Friday, 26 October 2007

What the parties say (or don't say)......

Earlier this week, I was asked by Qnews, as its legal columnist, to find out what the political parties' positions were on same sex law reform, particularly in light of the report of the Human Rights and Equal Opportunities Commission which found that there was discrimination in a myriad of Commonwealth laws against same sex couples.



Liberals

Reports indicated that this issue was discussed at Cabinet, where no decision was made as the Cabinet was split, with some Ministers including Turnbull and Ruddock being in favour, and others including Minchin, Abbott and Andrews, being against.

It is not known what the position was of Peter Costello.

Ultimately it was left to John Howard to decide.

That position was made plain when at a joint party room meeting the PM opposed any changes.

As part of the preapration for my story, I emailed Liberal HQ, and also phoned for the State media director, pointing out that I had a deadline the same day and that the paper would come out about a week before the election. I have had no response.

Nationals

The policy is not published. I similarly left a message for the State Director to call me, my saying the same thing in that message as I did for the Liberals' state media director.

No response.

Labor

The ALP has published its policy online- essentially it is opposed to gay marriage, but in favour of removing all discrimination- so endorsing the HREOC report.

The ALP also favours a state based system of relation registries for same sex couples as occurs in Tasmania and as proposed for Victoria.

Kevin Rudd in the meantime has come out and said that he is opposed to same sex marriage, and whilst he is largely opposed to adoptions by same sex people (though he found that there were some exceptions) that was a matter for the states.

Greens and Democrats

Both the Greens and the Democrats seek that same sex couples have the same rights as everyone else, and have the right to marry. They would enact the changes supporting the HREOC report.

Link to Qnews

Tuesday, 25 September 2007

Lesbian couple sue doctor for extra baby

A lesbian couple, who have three year old twin daughters, are suing Canberra obstetrician, Dr Robert Armellin, for wrongful birth after he supervised the implantation of two embryos instead of one into the birth mother during an IVF procedure.

The women are suing the doctor for the cost of raising the mistakenly implanted second child. The sum includes funds for private school, medical expenses and lost wages.

The mother claimed that certain aspects of pregnancy were extremely stressful to her - for instance, buying a stroller - due to the fact that she was carrying twins.

The mother's partner claimed in court that the couple became so overwhelmed with every day childcare issues that they lost their ability to function as a couple.


Dr Amellin has admitted that a mistake was made in implanting two rather one embryos. There is an issue about whether the mother changed her mind about one instead of two at the last moment before the procedure.

There has been some criticism that the mainstream media has focussed on the couple because they are a lesbian couple rather than a married, heterosexual couple.

The last time a couple sued when a child was wrongly born (due to the failure of clips for a tubal ligation) the case was ultimately thrown out of court by the High Court on the basis that it was a joy to have a child and the positive impact their child had on their lives.

Howard refuses to remove discrimination

At the most recent joint partyroom meeting while Parliament was sitting, MP Warren Entsch called on John Howard to make a quick decision about same sex law reform. Howard refused and said that he would not be making the proposed changes, saying that he was opposed to them.

To recap- The Human Rights and Equal Opportunity Commission stated in a recent report that there were many Federal laws that discriminated against same sex people. The ALP, Greens and democrats all backed the HREOC report. Attorney-General Phillip Ruddock took a submission to Cabinet some weeks ago saying that there should be changes to reflect the report. Some Ministers were reportedly against the changes, including Tony Abbot and Kevin Andrews. With no consensus at Cabinet, it was left to John Howard to decide on behalf of Cabinet...

And now he has refused...

Warren Entsch retires

The "100% heterosexual" MP from Far North Queensland, Warren Entsch, has delivered his valedictory speech in Federal parliament. Warren Entsch recently led a push by backbench coalition MP's to ensure that same sex couples had the same rights as married and heterosexual couples under Commonwealth laws, for example with tax, superannuation and Medicare.

Unfortunately he has been unsuccessful. Describing himself as "I could have done more", Mr Entsch described the push as being one of fundamental human rights.

I do not know what he could have done to persuade John Howard to allow the legislative change to occur.

Mr Entsch was able to build broadbased support for the changes within the partyroom, showing how to achieve practical change.

Vale Warren Entsch. You will be missed.

Tuesday, 18 September 2007

Transgender unsuccessful in getting birth certificate changed

In AB v Registrar of Births, Deaths and Marriages,the applicant who was born male, but had had gender reassignment surgery to female, sought to have the birth certificate details changed from "male" to female".

She had already successfully applied to have her changed name recognised on the birth certificate.

The Registrar refused to allow the change of gender on the certificate, because the Victorian Act required the applicant to be married. The applicant was married but separated.

The applicant applied to the Federal Court on the basis that the Victorian legislation was discriminatory on the basis of her marital status within the meaning of the Commonwealth Sex Discrimination Act. She was unsuccessful.

Justice Heery held that the provision of the Sex Discrimination Act was legislation:



"and not some other form of governmental activity (such as, for example, public education or governmental employment practices) is part of Australia’s discharge of its obligation to legislate as required by the Convention. It is therefore to be construed as prohibiting discrimination against women – treating them less favourably than men – because they are married. The action of the Registrar in the present case had nothing to do with the applicant’s being a woman. Had the applicant been a man, the result of the application would have been the same. "



Comment

One questions why this legislation requires the applicant not to be married.

Given that it takes only one year to pass to be eligible to be divorced, all the applicant had to do to avoid the effects of the legislation was to wait for the year to expire, divorce and then apply- and it should have gone through smoothly.

In Queensland, former Attorney-General Rod Welford ruled that in a case in which I acted, the act of marriage applied to those marrying in Australia only. As my client married outside Australia, she could still obtain the change of gender on the certificate.

Thursday, 6 September 2007

Gay Lebanese man declared refugee

A Lebanese man was recently granted refugee status by the Refugee Review Tribunal because he was gay goes to show that some of the criticism of that tribunal is unwarranted.

The man gave evidence that:
"he came from a very conservative [religious] family who resided in [location], a region renowned for its conservative views. He fears persecution on the ground of belonging to a Particular Social Group, that is being homosexual."

"He has constantly tried to conceal his sexual orientation for fear of retribution by his family and other people, as homosexuality is still not accepted in Lebanon. Those who are accused of being homosexuals are persecuted and considered outcasts. The mere discussion of homosexuality is considered taboo."

"Some people suspect that he is homosexual because of his placid nature. During his military service [for a period of years], he was fearful for his safety and was constantly forced to deny that he was homosexual. Other conscripts used to abuse him mentally and physically but he feared complaining to his superiors."

"At the age of [teen years] he started to feel that he was attracted to other males. But he was denied the opportunity of maintaining a relationship with other males because of fear that he would be discovered."

"At his age as the family expected him to get married he was constantly under pressure to meet girls but he never maintained a serious relationship, hoping that he would have an opportunity to leave Lebanon."

"His adult life was characterised by fear. He was constantly under threat of physical harassment. On a number of occasions he suffered from physical violence by people who suspected that he was homosexual. He was forced to conceal his homosexuality in order to avoid harm."

"He cannot rely on the authorities for protection because in Lebanon homosexuality is not accepted. The police conduct a campaign of rounding up suspected homosexuals."

"He did not come from a privileged social class who has the capacity to enjoy more freedom in Lebanon. He fears being killed by his immediate family and relatives."

"He has told his [family member] in Australia that he is gay . His [family member] has advised him to keep this aspect of his life secret because he is concerned about guarding the family honour. He does not want him to tell his wife and children because they will not allow him to remain living with them."

The Tribunal sought out independent evidence from websites, which talked about how gays are persecuted in Lebanon. Aside from the criminalisation of homosexual acts, gay men in Lebanon were afraid of police. Police used their power against gay men: “It has been reported that a gay man paid a bribe to have any mention of his sexual orientation erased from his criminal record. Extortion of gay men by security agents has also occurred, especially in cruising areas.”

After all this evidence, it was perhaps no surprise when the Tribunal decided that the man was a refugee and was entitled to a protection visa.

This decision is not an isolated one, but it is clear that some cases are rejected, and that it is essential if applying to be a refugee on the grounds of being LGBT, it is essential to be properly prepared, with a good migration agent. The success rate of matters in the Refugee Review Tribunal is currently only 30%.

Howard to decide?

It's been about two weeks now, but still there has been no news as to what the Federal Government is going to do to respond to the Human Rights and Equal Opportunity Commission report about how Commonwealth law discriminates against same sex couples on financial and personal affairs.

About two weeks ago, Federal Cabinet (which was reportedly split on the issue) decided that the PM could decide whether or not the Government would make changes.

Attorney-General Phillip Ruddock apparently came to Cabinet supporting a comprehensive change, but others, such as Tony Abbott and Kevin Andrews opposed it, on the grounds that the time was not right.

The day after the Cabinet meeting, Howard went to meet members of the anti-gay sect the Exclusive Brethren, one of whom was a prominent donor to the PM's election campaign.

In the meantime, Labor and the minor parties support the changes.

Saturday, 18 August 2007

Darren Hayes Slams John Howard: Qnews

Darren Hayes Slams John Howard


Brisbane’s own Darren Hayes, former lead singer of Savage Garden has slammed John Howard after his British husband was forced to fly to Australia on a tourist visa according to the Courier Mail.

Hayes is quoted as saying "It makes me angry and frustrated "I’m Australian and I can’t bring my partner home as my partner. "That to me is an infringement of my civil rights – a very un-Australian thing". "I would never have voted for John Howard and I encourage people not to. I don’t think he speaks for this country in the same way I don’t think George Bush speaks for the US". "Every time I come home there’s this whole kerfuffle" said Hayes who is in Australia to promote his new album and single that already is number 10 in the UK and hit Australian charts at number 29. The single "On the Verge of Something Wonderful" is listed on his new double album "This Delicate Thing We’ve Made" due for release on 20th August.

