Sunday, 28 June 2015

"The nature of injustice is that we may not always see it in our own times": Justice Kennedy, US Supreme Court

Unless you have been living under a rock, and have not seen how the internet has gone colour crazy in the last 24 hours, the US Supreme Court has ruled 5-4 that gay marriage is legal throughout the US and that the right to marry, including for same sex couples is a human right. The majority judgment, in Obergefell v Hodges was delivered by Justice Kennedy. The judgment is of a transcendent nature, and makes me proud to be a lawyer. Here are extracts:

From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.
The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. 2 Li Chi: Book of Rites 266 (C. Chai & W. Chai eds., J. Legge transl. 1967). This wisdom was echoed centuries later and half a world away by Cicero, who wrote, "The first bond of society is marriage; next, children; and then the family." See De Officiis 57 (W. Miller transl. 1913). There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.
That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held and continues to be held in good faith by reasonable and sincere people here and throughout the world.
The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners' claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners' contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect and need for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.


Recounting the circumstances of three of these cases illustrates the urgency of the petitioners' cause from their perspective. Petitioner James Obergefell, a plaintiff in the Ohio case, met John Arthur over two decades ago. They fell in love and started a life together, establishing a lasting, committed relation. In 2011, however, Arthur was diagnosed with amyotrophic lateral sclerosis, or ALS. This debilitating disease is progressive, with no known cure. Two years ago, Obergefell and Arthur decided to commit to one another, resolving to marry before Arthur died. To fulfill their mutual promise, they traveled from Ohio to Maryland, where same-sex marriage was legal. It was difficult for Arthur to move, and so the couple were wed inside a medical transport plane as it remained on the tarmac in Baltimore. Three months later, Arthur died. Ohio law does not permit Obergefell to be listed as the surviving spouse on Arthur's death certificate. By statute, they must remain strangers even in death, a state-imposed separation Obergefell deems "hurtful for the rest of time." App. in No. 14 556 etc., p. 38. He brought suit to be shown as the surviving spouse on Arthur's death certificate.
April DeBoer and Jayne Rowse are co-plaintiffs in the case from Michigan. They celebrated a commitment ceremony to honor their permanent relation in 2007. They both work as nurses, DeBoer in a neonatal unit and Rowse in an emergency unit. In 2009, DeBoer and Rowse fostered and then adopted a baby boy. Later that same year, they welcomed another son into their family. The new baby, born prematurely and abandoned by his biological mother, required around-the-clock care. The next year, a baby girl with special needs joined their family. Michigan, however, permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent. If an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt. This couple seeks relief from the continuing uncertainty their unmarried status creates in their lives.
Army Reserve Sergeant First Class Ijpe DeKoe and his partner Thomas Kostura, co-plaintiffs in the Tennessee case, fell in love. In 2011, DeKoe received orders to deploy to Afghanistan. Before leaving, he and Kostura married in New York. A week later, DeKoe began his deployment, which lasted for almost a year. When he returned, the two settled in Tennessee, where DeKoe works full-time for the Army Reserve. Their lawful marriage is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines. DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden....


The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution even as confined to opposite-sex relations has evolved over time.
For example, marriage was once viewed as an arrangement by the couple's parents based on political, religious, and financial concerns; but by the time of the Nation's founding it was understood to be a voluntary contract between a man and a woman. See N. Cott, Public Vows: A History of Marriage and the Nation 9 17 (2000); S. Coontz, Marriage, A History 15 16 (2005). As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. See 1 W. Blackstone, Commentaries on the Laws of England 430 (1765). As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. See Brief for Historians of Marriage et al. as Amici Curiae 16 19. These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. Hartog, Man & Wife in America: A History (2000).
These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.
This dynamic can be seen in the Nation's experiences with the rights of gays and lesbians. Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. Same-sex intimacy remained a crime in many States. Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate. See Brief for Organization of American Historians as Amicus Curiae 5 28.
For much of the 20th century, moreover, homosexuality was treated as an illness. When the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered to until 1973. See Position Statement on Homosexuality and Civil Rights, 1973, in 131 Am. J. Psychiatry 497 (1974). Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable. See Brief for American Psychological Association et al. as Amici Curiae 7 17.
In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance. As a result, questions about the rights of gays and lesbians soon reached the courts, where the issue could be discussed in the formal discourse of the law...


The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed.
 ...

A first premise of the Court's relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12; see also Zablocki, supra, at 384 (observing Loving held "the right to marry is of fundamental importance for all individuals"). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. Indeed, the Court has noted it would be contradictory "to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society." Zablocki, supra, at 386.

