number of gays and lesbians in same sex relationships suffer more extreme financial hardship caused by loss or reduction in benefits paid. It is vital that this impact be understood to allow for strategic planning by community groups to prevent them being overwhelmed and for appropriate funding to be sought. Statistically, the number of people who will be placed in positions of financial hardship is low. But it is the fact that these numbers represent real people that makes this issue important. Advocates of gay and lesbian rights have argued for equality despite being a minority group within the population. It is necessary to realise that care must be taken to ameliorate the impact of equality on those minority groups within the gay and lesbian community itself. Geoff Holland Lecturer Faculty of Law, University of Technology, Sydney Endnotes      Rodney Ford, Getting into Marriage: Two Steps forward, One Step Back, BrotherSister April 29 1999 as cited in Wilett, G, Living Out Loud, Allen & Unwin, Sydney, 2000, at p248  Hansard, Senate Legal and Constitutional Reference Committee, August 7 1996, pp 138 - 139  ibid.  HIV Futures 3: The Living with HIV Program at The Australian Research Centre in Sex, Health and Society, La Trobe University, Melbourne, 2002, p. xxvii, available at http://www.latrobe.edu.au/hiv-futures/Futures%203.pdf, pp. 109 - 110  Commonwealth Department of Health and Aging  HIV Futures 3  HIV Futures 3  As measured by the Henderson Quarterly Poverty Line Report published by the Institute of Applied Economics and Social research. The current measure is $278.04 p.w. for a single and 371.94 for a couple..  HIV Futures 4: The Living with HIV Program at The Australian Research Centre in Sex, Health and Society, La Trobe University, Melbourne, 2004, p. 63  Australian Bureau of Statistics (2002)  HIV Futures 3, p 105, and see Table 72.  HIV Futures 3, pp 101 - 103, 110  HIV Futures 4, p 64  HIV Futures 3, p. 102  HIV Futures 4, pp. 68 - 69  ibid.  HIV Futures 4, p. 68.  HIV Futures 4, p 55.  HIV Futures 3, pp. 85 - 89.  HIV Futures 3, p.103.  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