The Courier Mail’s website was inundated with comments when the article appeared attracting hundreds of responses.

Haye’s is also quoted as saying "We have to get Richard a visa. "He’s my partner, I share my life with him. I’ve inherited all the rights that normal couple have. "That’s my right as a human being. It really annoys me". "I’m in a loving, stable relationship".

"I love my record, I’d much rather be speaking about my record but at the same time I unwittingly became a spokesman for something I really do believe in".

Source:


Qnews

Govt blocks same sex entitlements inquiry

Findlaw.com.au reports that Democrats Senator Andrew Bartlett has slammed the federal government for using its Senate majority to block a Senate Committee from examining legislation seeking to implement the recently completed Human Rights Commission report into discrimination against same-sex couples.

The Democrats had introduced legislation into the Senate put into law the recommendations from the Human Rights Commission's report, Same Sex: Same Entitlements . The party sought to have a Senate Inquiry "to assess whether or not [the] Bill adequately reflects and implements those recommendations, before moving to have it passed by the Parliament prior to the election."

"The federal government repeatedly says it supports removing discrimination against same-sex couples, yet it repeatedly blocks every single effort by the Democrats to implement this basic principle in law," Mr Bartlett said.

PFLAG- latest lobbying for Change


Lobbying in Canberra

PFLAG Brisbane has outlined its most recent lobbying by convenor Shelley Argent...

On the 12th and 13th of July, Shelley went to Canberra with Rodney Croome (Tasmanian Gay Activist) and Mark Morein (of the Queensland Association of Healthy Communities) to meet with James Fox, Mr. Howard’s legal adviser and Phillip Ruddock, Attorney General.

Both meetings went for approximately 90 minutes each.Very briefly, Mr. Fox stated that he will put our point of view to the Prime Minister, but of course doesn’t know if Mr. Howard will act. He was friendly and listened to what we had to say. We believe that he took many of our concerns on board. Mr. Ruddock stated that there is a submission to be presented to parliament. He wouldn’t say when and he wouldn’t say what would be in the submission. When Shelley mentioned economic discrimination, he stated they do benefit from the taxes they paid, because theytoo drove on the roads.As Rodney Croome says, we just need to keep“chipping” away. Each time a group meets with these people it makes it easier for the next group and if it happens enough government will learn we are serious about equality and changes will happen.

Saturday, 4 August 2007

Comment on case: Verner and Vine

I am grateful to my friend (and non-lawyer) Sue Kentlyn for bringing my attention to a case decided earlier this year in the Full Court of the Family Court, Verner and Vine.

Although one can understand at some level the process that the Full Court reached, in its limited capacity of an appeal court, I would doubt very much if it would have reached the same result if the appellant were represented at trial and if the sexuality of the appellant were different.

The facts

The parties lived together in some kind of relationship for 7 years from the age of 17 until 24, when the child was born, then within 2 years the mother had married, then proceeded to have 2 more children in the marriage.

The child the subject of the application was severely disabled.

The appellant stated that the mother and she had been in a lesbian relationship. The mother denied this, saying that they were just friends. Against this denial, the mother had applied for IVF treatment (resulting in the birth of the child)and represented that she was in lesbian relationship with the mother.The appellant and the mother also owned a home together.

Some considerable effort was spent at the trial by the appellant to show that the mother and she were in a lesbian relationship.

It was the mother's case that to expose the child to the existence of the mother would be extremely upsetting and that as a result there should not be contact between mother and child.

At trial, Lawrie J agreed with the mother, and dismissed the appellant's application.

Not a parent

The first point that her Honour made was that the appellant was not a parent under the Family Law Act or the NSW Status of Children Act.

The second was that she may be a person who was within the class of
other people significant to [the child’s] care, welfare and development
and therefore might have had standing to make application under the Family Law Act.

Her Honour was not impressed by the appellant's evidence of the nature of the relationship and then said:
“[w]hatever the nature of the relationship at the time A was conceived, it is now very different from a close friendship or a love affair”, and she proceeded to discuss the present state of the relationship between the appellant and the mother, concluding this discussion by saying:
The state of the relationship between these former friends which exists today makes it clear that it would be extremely unpleasant for the mother to be in a position where she was required to have any further contact with the applicant. I am satisfied that it would impinge on her and her family’s need for peace and tranquillity and cause upset in the child’s home which would not be in the child’s interest.



Her Honour also found that in 2 1/2 years the appellant had only seen the child 4 times.

Another issue pressed by the mother and accepted by Lawrie J was that the child's disabilities were such that she could not communicate with others and was very reliant upon the mother and stepfather.

The appeal

The appellant, who was now reperesented appealed unsuccessfully, the Full Court finding in essence that the various decisions by Lawrie J were within the ambit of her Honour's discretion.

Comment

What is extraordinary about the comments by Lawrie J about upset is that everyday in the Family Court and Federal Magistrates Court fathers (and occasionally mothers) seek to spend time with their children when it is clear that it would make the former partner feel "extremely unpleasant". Usually the courts have very little sympathy and press upon that parent the need for the child to know who she or he is.

On reading the appeal court judgment, it seems that the appellant, in being self-represented, made a number of basic errors in running a trial, which were simply too late to fix on appeal.

Elias Principle

It is all too common in property settlement cases where a party might make representations to a third party which are at complete odds to what they are now telling the court. A typical example is a woman saying to Centrelink that she was a single mother, whilst saying in property settlement proceedings that she had committed fraud on Centrelink as she was in a de facto relationship.

The rule in property settlement cases is a rule of family law that when people make representations of fact to third parties and gain advantage from so doing, they cannot in subsequent property proceedings of the Family Law Act lead evidence which contradicts those representations: Elias principle as explained in Jordan (1997).

The principle applied in Elias and similar decisions is more than merely a rule or presumption about credibility, to the effect that in some circumstances a party cannot be expected to be believed if he or she puts a proposition inconsistent with a representation made to revenue authorities. It is a rule of law that prevents a party asserting something in the proceedings.

Why should it have been any different here? The mother made clear representations to doctors that she was in a lesbian relationship with the appellant, and yet now says that she was not.

The relevance of course is that if she were in a lesbian relationship then, the clear inference is that the child was planned by the parties, and the involvement of the appellant in the child's life is obvious.

This case is a clarion call for lesbian couples to be very careful to protect the rights of their children. Whilst co-parenting agreements are not legally binding, they might be able to show clear evidence that the parties were in a relationship together and had planned the child together, and that therefore the co-parent should be recognised and at some level involved in the child's life.

WA, Vic: Feds' homophobia holding up evidence reform



Joint Media Statment - Western Australian and Victorian State Governments
The Hon. Jim McGinty MLA (left)
Attorney General
Minister for Health
Electoral Affairs The Hon. Rob Hulls MP (right)
Attorney General
Minister for Industrial Relations
Minister for Racing

A national approach to the rules of evidence admissible in court is in danger of being derailed because of the Federal Government’s continued discrimination against heterosexual and same-sex couples in de facto relationships.

The Victorian and Western Australian Attorney-Generals, Rob Hulls and Jim McGinty, said that the Federal Government needed to get its house in order so that further reform to evidence law could be properly considered.

“Most State jurisdictions include same-sex couples in their definition of de facto relationships, and Philip Ruddock needs to catch up with the twenty-first century and most other Australians in his attitude to legitimate relationships,” Mr Hulls said.

“Nationally uniform evidence laws are important because they would provide consistent rules across all courts on issues such as whether people in domestic partnerships are required to give evidence against each other.

“Philip Ruddock wants this reform, but he also wants to perpetuate discrimination by refusing to agree to a definition of domestic partnerships that goes beyond a husband and wife to include same-sex and heterosexual couples in de facto relationships.

“Enough is enough - Philip Ruddock cannot expect real reform on evidence laws when he is still refusing to act on powers referred from the States years ago to remove similarly discriminatory provisions in property, superannuation and other federal laws.

“Homophobia is just not an excuse for this ongoing discrimination against large numbers of Australians in de facto relationships, whether they are same-sex or heterosexual.”

The WA Attorney-General, Jim McGinty, said it was disgraceful that in most parts of Australia, only married couples had access to the Family Court to resolve their property matters.

“Every state, except South Australia, has passed legislation referring power to the Commonwealth to enable it to amend the current laws and give people who have been in a de facto relationship the same property rights as those who are married,” Mr McGinty said.

“It’s time that Mr Ruddock woke up and acknowledged the fact that many Australians choose not to marry and instead live in de facto relationships. These people should not be discriminated against because of their choice.

“WA is the only state which has been able to give its de facto couples access to the Family Court to resolve property matters.

“Because, unlike the other States, WA has its own Family Court, we have been able to give de facto heterosexual and same-sex couples, whose relationships have broken down, access to the Court’s specialist tribunal to resolve their property disputes.

“However for constitutional reasons we could not legislate with respect to superannuation, so like the other States, we referred those powers to the Commonwealth. Now, having done our part over the past few years, the States are still waiting to see de facto couples given the rights they deserve.”

Mr Hulls said Mr Ruddock had continually delayed introducing the Family Law Amendment (De Facto Financial Matters) Bill 2007 into Federal Parliament.

“This means that in most parts of Australia, only married couples are entitled to use the Family Court to finalise their financial affairs, while de facto couples are forced to have their cases heard in non-specialised State courts,” Mr Hulls said.

“These courts are not as well equipped to deal with family matters.

“The Family Court of Australia uses modern legislation to decide property disputes between couples and specialised judiciary, whereas State courts use older and more complex laws which in many cases can lead to delays and increased expense.”