Choices about marriage shape an individual's destiny. As the Supreme Judicial Court of Massachusetts has explained, because "it fulfils yearnings for security, safe haven, and connection that express our common human ity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life's momentous acts of self-definition." Goodridge, 440 Mass., at 322, 798 N. E. 2d, at 955.
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. See Windsor, 570 U. S., at ___ ___ (slip op., at 22 23). There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving, supra, at 12 ("[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State").
A second principle in this Court's jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception. 381 U. S., at 485. Suggesting that marriage is a right "older than the Bill of Rights," Griswold described marriage this way:
"Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. " Id., at 486.
And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U. S., at 95 96. The right to marry thus dignifies couples who "wish to define themselves by their commitment to each other." Windsor, supra, at ___ (slip op., at 14). Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.
As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made same-sex intimacy a criminal act. And it acknowledged that "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring." 539 U. S., at 567. But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See Piercev. Society of Sisters, 268 U. S. 510 (1925) ; Meyer, 262 U. S., at 399. The Court has recognized these connections by describing the varied rights as a unified whole: "[T]he right to 'marry, establish a home and bring up children' is a central part of the liberty protected by the Due Process Clause." Zablocki, 434 U. S., at 384 (quoting Meyer, supra, at 399). Under the laws of the several States, some of marriage's protections for children and families are material. But marriage also confers more profound benefits. By giving recognition and legal structure to their parents' relationship, marriage allows children "to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Windsor, supra, at ___ (slip op., at 23). Marriage also affords the permanency and stability important to children's best interests. See Brief for Scholars of the Constitutional Rights of Children as Amici Curiae 22 27.
As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. See Brief for Gary J. Gates as Amicus Curiae 4. Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents, see id., at 5. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___ (slip op., at 23).
That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one.
Fourth and finally, this Court's cases and the Nation's traditions make clear that marriage is a keystone of our social order. Alexis de Tocqueville recognized this truth on his travels through the United States almost two centuries ago:
"There is certainly no country in the world where the tie of marriage is so much respected as in America . . . [W]hen the American retires from the turmoil of public life to the bosom of his family, he finds in it the image of order and of peace . . . . [H]e afterwards carries [that image] with him into public affairs." 1 Democracy in America 309 (H. Reeve transl., rev. ed. 1990).

In Maynardv. Hill, 125 U. S. 190, 211 (1888) , the Court echoed de Tocqueville, explaining that marriage is "the foundation of the family and of society, without which there would be neither civilization nor progress." Marriage, the Maynard Court said, has long been " 'a great public institution, giving character to our whole civil polity.' " Id., at 213. This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential. See generally N. Cott, Public Vows. Marriage remains a building block of our national community.
For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules. See Brief for United States as Amicus Curiae 6 9; Brief for American Bar Association as Amicus Curiae 8 29. Valid marriage under state law is also a significant status for over a thousand provisions of federal law. See Windsor, 570 U. S., at ___ ___ (slip op., at 15 16). The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.
There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation's society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.
...
The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment's guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. See M. L. B., 519 U. S., at 120 121; id., at 128 129 (Kennedy, J., concurring in judgment); Beardenv. Georgia, 461 U. S. 660, 665 (1983) . This interrelation of the two principles furthers our understanding of what freedom is and must become.

...

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. 

...
the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.

...

Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.
The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple's decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so. See Kitchenv. Herbert, 755 F. 3d 1193, 1223 (CA1Add hyphens between digits014) ("[I]t is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples"). The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

...

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.



Monday, 15 June 2015

Epetition to encourage Brisbane City Council to engage with LGBTI people

An epetition has called for the setting up of an LGBTI advisory committee in Brisbane so that Brisbane City Council is fully engaged with the LGBTI community. Brisbane is by far and away the largest local government in Australia. To give an idea of the scale of the Council, its last budget was $2.9 billion.