Source: Ministerial Media Release

Tuesday, 17 July 2007

Government rejects Kirby's request for equality



Within the next year or so, two of the country's most distinguished jurists, Justices Ian Callinan (left) and Michael Kirby (right)are due to retire from the High Court. Justice Callinan is married. Justice Kirby is gay, having been in the same relationship for 38 years.

If Justice Callinan dies, his widow receives a pension for the rest of her life. If Justice Kirby dies before his partner, then his partner will not be entitled- because his partner is gay.

This discrimination was identified in the recent Human Rights and Equal Opportunities Commission report, in which it was suggested that it ought to be changed. At the time, Commonwealth Attorney-General Phillip Ruddock said that the Government would consider each change on a case by case basis.

It was reported last week that Justice Kirby had written to the Government last week, noting the discrimination, and seeking that the law be changed. As of Thursday last week,gay activist Rodney Croome and representatives from the Queensland Association for Healthy Communities and PFLAG met with officers from the Attoreny-General's department.

Any joy about removing the discrimination for Justice Kirby was shortlived- Mr Ruddock rejected any proposed change for Justice Kirby ahead of any broad ranging reform.

See article in The Australian.

US Dykes on bikes win right to trademark

Last year I travelled to the US and had the privilege of meeting the legal director fo the National Center for Lesbian Rights, Shannon Minter, and other staff at their headquarters in San francisco.

Shannon told me of an amazing case that they had been involved with for several years, when the Dykes on Bikes, wanting to preserve their intellectual property, tried to have their name registered as a trademark.

All pretty straightforward, one would think, except that the relevant government official considered that the word "dyke" was pejorative and offensive, and refused to register the trademark.

The matter at that stage had got to the point of collecting antropological evidence to prove that the word "dyke" was not som eoffensive word, but a word of pride and dignity.

Well fast forward to this year.

This is what the National Center for Lesbian Rights had to say:
(San Francisco 12 July 2007) – The San Francisco Women's Motorcycle Contingent announced today that the U.S. Court of Appeals for the Federal Circuit issued a final ruling yesterday affirming the group's trademark of the name "DYKES ON BIKES." The Court of Appeals rejected the argument that the name "DYKES ON BIKES" was disparaging to men. Barring Supreme Court intervention, yesterday's decision removed the last obstacle to registration of the trademark.

"After a three year court battle, we are thrilled 'DYKES ON BIKES' will be protected under trademark and recognized as a celebration of our identity," said Vick Germany, the group's president. Soni Wolf, SFWMC secretary said, "This is a great victory for dyke pride and visibility -- not just for our group, but for lesbians across the country who value 'DYKES ON BIKES' as an affirmation of lesbian strength and resilience."

"We are delighted that 'DYKES ON BIKES' has been vindicated and that it is now clear that asserting pride in being 'DYKES ON BIKES' does not impact others negatively," said Brooke Oliver, the lead attorney on the case. "A lone person with a political objection to women's political speech does not have standing to object to a trademark."

"The 'DYKES ON BIKES' trademark is an important symbol to the lesbian, gay, bisexual and transgender community," said Greg Gilchrist of Townsend and Townsend and Crew. "Although it took a long time, the Trademark Office eventually agreed that the mark deserved fair and equal protection under the trademark laws. In this latest proceeding, we are grateful that the Federal Circuit agreed that bias against the San Francisco Women's Motorcycle Contingent was no basis for further delay."

The Trademark Office initially rejected the group's application for a trademark in 2004, on the ground that the name "DYKES ON BIKES" is allegedly disparaging to lesbians. In response, Brooke Oliver and the National Center for Lesbian Rights submitted more than two dozen expert declarations from scholars, linguists, psychologists, and activists showing how the word "dyke" has evolved to become a positive term and that lesbians view "DYKES ON BIKES" as a symbol of pride and empowerment. The Trademark Office then denied the request a second time.

After bringing in additional assistance from the law firm of Townsend and Townsend and Crew, the San Francisco Women's Motorcycle Contingent appealed the denial. In a decision issued December 6, 2004, the Trademark Office reversed itself and granted the application.

In February, 2006, an individual filed an opposition to the trademark, alleging the name "DYKES ON BIKES" was disparaging to men, as well as accusing group members of misconduct toward men. On September 13, the U.S. Trademark Trial and Appeal Board dismissed the opposition. In its decision yesterday, the Court of Appeal affirmed the dismissal. The Court of Appeal held that the name "DYKES ON BIKES" "would have no implications for a man" and that the individual who filed the opposition had failed to show that "his belief is shared by others."

The San Francisco Women's Motorcycle Contingent, which is a non-profit group, was forced to seek registration of the name "DYKES ON BIKES" when an individual, unassociated with the organization, attempted to use the phrase for commercial purposes and wanted to charge contingents throughout the country for its use. The San Francisco Women's Motorcycle Contingent organization decided to obtain a trademark to protect the non-commercial use of the name and its meaning to the LGBT community from private commercial use.

The San Francisco Women's Motorcycle Contingent was represented pro-bono by Brooke Oliver and Pablo Manga of Oliver-Sabec, P.C., Gregory Gilchrist, Gia Cincone, and Raquel Pacheco of Townsend and Townsend and Crew LLP, and the National Center for Lesbian Rights.

Oliver-Sabec P.C. is a boutique law firm with an international practice, often representing clients in high-profile, progressive transactions and litigation. The Firm's mission is to protect the icons, images, and entities of social change, whether the vehicle for change is embodied in a business venture, in art, film, music, technology, or some other means of creative expression. In doing so, we have established an institution that permits us to work with creative people who are doing amazing things in the world. www.oliversabec.com

Townsend and Townsend and Crew LLP has approximately 200 attorneys in eight offices. Townsend's Pro Bono program, an important aspect of Townsend's commitment to the communities in which it practices, is dedicated to providing legal services to members of the community who do not otherwise have access to the legal system. www.townsend.com

The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. www.nclrights.org

Sunday, 15 July 2007

How NOT to use Powerpoint

Funny, yet so, so true.....

Monday, 9 July 2007

Same sex domestic violence

I recently presented a paper on same sex domestic violence at the 5th Health in Difference Conference 07 in Brisbane. Here it is:

Legal Issues
As we understand it, it is now possible to obtain protection orders or their equivalent in each State and Territory of Australia for same sex couples. We say State and Territory, because all the legislation is State (or Territory) based and there is no uniform Commonwealth legislation.

We will touch briefly on the legislation in Queensland only, because we are familiar with it.

Protection Orders can be obtained under the Domestic and Family Violence Protection Act 1989 which, since 2003, has extended to same sex couples. Three things need to be shown:
(1) That there is a domestic relationship between the parties: s.11, s.20(1)(a);
(2) That the respondent has committed an act of domestic violence against the aggrieved: s.20(1)(a); and
(3) The respondent is likely to commit an act of domestic violence again or if the act of domestic violence was a threat – is likely to carry out the threat: s.20(1)(b).
Domestic relationships are:

(a) A spousal relationship. A spouse includes – (a) a former spouse; and (b) either on of the biological parents of a child. Of necessity it includes those parties who are married or living in a de facto relationship. By virtue of Section 32DA of the Acts Interpretation Act 1954 :-

(i) “In an Act, a reference to a de facto partner is a reference to either one of two persons who are living together as a couple on a genuine domestic basis who are not married to each other or related by family;
(v) For sub-section (1) – (a) the gender of the persons is not relevant….”

An intimate personal relationship exists between two people if they are or were engaged to be married to each other, including a betrothal under cultural or religious tradition – s.12A(2) also, an intimate personal relationship exists between two persons, whether or not the relationship involves or involved a relationship of a sexual nature if – (a) the persons date or dated each other; and (b) their lives are or were enmeshed to the extent that the actions of one of them affect or affected the actions or life of the other: s.12A(2).

An intimate personal relationship may exist whether the two persons are the same or the opposite sex: s.12A(4).

An informal care relationship is to cover those situations where someone is abused by their carer. This in the family relationship category was brought into existence following lobbying from activists within the Queensland Aids Council and from Seniors Groups. The activists of the Queensland Aids Council expressed a concern about carers of HIV people abusing those in their charge.

How is Same Sex Domestic Violence the same or different from Heterosexual Domestic Violence?

Domestic violence has some common themes: :-

• It’s been with us forever.
Susan Holt identified in 2002 :-

“The first court transcript documenting violence in a lesbian relationship appeared in Germany in 1721”

and on January 2001, Wanda Jean Allen was executed in Oklahoma for the 1988 murder of her partner, Gloria Leathers.

In 1994, Robert McEwan was arrested in Perth and charged with lawful murder of his same sex partner of 14 years. McEwan’s partner died from multiple stab wounds. McEwan pleaded not guilty basing his defence on the battered wife syndrome and provocation and gave a litany of evidence of how he had been abused by his partner, physically, sexually and emotionally for many years. The jury was unable to reach a verdict. The matter was referred back to the Director of Public Prosecutions who then decided not to proceed with the wilful murder charge. A plea to the lesser charge of manslaughter was recorded.
• It typically crosses all socio-economic and racial barriers
• It can be committed by men to women in heterosexual relationships
• Or for that matter women to men
• Or men to men
• Or women to women
• It involves notions of one party controlling or attempting to control the other by a variety of tools, including physical, emotional, sexual, social isolation, use of children, and financial.
• Victims are ashamed, afraid and embarrassed to complain.
• People do not like talking about it, with the result that it is often hidden by that silence.