The reasons for the epetition are obvious, in the words of the epetition, echoing what the Human Rights Commission has said about the need for government and society to engage with the LGBTI community, and end State sanctioned discrimination:

There is a mass of data, including Australian Bureau of Statistics figures and university studies, showing the prejudice and discrimination experienced by LGBTI people leads to far worse health and social outcomes. This includes higher rates of anxiety, depression and other mental health conditions, having no family members for support, homelessness, chronic health conditions and, alarmingly, a four times higher rate of suicide attempts. All levels of government have a responsibility to address this. However, as Council is the level of government most connected to the communities that impacted people reside in, Council should implement an LGBTI Advisory Committee as a matter of urgency. This follows numerous other Australian Councils that already have LGBTI Advisory Committees or similar. Council wants all residents to be included in civic life, as demonstrated by the Living in Brisbane 2026 plan. However, some groups face barriers to inclusion. For example, many LGBTI residents face discrimination, marginalisation, exclusion and non-representation. This prevents them from engaging fully in civic life. Brisbane City Council has recognised multiple other disadvantaged groups by creating Council boards, committees, roundtables or advisory groups to address the issues unique to each group. The Federal Department of Health, and mental health agencies beyondblue and headspace, address the worst outcomes for LGBTI people by running LGBTI-specific programs.
The epetition is open until 8 September. I have signed it, as I believe that what is contained in it is required. The epetition is open to "permanent residents of Australia and Brisbane residents or Brisbane city ratepayers."

Call to get rid of the unequal age of consent in Queensland

Human Rights Commissioner Tim Wilson has called for an end to the unequal age of consent in Queensland. Essentially anal sex is OK from the age of 18, whereas the age of consent otherwise is the age of 16. The punishment is up to 14 years imprisonment.

Commissioner Wilson stated in his landmark report about State sanctioned LGBTI discrimination in Australia:


"Concern was raised throughout the consultation process that while the sodomy law does not directly target young people on the basis of their sexual orientation, in practice the law discriminates on the basis of sexual orientation. Participants observed that unequal age of consent based on different sexual activity had disproportionate and adverse impacts on gay men in Queensland.
A particular fear was raised regarding the safety and wellbeing of young same-sex attracted men under the age of18. One medical practitioner outlined in the consultations that they had heard of other health workers who discouraged gay males under the age of 18 from disclosing their sexual activity if it involved anal sex because the age of consent laws would require the medical practitioners to treat their behaviour as
a criminal matter. The consequence of the law is that young gay men were less likely to be able to then get proper sexual health advice.
A number of submissions and meeting participants observed that the unequal age of consent law for sodomy prevented access to appropriate and accurate information and support on mental health and sexual health for young gay men between 16 and 18 years of age.
These observations were of significant importance in consideration of the higher risk rate for young gay men to contract HIV in Queensland. In 2011, Queensland reported the highest rise nationally in new notifications of HIV in this target group."

Part of the policy of the new Labor government in Queensland is to ensure an equal age of consent. Hopefully this change will be enacted soon.

Are we finally going to get rid of gay panic defence?

There have been three developments in recent times concerning gay panic defence- you know, I thought he was coming on to me, so I panicked and killed him. Isn't it funny that we never see women kill at the same rate or claim the same defence?

The defence is currently open only in Queensland and South Australia. In Queensland, armed with his research as to the appalling level of violence against LGBTI people (echoed incidentally in the Human Rights Commission report last week), Professor Alan Berman and I and others (including Father Paul Kelly in whose Maryborough churchyard one of the men was killed), lobbied then Labor Attorneys Cameron Dick and Paul Lucas to scrap the defence of provocation to murder. The upshot was that after a panel of experts were appointed, the defence was partially removed. The chair of the committee, retired judge John Jerrard QC called for more to be done.

When Jarrod Bleijie became Attorney under the Newman government, he resolved not to get rid of gay panic defence.

With the election of Labor in Queensland, there is now a mandate to get rid of gay panic defence. The LNP has also reversed position, now saying that it offers bipartisan support to get rid of the defence.

In South Australia, the message is more depressing. The South Australian Law Society has called for gay panic defence to remain there, seemingly on the basis that if it ain't broke, don't fix it.

The two other developments were the call by Human Rights Commissioner Tim Wilson to abolish gay panic defence in Queensland and South Australia, and the High Court judgment in Lindsay.

Mr Lindsay, from South Australia, appealed his conviction of murder on the basis of provocation- essentially gay panic defence. He was successful in his appeal to the High Court, resulting in the matter going back to South Australian courts to consider whether Lindsay should be convicted of manslaughter instead.

The facts in Lindsay demonstrate why gay panic defence must go:

  1. The appellant, an Aboriginal man, was aged 28 years or thereabouts at the date of the offence. On the evening of 31 March 2011, he, his de facto wife, Melissa, and a friend, Nicholas Hayes, visited the Hallett Cove Tavern. There they encountered the deceased, a Caucasian male who was previously unknown to them. The deceased had been drinking at the Tavern with his partner, Fiona Ninos. The two had quarrelled and she had gone home without him. The appellant and his party and the deceased all drank together and, in the early hours of 1 April 2011, they went to the appellant's Hallett Cove home to continue drinking.
  2. The appellant and Melissa had been living together since before the birth of their son, Ethan, who was then nine years old. They shared their home with two boarders: Luke Hutchings and Brigette Mildwaters. When the group arrived at the Hallett Cove home on the morning of 1 April 2011, Luke and Brigette were there, as were the appellant's two younger sisters, Ashleigh and Tahlia, and his cousin, Michael. The group, with the exception of Michael, who was asleep, commenced drinking together.
  3. At around 2:00am, Fiona Ninos rang the deceased's mobile telephone. The appellant spoke to her and invited her to join them. Fiona took up the invitation. After her arrival, the appellant showed her around the home. The deceased was seated at the kitchen bench where he was socialising with the group. Fiona stayed for around 45 minutes to an hour. During this time she did not see any aggressive behaviour. The mood of the group was good, they were drinking pre-mixed cans of bourbon and appeared happy and relaxed. Nonetheless, Fiona was annoyed with the deceased's decision to stay at the Tavern and to go out drinking with strangers and she told him so in heated terms. The appellant suggested that the deceased could stay the night and he offered to bring him home in the morning. Fiona caught a taxi home.
  4. Following Fiona's departure, there were two incidents, which together gave rise to the trial judge's decision to leave provocation for the jury's consideration. The first incident took place when the group was outside on the patio. The appellant was seated and the deceased straddled him, moving his hips backwards and forwards in a sexually suggestive manner. The appellant told the deceased that he was not gay and not to do "stuff like that" or he would hit him. Melissa also remonstrated with the deceased. The deceased apologised and the appellant told him "That's okay, just don't go doing stuff like that".
  5. Peek J summarised the evidence of the patio incident, observing that, whether the deceased had intended it or not, there was substantial evidence that the incident had caused upset not only to the appellant but, importantly, also to his de facto wife in his presence. His Honour emphasised that the deceased had been told very firmly not to do it again.
  6. The second incident occurred in the family room. The deceased was tired and the appellant told him that he could sleep in the spare room. The deceased said that he did not want to sleep up there by himself; he wanted the appellant in there with him. He said that he would pay the appellant for sex. The appellant replied "What did you say cunt?". The deceased repeated his proposition, offering to pay the appellant several hundred dollars. The appellant punched the deceased, who fell to the floor. The appellant kicked and punched the deceased as he lay on the floor. At some stage, the appellant took hold of a knife with which he repeatedly stabbed the deceased.
  7. The deceased sustained multiple penetrating stab wounds. One group of wounds was in the right arm and chest. A second group of wounds was located over the abdomen. The stab wounds were associated with two significant injuries to the aorta. One completely severed the aorta; another caused a half thickness cut to it. These two wounds caused massive blood loss, leading to unconsciousness within 20 to 30 seconds and death within two to three minutes.

Human Rights Commission: a charter of change


Sometimes I read a report that seemingly seems to encapsulate much of what I and many others have sought for many years- to deal with entrenched discrimination, and to remove it.
 

This is what happened when Human Rights Commissioner Tim Wilson, an Abbott appointee, released a report about State sanctioned LGBTI discrimination in Australia, which he called to end.

On this, the 800th anniversary of the Magna Carta, it's apt to call the report a charter of change, because it sets out the necessary steps to end discrimination. The report sets out a great check list of what needs to occur. 

If only LGBTI people could confidently hold hands when out in public. As one respondent said: "There would be equality before the law (for instance, with the right to marry) and people should be able to express their love for their partners in public without anyone batting an eyelid (as is currently the case for heterosexual couples)."
There would be equality before the law (for instance, with the right to marry) and people should be able to express their love for their partners in public without anyone batting an eyelid (as is currently the case for heterosexual couples).
There would be equality before the law (for instance, with the right to marry) and people should be able to express their love for their partnerHere is the summary:


Despite progress being made in recent years, LGBTI people continue to face a range of significant challenges in Australia including:
      Poor community understanding and visibility of the distinct issues that affect people on the basis of SOGII status, particularly in relation to gender identity and intersex status.
      State-sanctioned structural discrimination on the basis of SOGII status, which has flow on impacts in legitimising institutional and interpersonal discrimination.
      A lack of cultural competency and understanding of the distinct needs of LGBTI people in the provision of public services, including education, health and aged care.
      The intersection of the human rights of LGBTI people with the rights of others, notably in relation to religious freedom.
      Attitudes from people from different cultural backgrounds that have a negative attitude toward SOGII issues and their rights, especially children during the developmental stage of their life when they need support.
      Unacceptably high rates of marginalisation, bullying, harassment and violence.