There are a myriad of definitions of domestic violence. As useful as any other is that contained in section 11 of the Domestic and Family Violence Protection Act 1989:

(1) Domestic Violence is any of the following acts that a person commits against another person if a domestic relationship exists between the two persons –
(a) wilful injury,
(b) wilful damage to the other person’s property.
Example: wilfully injuring a de facto’s pet.
(c) intimidation or harassment of the other person.
Examples–
(1) following an estranged spouse when the spouse is out in public, either by car or on foot
(2) positioning oneself outside a relative’s residence or place of work
(3) repeatedly telephoning an ex boyfriend at home or work without consent (whether during the day or night).
(4) regularly threatening an aged parent with the withdrawal of informal care if the parent does not sign over the parent’s fortnightly pension cheque.
(d) indecent behaviour to the other person without consent.
(e) a threat to commit an act mentioned in paragraphs (a) – (d).
(2) The person committing the domestic violence need not personally commit the act or threaten to commit it.

Frequency of Same Sex Domestic Violence

No doubt Brad Gray will be able to advise you better than we can, but there is a general paucity of research about prevalence rates. The best that can be ascertained is that same sex domestic violence is at least as frequent per capita than amongst heterosexual couples. There are some who argue that the rates are higher and others that the rates are lower.



Myths and Realities about Same Sex Domestic Violence

In 2002, Susan Holt and Delena Couchman, through the LA Gay and Lesbian Center’s Stop Partner Abuse Domestic Violence Program set out a list of myths and realities about same sex domestic violence which we consider probably the most useful list that has yet been published:

Myth

• Domestic violence is more/less common in heterosexual relationships than it is in LGBT communities;

• Only heterosexual women are battered.

Reality

• Studies indicate that domestic violence occurs in LGBT communities with the same amount of frequency and severity as in the heterosexual community and affects as many as one in three relationships. Men as well as women are battered or abuse their partners.

Myth

• Violence in LGBT partnerships is “mutual combat” or a “lover’s quarrel”. It really isn’t violence when a same sex couple fights. It’s a fair fight between equals. It isn’t violence when gay men fight. Its just “boys being boys”;

• LGBT persons are more likely to equally participate in the violence than are heterosexuals.

Reality

• Partner abuse/domestic violence involves one partner who is exerting power and control over another. It can include coercion, intimidation, physical and sexual violence. Labelling violence as “mutual” or as a “lover’s quarrel” minimises and denies the severity of the abuse;

• While LGBT survivors may be more likely to fight back in self defence due to perceived equality and/or lack of LGBT specific and sensitive resources, abuse in relationships is not “mutual” and “lover’s quarrels” are typically not lethal.

Myth

• LGBT partner abuse is primarily found in relationships when partners are in “roles”;

• The batterer is usually more masculine, stronger and larger, while the victim is usually more feminine, weaker and smaller;

• Women do not batter/men cannot be battered.

Reality

• Partner abuse is about one person exerting power, dominance and control over another. The abuse can be physical, sexual, verbal, emotional, psychological and/or financial in nature and may involve the use of weapons and threats as well as homophobic/biphobic/transphobic control. Exerting power does not require the batterer to be larger or physically stronger. LGBT partner abuse is not confined to “gender roles”.

Myth

• LGBT partner abuse occurs primarily among women and men who are poor, people of colour and those who frequent bars;

Reality

• Chronic abuse occurs in approximately one in three relationships regardless of sexual orientation, ethnicity, socio-economic status, education, religious affiliation, political ideology, physical ability etc. Domestic violence crosses all boundaries and does not discriminate. Although substance use is a co-factor to domestic violence, it does not cause abuse.

Myth

• As same sex couples are more likely to be equal in size, the damage inflicted by the lesbian or gay batterer is typically less than that inflicted by the male heterosexual batterer. The acts of violence perpetrated by gay men are more severe than acts of violence perpetrated by female batterers.

Reality

• Both men and women are capable of committing acts of severe violence. Some female abusers have stabbed, shot, brutally beaten and/or killed their partners. Dismissing the potential severity of same sex battering is dangerous.

Myth

• Violence occurs in the LGBT communities because of the high rates of alcohol and drug use.

Reality

• Drinking lowers control over inhibitions which sometimes prevent people from being violent. However, just as in heterosexual partner abuse, many batterers do not abuse substances and/or do not necessary batter while using substances. Ultimately, relationship violence is about the choice one partner makes to exert control over the other. Substances do not cause violence but are a significant co-factor to it.

Myth

• The law does not/will not protect LGBT victims of partner abuse;

Reality

• In Australia, legislation specifically includes LGBT victims, such as the Domestic and Family Violence Protection Act 1989;
• Battered LGBT women and men are as likely to identify themselves as victims as are heterosexual women;

• Same sex domestic violence often remains unseen and invisible. Many individuals are overlooked and do not receive needed help. There is a lack of recognition and legal legitimacy for LGBT families and, because domestic violence is thought to occur most commonly in heterosexual relationships, those in LGBT communities may not even realise that they are experiencing it or may be apt to believe that they are to blame.

Myth

• Children are not an issue for battered lesbians and gay men.

Reality

• Many LGBT families have children through prior relationships, adoption, artificial insemination etc. Unfortunately, as with all families, children often witness violence exerted by one parent over the other.

Myth

• It is generally easier for LGBT victims of domestic violence to leave an abusive partner or seek help than it is for battered heterosexual women.

Reality

• It is generally more difficult for LGBT survivors to seek help than it generally is for heterosexual women. There are few LGBT specific resources available and many service providers are not trained to provide culturally competent services to LGBT individuals. LGBT individuals may fear that they will be treated with prejudice, judged, not believe or taken seriously. Additionally, seeking services for partner abuse forces LGBT people to reveal their sexual orientation which is always a major life decision that may result in the loss of family and friends, employment, child custody etc.

• Many LGBT people have no support from their families because of the refusal of the family to accept the LGBT person’s sexual orientation or gender identity;

• There are no domestic violence shelters that I’m aware of in Australia that accommodation male survivors and there are no shelters that I’m aware of that are specifically for LGBT domestic violence survivors. There are issues for both lesbian survivors being house with their abusers and accommodation for trans-gender survivors.

Myth

• There is absolutely no difference between domestic violence in same sex relationships and in heterosexual relationship.

Reality

• Many of the dynamics of partner abuse are the same in same sex and heterosexual relationships. LGBT domestic violence has unique factors, however, that relate to homophobia, biphobia, transphobia, and heterosexism within society. LGBT people are not afforded many basic civil rights that heterosexual people receive. As a result, there are often inadequate and insensitive supports or resources. LGBT people may fear being “outed” after disclosing partner abuse; afraid of unfair treatment by courts, police and service providers;

• Concerned about the impact on arrangements for the children etc. In addition, many LGBT people may be struggling with their own internalised homophobia, biphobia or transphobia which increase feelings of shame and low self esteem;

• Many service providers are not adequately trained to address the special needs of LGBT clients. Domestic violence service providers who generally work with heterosexual survivors may have more difficulty in differentiating between the LGBT batterer and survivor.



Further helpful resources


Lee Vickers, The Second Closet: Domestic Violence in Lesbian and Gay Relationships: A Western Australian perspective (1996)
The New York State Lesbian, Gay, Bisexual, Transgender and Queer Domestic Violence Network
LA Gay and Lesbian Center Partner Abuse/Domestic Violence
American Bar Association Commission on Domestic Violence
Janice Ristock and Norma Timbang, Relationship Violence in Lesbian/Gay/Bisexual/Transgender/Queer [LGBTQ] Communities 2005
Brad Gray – “Community Awareness Campaign: Same Sex Domestic Violence”

Planning your future

My colleague Karen Gough and I recently presented a paper on Planning your Future at the 5th Health in Difference Conference 07 in Brisbane. Here it is:


The Basics
Australia is a Federation comprised of six States and the Commonwealth. There are also two Territories which have limited self-government, the Northern Territory and the Australian Capital Territory.

Except for specific powers given under the Commonwealth Constitution to the Commonwealth Parliament or referred from a State to the Commonwealth, the power to legislate generally is contained at the State level.

Family law is thus a mish mash of Commonwealth and State legislation :-

Topic Commonwealth State/Territories
Property Settlement – married couples Family Law Act
Property Settlement – heterosexual de facto couples and same sex couples Part 19 Property Law Act 1974 (Qld) and equivalents in other States and Territories
Parenting Orders Family Law Act
Spousal Maintenance
- Married Couples
Family Law Act
Applies in some States/Territories only, e.g. NSW. Does not apply in Queensland.
Child Protection Child Protection Act 1999 (Qld) and equivalents
Domestic Violence Domestic and Family Violence Protection Act 1999 (Qld) and equivalents
Adoption Adoption of Children Act 1964 (Qld) and equivalents
Child Support Child Support (Assessment) Act and Child Support (Registration and Collection) Act
Property Entitlements

I’m thankful to Brisbane practitioner, Peter Sheehy, who prepared a recent paper on the comparison between entitlements under the Family Law Act and that under Part 19 of the Property Law Act (Qld) which is set out in the table below.

Concept
Married Couples De facto couples

Availability of agreements before the start of living together/marriage

Binding Financial Agreement under section 90B of the Family Law Act


Must be entered into before the marriage


Strict formalities to make them binding eg independent legal advice certificates



Once binding they may prove difficult to set aside
Cohabitation Agreement under the Property Law Act Part 19


Can be entered into at any time even after relationship commences

Less onerous requirements – need only be witnessed by a solicitor or JP (Qualified) – independent legal advice not required but considered by lawyers as essential

Cohabitation Agreements can be “varied” if serious injustice results from enforcement, or if impracticable to carry out arising out of circumstances since the making of the agreement.