 
The legacy of State-sanctioned discrimination is significant in its legitimisation of institutional and interpersonal discrimination across society. Governments have had a leading role in creating this culture, and so must also take a lead role in undoing it.
Some of the issues that remain to be addressed can be done so readily and easily. There are also more complicated and broader challenges around systemic and social discrimination against LGBTI people that must also be addressed.
Despite the concerning issues raised in the consultation, it should not be forgotten that there is significant room for
optimism. As the Case Studies in this report demonstrate, the LGBTI community is incredibly resilient. Individuals
are bringing about the change they want in the world through many successful and exciting initiatives to promote awareness and inclusion of SOGII issues, and often without any government support.

Through the consultation process, the Commission heard evidence of the impact of unjust discrimination in the delivery of government services, notably health and education, as
well as public participation in employment and sport. The experience of unjust discrimination remains a key barrier in advancing a culture of respect for LGBTI people. Removing unjust discrimination is vital to ensuring the LGBTI people feel confident to realise their full potential and maximise their contribution to Australian society.
The consultation raised significant issues regarding relationship recognition, families and protecting the best interests of children. It also identified specific, distinct barriers faced by trans and gender diverse people, intersex people, and Aboriginal and Torres Strait Islanders who are LGBTI.
To address the issues raised requires a variety of responses federally and at the state and territory level. This includes law reform, changes to policy and practice, the prioritisation of research and SOGII diversity training in professional settings.
To ensure all Australians are treated equally and fairly by the law and government, the following law reform should occur promptly at a Commonwealth level:
1.         Amendment of the Marriage Act 1961 (Cth) to equally recognise the partnership of two adult persons regardless of the gender of the partners.
2.         Alternative options be identified to the requirement of a Family Court Order for access to hormone treatment for children under the age of 18 (while continuing
to ensure there are adequate safeguards that take into account the opinion of relevant and appropriate medical practitioners and the views of the young person seeking treatment).
To ensure all Australians are treated equally and fairly by the law and government, the following law reform should occur promptly at a state and territory level:
1.         All states and territories should review the coverage
of SOGII issues in anti-discrimination laws and amend these laws as appropriate so that they are inclusive of different SOGII issues.
2.         In the interests of preserving resilient families and marriages, all states and territories should remove the requirement that married couples get divorced in order for one partner that is transitioning their gender to
have it acknowledged on official documentation.

1.    Provide a final 12-month extension for states to bring their laws into conformity with the Sex Discrimination Act 1984 (Cth), coupled with a clear statement that after July 2016 no further extension will be provided.
2.         In line with the High Court case of AH & AB v the State of Western Australia, all states and territories legislate to require that a self-identified legal declaration, such as a statutory declaration, is sufficient proof to change a person’s gender for the purposes of government records and proof of identity documentation.
3.         The Australian Capital Territory, Northern Territory, Queensland, Tasmania, and Western Australia legislate to expunge criminal records of historic consensual homosexual sex offences. That Western Australia
and the Northern Territory commit to schemes that expunge the criminal records of historic consensual homosexual sex offenses. That the Australian Capital Territory, Queensland and Tasmania implement intended schemes to expunge these criminal records. That South Australia develop an implementation process following the introduction of legislation to expunge these records.
4.         Queensland and South Australia legislate to abolish the homosexual advance defence.
5.         Victoria complete the repeal of section 19A of the Crimes Act 1958 (Vic) that creates a dedicated criminal provision for HIV.
6.         In the interests of promoting public health and ensuring testing for sexually transmitted infections, blood borne viruses and HIV, Queensland amend the age of consent to ensure the equal treatment of teenage gay males.
7.         Relevant state and territory laws be amended to ensure that parents can be recognised on birth certificates (regardless of their SOGII status) and in adoption processes.
8.         Northern Territory, Queensland, South Australia and Victoria amend laws to allow couples to adopt children based on their capacity, not their SOGII status.
9.         South Australia amend laws to ensure access to Assisted Human Reproduction Services is not restricted on the basis of SOGII or marital status.