After Breakdown/separation
Children’s issues – with whom children live and spend time

Family Law Act governs
Property Law Act governs

After Breakdown/separation
Children’s issues – Child Support

Child Support legislation (Cth)governs
Child Support legislation (Cth)governs

Parties

Heterosexual couples
Heterosexual + same sex couples

After Breakdown/separation
Spousal maintenance


Available under Family Law Act for up to 12 months after Divorce Order

No partner maintenance provisions in Queensland. In other States, such as NSW spousal maintenance can be obtained.

After Breakdown/separation
property settlement



Must be commenced within 1 year of Divorce Order becoming absolute or leave to proceed if out of time.
Must be commenced within 2 years of end of relationship if relying on Property Law Act or extension of time to bring application is needed

Access to Court for relief only if relationship has existed for over 2 years, or earlier access to the Court if substantial contributions or children in the relationship

Ability to seek relief under common law concepts in addition to or in the alternative to Property Law Act statutory regime.


Consideration that the Court has in determining a property settlement

Family Law Act governs




Large body of reported cases for guidance

Property Law Act governs but provisions somewhat mirror Family Law Act provisions

Each of the 8 State and Territories have come up with a different version of inventing the wheel. In NSW, for example, there is much more emphasis on financial contributions than under the Family Law Act. Conflict as to what powers to be transferred to Commonwealth for heterosexual couples, same sex couple not being transferred.

Few reported cases

Self ordering availability to settle matters

Can use Financial Agreements to finalize matters but subject to same strict formalities as for all Financial Agreements.

Can be set aside.







No Capital Gains Tax relief Roll-over relief yet available – only available for transfers under a Court Order

Stamp Duty - sometime an inconsistent use of exemption from stamp duty applied by OSR assessors

Separation Agreements available – less onerous formalities



Can be “varied” if serious injustice results from enforcement, or if impracticable to carry out arising out of circumstances since the making of the agreement.

No Capital Gains Tax relief Roll-over relief yet available – only available for transfers under a Court Order

Stamp Duty relief specifically available under Duties Act (Qld)


Variation or setting aside Court Orders


Court Orders can be set aside – section 79A – fairly difficult
Court Orders can be varied or set aside – similar terms to Family Law Act section 79

Splitting superannuation Split under Family Law Act Cannot be split
Which court hears property settlement? Family Court or Federal Magistrates Court State Courts- in Queensland either Supreme or District Courts
Recognition of both parties as parents on birth certificate Matter of course Matter of course for heterosexual couples. Not possible in all States except WA, ACT, NT (for lesbian couples). Possible to have order under Family Law Act as to parental responsibility


Because there are eight different systems dealing with property settlement Australia wide then there can be disputes about jurisdiction. This can make substantial differences. There are very few reported cases on point. An unreported case is that of BVJ decided by Chief Justice Paul De Jersey in the Queensland Supreme Court in 2005. The de facto couple resided in Papua New Guinea. For one month every year they holidayed in Queensland. Two thirds of their property was held in Queensland, primarily owned by the de facto wife.

If the de facto husband were able to succeed under Part 19 of the Property Law Act (Qld), he would have been entitled to a substantially greater sum than he would have done had he made separate claims in the Papua New Guinea Supreme Court and in the Queensland Supreme Court relying on common law claims.

The Supreme Court held that the issue for jurisdiction was where the parties resided, not where the property was located, upholding the de facto wife’s objection to jurisdiction and dismissing the claim. Disclosure: Stephen acted for the de facto wife.

The Howard Government has proposed that there be national de facto property laws and that this be exercised by the Family Court of Australia (and in Western Australia, the Family Court of Western Australia) and the Federal Magistrates Court of Australia.

No bill has yet come to light that I’m aware of although it is proposed to be put before the parliament this year.

The Commonwealth has declined to include same sex couples in this transfer with the result that States like New South Wales and Queensland have passed legislation allowing the referral, although their preference stated in the legislation is to allow a referral of all powers whereas South Australia and Western Australia have refused to transfer the power at all. Thus, we will not only have the situation of jurisdiction to contend with but also the nature of the relationship so that if parties are in a heterosexual de facto relationship in Queensland or New South Wales, for example, and they wish to deal with property settlement, it will be dealt with under Commonwealth legislation in the Family Court or the Federal Magistrates Court but if they are in a same sex relationship it will be dealt with using State legislation in a State Court with all the existing jurisdictional problems.

Planning Your Future

If you are entering into a relationship, then you ought to consider obtaining independent financial advice from a Financial Planner.

You should:

• Have an up to date Will that reflects your current wishes. Wills are cheap and easy;
• Have an Enduring Power of Attorney;
• Consider that the beneficiaries of any life insurance or superannuation policy reflect your current wishes;
• Consider whether you should enter into a cohabitation agreement or similar

Building Family

As is set out in the table below, if you are in a same sex relationship and you are considering having children – get legal advice. You are walking into a mine field. There are no ifs, buts or maybes about this one.

The law is way behind how people are organising their lives.


Topic Married couples De facto/same sex
Recognition of both parties as parents on birth certificate Matter of course Matter of course for heterosexual couples. Not possible in all States except WA, ACT, NT (for lesbian couples). Possible to have order under Family Law Act as to parental responsibility
IVF Allowed Allowed for heterosexual childless couples, not for lesbians
Intestate claim on estate by spouse Succession Act Qld- no difference if married, not married Succession Act Qld- no difference if married, not married. All other States similar except SA which is more restrictive
Protection Orders for domestic violence Domestic and Family Violence Protection Act Qld- orders ordinarily made in Magistrates Courts. Domestic and Family Violence Protection Act Qld- orders ordinarily made in Magistrates Courts- spousal relationships including same sex relationships. Intimate personal relationships (like enmeshed dating relationships), informal care relationships (such as unpaid HIV carers) and family relationships (covering senior abuse, or abuse from adult children) also included

Case Examples

Re Patrick (2002)

In January 1998, a gay father entered into an agreement with the mother and her lesbian partner to provide sperm so that the mother could be artificially inseminated. After 27 or 35 separate attempts, the mother became pregnant. During the course of the pregnancy, the parties had a falling out as to the father’s role. In considering the father’s application to spend time with Patrick, the question was whether a sperm donor, known or unknown was a “parent” under the Family Law Act. The Court held that the father was not a “parent” but then went on to hold that Patrick should spend time with his father.
The Court held:

“It is time for State laws to be enacted to make available to lesbian women and their known donors a well regulated scheme with all the safeguards, medical and otherwise, available to heterosexual couples. There is no doubt that the parties in this case would have benefited from such services and may not be in the position they are today had they been able to access counselling currently available to heterosexual couples and “given the diversity of gay and lesbian families and the varying roles donors play in the lives of children conceived using their donated sperm, the Commonwealth parliament needs to reassess Section 60H of the Family Law Act and to consider the ramifications of its application in cases such as this. Whilst the legislature may face unique challenges in drafting reform that acknowledges and protects children such as Patrick, and the family units to which they belong, this is not a basis for inaction.”




B v J (1996)

R and J were in a lesbian relationship. In 1987, R contacted B, who was a friend of theirs, and asked whether B would provide sperm with which R would inseminate J. All three agreed that if he did so he would not under any circumstances be liable to provide child support for the children or have any future parenting obligations with respect to them. After two occasions of artificial insemination, J became pregnant.

In 1993, they repeated the process and a second son was born. B had played no substantial role in the lives of either of the children although he was registered as the father of the children on their birth certificates.

J subsequently made application for B to pay child support.

In considering the provisions of the Family Law Act to deal with artificial insemination the court held:
“It seems clear that there is no basis in the relevant legislation for distinguishing between anonymous and known donors of semen or ova. Were it the intention of the legislature that donors of semen or ova who are known to the recipient, or were even in a form of ongoing relationship with the recipient …. were to be treated differently from anonymous and otherwise unrelated donors, that intention could easily have been expressed”

and therefore found that B was not a “parent” within the meaning of the Child Support Assessment Act and was therefore not liable to pay child support.

ND v BM (2003)

In 1998, the mother (BM) told the father (ND) that she wanted to have a child and was looking for a sperm donor. At meetings with BM and her lesbian partner, they both emphasised that they did not want him to have any legal rights to the child and the child would not be advised that he was the biological father. He said that he would not seek any parental role and would not be responsible for the financial support of the child. They entered into an agreement that provided he would have no legal rights to the child and in the event of separation, the lesbian partner would support the child.

There was no artificial insemination but conception was “in the usual and customary manner” by vaginal intercourse. The Court held that ND was the parent, that the right to seek child support cannot be waived and therefore ND had to pay child support.

Re Mark (2003)
Mark was born to a surrogate mother in the USA with the sperm of Mr X and an anonymously donated ova. Mr X and Mr Y were gay partners and they considered that they were the fathers of Mark. They wanted orders from the Family Court that jointly they were responsible for parenting Mark.
The court disagreed with the conclusions of Re Patrick and tentatively found that Mr X may well be Mark’s father within the meaning of the Family Law Act. The court then made orders that Mr X and Mr Y be jointly responsible for parenting Mark.

Kevin and Jennifer (2001)
The Family Court recognised that a marriage between a post-operative female to male transgender (Kevin) and a woman, Jennifer, was valid.

Dilemmas of gay marriage

I recently presented a paper at the 5th Health in Difference conference 07 in Brisbane on the dilemmas of gay marriage.

Here it is:

Dilemmas of Gay Marriage by Stephen Page and Karen Gough

“Life, Liberty and the Pursuit of Happiness”
Thomas Jefferson, in the American Declaration of Independence 1776, could not have put the dilemma any better than that what people want is to have control over their lives, their liberties and to pursue happiness. The principal dilemma is whether to pursue marriage or to pursue a marriage-like relationship.

Which approach should be taken – to have marriages or to have relationships recognised as civil unions?

Heterosexual Couples

Until the 1960’s, the position for heterosexual couples was clear – if you were a couple, you were married. If you were not married, and you were living as though you were husband and wife, you were then considered to be living in sin. Attitudes only changed in the 60’s and 70’s so that then there was recognition that you were either living in a de jure marriage (marriage as a matter of law) or a de facto marriage (marriage as a matter of fact).

What we do know is that whilst the popularity of marriage amongst heterosexual couples has waxed and waned, there has certainly been a large increase the number of de facto couples as proportion of overall heterosexual relationships.

The Choice for Same sex Couples

Same sex couples do not have the same choice. If a heterosexual couple chooses to marry, the couple has all the recognition that the State can give that relationship pursuant to the Marriage Act.

A same sex couple, on the other hand, cannot seek that recognition. Whilst living in a de facto relationship, they can register their relationship in Tasmania and now it appears the Northern Territory and possibly Victoria, and maybe the ACT, but their relationship cannot be recognised as a marriage.

If they choose to marry overseas, for example, in Canada, then by virtue of the terms of the Marriage Act their relationship cannot be recognised in Australia.

Therefore, bizarrely, if one of the parties married twice that party could not be prosecuted for bigamy in Australia if one or both of those marriages were a same sex marriage.

Why the push for marriage?

Some countries, such as The Netherlands, have recognised gay marriages without considerable heat and light whereas in other countries, particularly the United States, there has been a great debate about whether or not same sex couples should be entitled to marry.

Amongst gay rights activists, there seem to be two schools of thought:

(a) Those wanting relationship recognition and the right to marry the person of their choice; and
(b) Those who point out the clear difference in law and rights given to those who are married as against those who are not.

From the political viewpoint, politicians recognise that it is much easier to alienate voters than to gain voters. On the one hand, some politicians might want to give substantial rights to gay and lesbian people, but on the other, politicians don’t want to be seen as attacking the sanctity of the traditional notions of marriage.

New Jersey probably shows the debate in the microcosm in Lewis v Harris (2006) . The New Jersey Supreme Court held that barring same sex couples from the rights and benefits of marriage violated the constitutional promise of equality. The Court gave the New Jersey legislature a deadline of 180 days to correct the violation, giving the legislature the option of legislating for gay marriage or for civil unions. The legislature chose to create the separate status of civil unions.

Last week the New York Times reported a potentially ground breaking legal battle over Connecticut’s exclusion of same sex couples from the State’s marriage law.

A lawyer representing eight same sex couples led a spirited attack on Connecticut’s refusal to grant gay couples the freedom to marry. He challenged the notion that civil union laws are a constitutionally adequate alternative. His argument was laced with references to Plessy v Ferguson, the US Supreme Court’s notorious 1896 decision which justified racial segregation under a deplorable standard of “separate but equal”. Although startling, the analogy is apt. The New York Times editorialises that:
“in establishing civil unions two years ago, Connecticut law makers created a separate and inherently inferior institution that continues to deny gay couples the quality they seek and deserve.
Connecticut would seem a particularly hospitable place to advance this equality claim. In addition to requiring equal treatment for individuals in comparable circumstances, and barring sex discrimination, Connecticut’s constitution explicitly forbids gender based “segregation”.
State lawyers answer that the basis for the exclusion is not gender but sexual orientation, a category not covered by existing anti-discrimination provisions. That is true, but forbidding marriages when one partner is the wrong gender still adds up to sex discrimination. The State also asserts that the civil union law grants all the rights of marriage to same sex couples, and any difference amounts to “a difference in name alone”. A trial court judge bought that argument and dismissed the case last year, saying the plaintiff suffered no legal harm.
Saying a civil union is the same as marriage does not make it so. Connecticut’s claim that the two terms are alike merely underscores the bottom line question: Why relegate a minority group to a separate category?
The court cases help stall this issue in Connecticut’s legislature. But if the ruling that goes against the couples involved, the legislature will have a duty to revisit the matter. A law that allows civil unions but not marriage is preferable to denying benefits and recognition to same sex couples. But no one should confuse it with equality.”

Traditional Notions of Marriage

The classic definition of marriage as adopted in section 5 of the Marriage Act 1961 “means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” The traditional notions of marriage have meant:

• It is a monogamous union, for life;
• Recognised by God and by the State;
• Of a heterosexual nature only;
• Includes the procreation of children.

The world has changed since 1961, but:
• In some churches gay and lesbian marriages would be celebrated;
• It is no longer the case, as a matter of law, that one of the parties must be genetically male and one of the parties genetically female for the marriage to be of a heterosexual nature. In the marriage of Kevin and Jennifer (2001) , the Family Court declared that the marriage between Jennifer (who was female) and Kevin (who was genetically female but recognised in every way as male, including having had gender reassignment surgery), was valid;
• Many married couples either cannot have children or, for a variety of reasons including careers, finances or it is a second or later marriage, choose not to have any children in that marriage.

Separate but equal
There are some gays and lesbians who do not want ever to be married and say very clearly that they do not want the benefit of other gay and lesbians to marry because of the separateness of the community. Nevertheless, anecdotal reports indicate that for younger gays and lesbians, there is an increasing desire to be able to be the same as everyone else including:
• having children
• having a career including any material benefits that they accumulate in their lives and
• the ability to have their relationship recognised (if they choose) by friends, family, the State and, if necessary, by God – by way of marriage.

We have set out below the differences that currently exist in law, at first between married and de facto couples and then between heterosexual and same sex couples

Part of the table was originally prepared by another Brisbane solicitor, Peter Sheehy. The table represents generalities only:

Concept
Married Couples De facto couples

Availability of agreements before the start of living together/marriage

Binding Financial Agreement under section 90B of the Family Law Act


Must be entered into before the marriage


Strict formalities to make them binding eg independent legal advice certificates



Once binding they may prove difficult to set aside
Cohabitation Agreement under the Property Law Act Part 19


Can be entered into at any time even after relationship commences

Less onerous requirements – need only be witnessed by a solicitor or JP (Qualified) – independent legal advice not required but considered by lawyers as essential

Cohabitation Agreements can be “varied” if serious injustice results from enforcement, or if impracticable to carry out arising out of circumstances since the making of the agreement.


After Breakdown/separation
Children’s issues – with whom children live and spend time

Family Law Act governs
Property Law Act governs

After Breakdown/separation
Children’s issues – Child Support

Child Support legislation (Cth)governs
Child Support legislation (Cth)governs

Parties

Heterosexual couples
Heterosexual + same sex couples

After Breakdown/separation
Spousal maintenance


Available under Family Law Act for up to 12 months after Divorce Order

No partner maintenance provisions in Queensland. In other States, such as NSW spousal maintenance can be obtained.

After Breakdown/separation
property settlement



Must be commenced within 1 year of Divorce Order becoming absolute or leave to proceed if out of time.
Must be commenced within 2 years of end of relationship if relying on Property Law Act or extension of time to bring application is needed

Access to Court for relief only if relationship has existed for over 2 years, or earlier access to the Court if substantial contributions or children in the relationship

Ability to seek relief under common law concepts in addition to or in the alternative to Property Law Act statutory regime.


Consideration that the Court has in determining a property settlement

Family Law Act governs




Large body of reported cases for guidance

Property Law Act governs but provisions somewhat mirror Family Law Act provisions

Each of the 8 State and Territories have come up with a different version of inventing the wheel. In NSW, for example, there is much more emphasis on financial contributions than under the Family Law Act. Conflict as to what powers to be transferred to Commonwealth for heterosexual couples, same sex couple snot being transferred.

Few reported cases

Self ordering availability to settle matters

Can use Financial Agreements to finalize matters but subject to same strict formalities as for all Financial Agreements.

Can be set aside.







No Capital Gains Tax relief Roll-over relief yet available – only available for transfers under a Court Order

Stamp Duty - sometime an inconsistent use of exemption from stamp duty applied by OSR assessors

Separation Agreements available – less onerous formalities



Can be “varied” if serious injustice results from enforcement, or if impracticable to carry out arising out of circumstances since the making of the agreement.

No Capital Gains Tax relief Roll-over relief yet available – only available for transfers under a Court Order

Stamp Duty relief specifically available under Duties Act (Qld)


Variation or setting aside Court Orders


Court Orders can be set aside – section 79A – fairly difficult
Court Orders can be varied or set aside – similar terms to Family Law Act section 79

Splitting superannuation Split under Family Law Act Cannot be split
Which court hears property settlement? Family Court or Federal Magistrates Court State Courts- in Queensland either Supreme or District Courts
Recognition of both parties as parents on birth certificate Matter of course Matter of course for heterosexual couples. Not possible in all States except WA, ACT, NT (for lesbian couples). Possible to have order under Family Law Act as to parental responsibility

IVF Allowed Allowed for heterosexual childless couples, not for lesbians
Intestate claim on estate by spouse Succession Act Qld- no difference if married, not married Succession Act Qld- no difference if married, not married. All other States similar except SA which is more restrictive
Protection Orders for domestic violence Domestic and Family Violence Protection Act Qld- orders ordinarily made in Magistrates Courts. Domestic and Family Violence Protection Act Qld- orders ordinarily made in Magistrates Courts- spousal relationships including same sex relationships. Intimate personal relationships (like enmeshed dating relationships), informal care relationships (such as unpaid HIV carers) and family relationships (covering senior abuse, or abuse from adult children) also included