Addressing the issues raised in these consultations also requires the cooperation of Commonwealth, state and territory governments to address cross-government law and practice. As a consequence, the following should occur promptly:
1.         All states and territories to develop and implement policies on the placement of trans and gender diverse prisoners in correctional services and for access to hormone therapy to be based on medically-identified need, not discretion.
2.         The establishment of a trans-specific policy stream across the health system to ensure that trans people do not face bureaucratic barriers to accessing healthcare, including:
     the potential for rebates for necessary pharmaceutical and surgical treatments consistent with rebates enjoyed by all other Australians.
     standardised treatment access and commencement policy for hormone therapy and gender affirmation procedures across state and territories.
3.         Implement the recommendations of the Australian Senate Community Affairs Committee’s 2013 Report on the Involuntary or Coerced Sterilisation of Intersex People in Australia, as well as consult with LGBTI people in responding to the Family Law Council’s 2013 Report on Parentage and the Family Law Act.
4.         The inclusion within family and domestic violence strategies of measures to address violence in same- sex relationships, and toward trans and gender diverse people.
5.         A review at the end of 2016 of complaints about SOGII issues lodged under the School Chaplaincy Program
to establish whether concerns about allegations of harmful practice are based in evidence.

Further, any consideration of the nation-wide ban on commercial surrogacy should be pursued without discrimination against people on the basis of their SOGII status, and should be guided in seeking to protect the best interests of the child and the surrogate.

  
8.         Northern Territory, Queensland, South Australia and Victoria amend laws to allow couples to adopt children based on their capacity, not their SOGII status.
9.         South Australia amend laws to ensure access to Assisted Human Reproduction Services is not restricted on the basis of SOGII or marital status.

 
The Australian Human Rights Commission has a key role working with other bodies to foster and implement change:
1.         Reducing rates of violence against LGBTI people is vital. The Australian Human Rights Commission will undertake a scoping project to explore available and potential data documenting rates of violence against LGBTI people to inform future work in this area.
2.         The Human Rights Commissioner will establish a religious freedom roundtable to bring together representatives of different faiths to identify how to recognise religious freedom within law, policy and practice in Australia. This will include, but not
exclusively focus on, SOGII issues. The Commissioner will maintain an ongoing dialogue with LGBTI representatives to identify how to appropriately balance religious freedom and the rights of LGBTI people to be treated equally under law and by government. When considering LGBTI issues, the roundtable will be guided by principles, including:
     The extensive and significant common ground between religious communities and LGBTI people on the use of law of any accommodating competing rights.
     The equal treatment by the law and government of LGBTI people and religious freedom and
that each of these considerations are equally important.
     The need to protect the rights of all people at vulnerable stages of their life.
The roundtable will consider the scope of exemptions to the Sex Discrimination Act 1984 (Cth) for service providers to LGBTI people, particularly those who are delivering services funded by government such as in relation to healthcare, education and crisis intervention.
SOGII diversity training should also be developed and incorporated into:
1.         Medical, health science and allied health courses (through the university and vocational training sectors), as well as being included in the professional development of current medical practitioners via the Australian Medical Council and other health worker professional bodies.
2.         Teacher and welfare courses (through the university and vocational training sectors), as well as being included in the professional development of current practitioners via the Australian Teachers Federation and other professional bodies.

1.         The National School Curriculum, including information about sexual health for LGBTI people.
2.         Resources that build awareness of the specific therapeutic and medicinal needs of transgender and gender diverse people, targeted to those being trained and existing practitioners.
3.         Professional and community sporting codes, particularly for the inclusion of trans and intersex people.
To advance this training, the Australian Human Rights Commission will:
1.         Work with universities, vocational education providers and professional bodies (such as medical bodies and teaching associations) to undertake an audit of the inclusion of SOGII issues in the health and education fields. This audit will identify existing resources, where gaps remain, and how best to develop necessary resources to improve coverage of SOGII issues.
2.         Review the evidence-base on the experiences of trans, gender diverse and intersex people in sport, and engage in policy processes to promote better inclusion practices.
The following issues should also be prioritised for research by other bodies so we can better understand their full impact on the rights of LGBTI people:
1.         The nature, cause and effects of unconscious bias and direct discrimination against LGBTI people within the Australian healthcare system.
2.         The experiences of discrimination by intersex people in Australia.
3.         The specialist clinical service provision needs of trans and gender diverse people and how they could be better provided for by Medicare.
Given the lack of visibility of issues facing intersex people and Aboriginal and Torres Strait Islander peoples who are LGBTI, support should be provided for mechanisms to ensure their representation in public policy in Australia.