Other legal issues affecting LGBTIQ people

Issue Commonwealth States
Relationship recognition
Marriage Act - heterosexual couples only.
Tasmania: civil union register.
Victoria: civil union register proposed
ACT: Commonwealth vetoed and will veto civil union register ACT has domestic partnerships
NT: domestic partnerships
Age of consent Human Rights (Sexual Conduct) Act : Sex between consenting adults (18 or over) in private, regardless of gender or sexual orientation can not be outlawed ACT: 16
NSW: 16 , 18 if under care of offender
NT: 16, 18 if under care of offender
Qld: 16, except for anal sex 18
SA: 17, 18 if under care of offender
Tasmania: 17, but variable if no anal sex
Victoria: 16, 18 if under care of offender
WA: 16, 18 if under care of offender
Transgender ACT, NSW, NT, Qld, Tas, Vic : birth certificate details can be altered if unmarried, but in Qld that condition does not apply to foreign married couples
SA, WA: general discretion as to change of name
Accident compensation N/A All States
Superannuation Unable to show spousal relationship. Need to show interdependent relationship, which is time consuming and may be difficult. Dopes not extend to Commonwealth employees, eg public servants, ADF N/A
Surrogacy N/A Commercial surrogacy illegal in ACT, Qld, SA, Tas, Vic
Non-commercial surrogacy illegal in Qld, Tas, SA
Adoption Proposed ban on overseas adoptions Not possible except in WA. Some possibilities in ACT, NSW, Tas
Parental leave Workplace Relations Act only covers maternal and paternal leave Qld: no discrimination Vic: Commonwealth law applies. Not known about other states.
Social security As same sex relationships are not recognised for payments, this results in positive discrimination!
Tax There are a number of benefits to heterosexual couples not available to same sex couples
Medicare Same sex couples miss out on some reduced rates for Medicare/recognition as family.
PBS Extends to heterosexual but not same sex couples/families.
Workers comp Does not extend to same sex couples Extends to same sex couples
Veterans Benefits “Partner” must be of opposite sex
Anti-discrimination No Yes





In a nutshell:

• There is little discrimination at the State level other than that as to adoptions;
• At the Commonwealth level there is considerable discrimination;
• The Human Rights and Equal Opportunities Commission reported to the Commonwealth Attorney-General, Philip Ruddock last week as to how, if at all, the Commonwealth legislation ought to be altered to remove the discrimination. That report has not yet been released. No doubt when Graeme Innes speaks tomorrow, we will all be enlightened. There has also been a push by, amongst others, Warren Entsch, the Member for Leichhardt, to remove the discriminatory provisions of Commonwealth Law. John Howard is reported as referring the question for costing.

In summary

Same sex couples cannot marry now in Australia. There is no dilemma about getting married as there is no choice open. There are clear legal benefits in marrying as opposed to not.

Thursday, 5 July 2007

ALP reaction to HREOC report

Labor Welcomes Human Rights and Equal Opportunity Report on Same-Sex Entitlements

by Shadow Attorney-General Joe Ludwig:

I congratulate HREOC for their detailed report: "Same-Sex: Same Entitlements" *
This report - produced after 14 months of consultation and work - is an important milestone.
It has shone a spotlight on Federal laws which deny same sex couples in Australia access to basic entitlements like tax concessions, superannuation, death benefits, carer leave, workers' compensation, veterans' entitlements - all of which are available to heterosexual couples under Federal laws.

Same-sex couples get fewer entitlements, less workers' compensation, fewer tax concessions, less health care support, less superannuation and pay more for residential aged care than heterosexual couples in the same circumstances.

Action by the Government is long overdue.
It is disappointing that the Howard Government has not moved already to remove discrimination from Federal law on financial and work related entitlements. The States and Territories have already done so.

The Report found there are many Federal laws which discriminate against same sex couples in areas of financial and work related entitlements. Many of the Federal laws also discriminate against the children of same-sex couples and fail to protect the best interests of the child.

Federal Labor has a long-standing commitment to remove discrimination from Federal legislation.
By contrast the Federal Government has made no commitments in this area.
Indeed, the Howard Government has actively undermined attempts to create nationally consistent non-discriminatory legslation - as evidenced by Mr Ruddock rejecting offers by the States to refer powers to the Commonwealth in the area of de facto relationships, which would allow an easier resolution of property disputes.

ALP pledges state-based relationship recognition

The Labor party is committed to equality for gay men, lesbians, and same sex couples and, if elected, will remove provisions which discriminate on the basis of sexuality.

That means ending discrimination in the areas of taxation, superannuation, social security benefits, the Medicare Safety Net, immigration, veteran's entitlements and all other areas (aside from the Marriage Act). All practical, day-to-day discrimination faced by the gay and lesbian communities will be removed from our laws.

At the party's National Conference in May, Labor formally committed to a nationally consistent system of state-based relationship recognition. The schemes will cover a range of non-marital relationships including same-sex relationships, de facto heterosexual relationships and certain carer relationships.

These schemes would simply act as a means by which any de facto couple could register their relationship for the purposes of recognition by government.

Such schemes are not civil unions or gay marriage. There is no ceremony involved and they would not come under the marriage poser in the Constitution, nor affect the definition of marriage in the Marriage Act 1961 as "a voluntary union entered into by a man and a woman to the exclusion of all others, for life".

Source: ALP

Tuesday, 3 July 2007

Transgender Legal Defense Debates Family Research Council

HREOC calls for end of discrimination against same sex couples

Simple changes could end discrimination for thousands of Australian couples
Changing the definitions describing de facto relationships in relevant federal laws could help end daily discrimination suffered by more than 20,000 same-sex couples in Australia, according to a report by the Human Rights and Equal Opportunity Commission (HREOC), tabled in Federal Parliament.

The Same-Sex: Same Entitlements Report, being officially launched in Sydney by Australia’s Human Rights Commissioner Graeme Innes AM, found that 58 federal laws denied same-sex couples and their children basic financial and work-related entitlements available to opposite-sex couples and their children.

“As one man told us during our Inquiry - same-sex couples are first class tax-payers but second class citizens - and we have certainly found this to be true,” Mr Innes said.

“This discrimination is completely unfair. There are 58 federal laws breaching the most fundamental of human rights principles – non-discrimination, equality before the law and the best interests of the child.”

Mr Innes pointed out that same-sex couples often pay more tax than opposite-sex couples because of discrimination in tax law, yet they cannot expect the same entitlements in employment, workers’ compensation, veterans’ entitlements, health care subsidies, family law, superannuation, aged care and immigration law.

“Simple amendments to the definitions in a raft of federal laws would end this discrimination,” Mr Innes said.

President of HREOC, John von Doussa, who also led the Inquiry, said the discriminatory laws also have a negative impact on children.

“The Inquiry found that the best interests of children would be better protected if federal, state and territory laws changed to recognise the relationship between a child and both parents in a same-sex couple,” Mr von Doussa said.

The Same-Sex: Same Entitlementsreport is based on HREOC’s 2006 National Inquiry into discrimination against people in same-sex relationships in the area of financial and work-related entitlements. The Inquiry held public hearings and community forums around Australia and received 680 submissions covering a range of topics, many of which described first-hand the impact of discriminatory laws on same-sex couples and their children.

To read the whole report,
click here.

Monday, 2 July 2007

Working on your marriage- at work

Working on Your Marriage -- at Work
Realizing That a Happy Staff
Is More Productive, Employers
Offer Relationship Training
By RACHEL EMMA SILVERMAN

People often complain they are married to their jobs. Now, some companies are helping employees work on their marriages, on the job.

A small but growing number of companies have implemented training programs designed to help employees strengthen their marriages or other personal relationships. Some companies are motivated by religious values to encourage strong marriages and families. But now, amid evidence that divorce and relationship stress can make workers less efficient, more companies have begun offering marriage training programs with an eye to keeping their businesses running more smoothly and profitably.

Some employers are offering their workers free marriage or relationship education classes at corporate retreats, with spouses encouraged to attend. Others sponsor lunch-and-learn sessions at which workers hear speakers on relationship skills, like more diplomatic ways to fight with their spouses, or they provide audio programs with relationship tips for workers to listen to while driving. At some companies, the programs are aimed mainly at employees who are being transferred, which can create friction in a marriage.

After an executive at Gregg Appliances Inc., an appliance and electronics retail chain based in Indianapolis, became concerned that workers were being unproductive or leaving the company because of marital stresses, the firm began sponsoring marriage training classes at corporate retreats in Florida for its general managers and their spouses. This year's session, which focused on finances, featured a version of the "Newlywed Game," so couples could gauge how well they really knew each other's financial habits.

Ed Koplin, a principal at X-nth Inc., an engineering firm based in Orlando, Fla., wanted to help his employees learn how to relate better to each other and to those outside of work. One important skill: how to listen more effectively, so the other party feels more understood. "These are life skills that will help you at work and help you at home," says Mr. Koplin, who works at the firm's Baltimore office.

Howard Yocum, a senior electrical engineer at X-nth, says the course has helped prevent his domestic arguments from escalating into bigger fights. "Instead of using fight-talk, I change it into more of a discussion-type thing," Mr. Yocum says.

Marriage training sessions are part of growing trend of employers offering programs -- from weight-loss regimes to childcare -- aimed at helping workers become happier, with the additional goal of making them more industrious.

Productivity lost from marriage and relationship stress can cost employers some $6 billion annually, according to an estimate cited in a new report, "Marriage and Family Wellness: Corporate America's Business?" sponsored by the Marriage CoMission, a marriage strengthening advocacy group in Atlanta. Another study cited in the report found that in the year following divorce, employees lost an average of four weeks of work. (The report is available at http://www.marriagecomission.com/go/corporate.)

"Unhappily married employees decrease profitability. Those in failing relationships can hurt a company's bottom line, through higher distractions and absences, higher health-care costs and increased stress," says Matthew Turvey, a psychologist and co-author of the report.

The programs are generally free or highly subsidized for workers. For employers, lunch-and-learn sessions can cost several hundred dollars for speakers, while short courses on relationship issues can cost about $500 to $1,500. Marriage retreats can cost companies several hundred dollars or more per couple, depending on the venue. Many marriage trainers are psychologists or are certified to teach marriage skills through programs often established by psychologists or clergy members.

At annual conferences that Chick-fil-A hosts for its franchise operators, the Atlanta-based restaurant chain has seminars on topics such as "How to Divorce-Proof Your Marriage" and offers marriage counselors for individual sessions with couples. The company also makes available to its corporate staffers and franchisees and their spouses Christian marriage training sessions at a rural retreat in Georgia.

A recent attendee was Karen Rogers, a Chick-fil-A property management analyst who has been married for 17 years. "It's important to take time away together, to focus on that relationship," she says, adding that the session was in seminar form, not group therapy. "They make it very safe. You're not up there spilling the dirty marital laundry out in front of your co-workers." The session was based on television show "The Amazing Race," and included segments on creating marital "teams."

PRC, a sales outsourcing firm based in Plantation, Fla., recently hired marriage trainer Sheryl Kurland to lead lunchtime sessions on successful marriages and relationships in some offices. Ms. Kurland, an author and speaker on marriage issues, says her sessions have no religious overtones and are also open to gay and single employees. In her presentation, she includes four ways to handle arguments that work in most relationships. One idea is what she calls "your department, my department." If one spouse, say, never picks up the towels after a shower, you can nag him or her forever, or you can just decide to pick it up yourself. "End of subject, end of stress," says Ms. Kurland.

Workplace marriage programs can be controversial. Tim Gardner, who runs the Marriage Institute near Indianapolis, says several companies he has approached have been cool to his offers to teach courses because they fear marriage training programs could discriminate against single or divorced employees, or gay couples. Other companies say they have no business intruding in workers' personal lives.

Marriage trainers say their courses aren't marriage counseling, but courses that teach real skills, such as how to listen and communicate more effectively, and how to defuse disagreements before they escalate into full-blown conflicts.

"We're not talking about getting everyone in a hot tub and sharing all their problems," says Dr. Gardner. "It's a skills-based set that benefits all sides."

One thing Dr. Gardner teaches to clients such as Gregg Appliances is that couples should set goals in their marriage. Some ideas: set up a weekly date night or take a yearly vacation without the kids. Or set up 10 minutes a day just to talk and catch up, without focusing on scheduling or problem-solving or child-care logistics.

Some employees at CommScope Inc., a telecommunications-equipment maker based in Hickory, N.C., are working with Dr. Gardner on a relationship-skills program called "Marriage@Work." "When I first announced it to my region, people thought it was a little too touchy-feely," says Steve Scattaregia, a regional vice president for CommScope in Indiana. "I work for a company that has given me a lot of latitude to try stuff like this."

Source: Wall St Journal

Challenges of AI

A challenging article from the US:

Question: When is your father not your father? Answer: When he’s a sperm donor.

Artificial insemination begets children without paternity, with troubling cultural and legal consequences.

Aided by a lucrative sperm-bank service industry, an increasingly unmarried consumer base, a legal profession and judiciary geared toward seeing relationships through a contractual lens, and a growing cultural preference for individual choice without limits, AI is advancing a cause once celebrated only in the most obscure radical journals: the dad-free family.

Consider a case now before the Kansas Supreme Court. An unmarried woman in her early thirties decided that she wanted a child and asked a friend to be a sperm donor. He agreed, one thing led to another, which led to a syringe of his sperm, which led to the birth of twins. The mother says that she always intended to raise the kids alone and never wanted the friend involved in their lives. The donor says that he planned to be the twins’ father in name and practice. There is no written contract. What does the contemporary Solomon do?

Well, in a Kansas trial court, Solomon rules that without a contract the twins have no father. The man who provided half of the children’s genetic material has no more relationship to them than does the taxi driver who rushed their mother to the hospital when she went into labor. Now, assuming that the Kansas Supreme Court upholds the decision, the state of Kansas can celebrate adding two more fatherless children to its population, and Mom can rejoice by dressing her twins in bibs—available over the Internet—proudly announcing: my daddy’s name is donor.

You’d think that we had enough problems keeping fathers around in this country, what with out-of-wedlock births (over a third of all children are born to unmarried women, and, in most cases, the fathers will fade from the picture) and divorce (the average divorced dad sees his kids less often than he takes his car in for an oil change). But these days, American fatherhood has yet another hostile force to contend with: artificial insemination.

In the middle of the twentieth century, artificial insemination seemed as family-values-friendly as Dr. James Dobson himself. If a woman had trouble conceiving, doctors would inject her husband’s sperm directly into her uterus. Or, if the husband’s sperm count was low, physicians would enlist the help of medical students willing to provide their sperm. AI was rare, producing 5,000 to 7,000 American babies a year.

But today, technology, economics, and a liberalizing social climate have worked together to expand AI into brave new territory.

These days, anyone can buy sperm: married couples, gay couples, and single women; women on the AARP mailing list, women barely out of college, 40-year-old women who have tried desperately to find husbands and have no other hope of becoming mothers, and 20-something women who—well—just want to, that’s all; rich and famous women like Annie Leibovitz, Wendy Wasserstein, and Mary Cheney; and divorced third-grade teachers who live in modest two-bedroom condos and are fed up with men. Whoever.

The California Cryobank, the country’s largest, estimates that about 40 percent of its customers are unmarried women. The Sperm Bank of California says that two-thirds of its clientele are lesbian couples. Most professionals believe that about 1 million American children are the progeny of sperm donors—the large majority of them anonymous—with 30,000 more boosting the ranks each year.

Subtract the children born via AI to infertile married couples: that’s still a lot of fatherless kids.

Most fertility specialists probably never imagined themselves as building a new family order. They just believed that they were helping the unfortunate, a view that the joyful maternal testimonials filling sperm-bank websites support. But that doesn’t answer the question of whether spreading happiness automatically validates artificial insemination’s almost entirely unregulated march into the mainstream of American life.

In a more conservative time, lawyers joined—critics might say conspired with—doctors to contain the potential ambiguities of paternity and to bolster the social consensus that children should grow up with married parents. In 1973, the American Bar Association published the Uniform Parentage Act, a model state law that proposed that a woman’s husband automatically be deemed the legal father of her AI children—assuming that he had consented to the procedure and that a doctor had performed the insemination. The donor dad would be a legal cipher, just as he was a domestic one.

But with a growing number of AI cases involving single women and lesbian couples, the pretense of the donor’s nonexistence is no longer tenable, since there’s no father around. The issues surrounding the practice have grown vastly more complicated: Can a sperm donor be a father? Can his mother be a grandmother? Can a child conceived through AI inherit property from her biological father? Can a child have two mothers and no father? How about two mothers and a father? Can the lesbian partner of a biological mother have custody rights if the couple breaks up? Can she be required to pay child support? And, again, who are the grandparents?

Unfortunately, in the absence of any other authority, answering these questions has fallen to family court judges. In unwitting alliance with a fertility industry fiercely protective of anonymous gamete donation, the courts have given their imprimatur to two nonsensical biological conditions: children who have no fathers and fathers who have no children. The old Uniform Parentage Act had it that a donor had no paternal standing, because at the time the law needed to resolve the potential problem of two fathers: the donor and the mother’s husband. It should be obvious that in the case of a single or lesbian mother, the problem is quite different: there is no “other father.”

But it hasn’t proved obvious to most legal experts, who continue to revert to the Uniform Parentage Act formula: as long as a doctor performs the insemination or a sperm bank sells the sperm, the donor is not a father. This doesn’t simply mean that the child is fatherless in the way that, say, an orphan is fatherless. Rather, the child is born into an entirely new human circumstance. For, according to the law, he never had a father at all.

To justify this new “reality,” many legal scholars argue that we should reject biology as the basis of parentage in favor of the principle of “intentionality.” It’s the person—or persons—who planned the child who have parental rights.

However, intentionality is wildly inconsistent with the law’s traditional presumption of paternal responsibility. Say a man has a drunken one-night stand with a woman he meets in a bar. If she gets pregnant, the law sees him as a father, and he must pay child support for the next 18 years. But if a college student visits the local sperm bank twice a week for a year, produces a dozen children, and pockets thousands of dollars, he can whistle his way back to econ class, no cares, no worries.

And that’s just for starters. A woman participating in an online discussion group at the Donor Sibling Registry, a database for AI parents and children, describes how she and her lesbian partner decided to have a child together. After she became pregnant through a donor, the couple purchased a house and settled in to wait for the blessed event. But several months later, the partner lost interest and moved out, announcing that she no longer intended to become a parent. If it were the child’s father who pulled that stunt, no rational person would disagree: your baby, your responsibility, Bub. But in what sense is the partner a parent to a child she’s never seen, much less nurtured, and to whom she is biologically unrelated? Simply because for a few months she thought that she wanted to be a parent? And why should her intent prevail over other goods—in this case, the biological mother’s need to create a loving environment for the child, or—now here’s a radical idea!—the child’s interest in knowing her father?

As intentionality has come to supplant biology, the law, by pretending nature doesn’t exist, has not caught up with reality; it has pole-vaulted over it. A family court in Burlington County, New Jersey, recently put two women on a state birth certificate. Last year, Virginia issued a birth certificate for a gay couple that read “Parent A” and “Parent B.” Massachusetts officials proposed crossing out “Father” on the state’s birth certificate and replacing it with “Second Parent” (until then-governor Mitt Romney nixed the plan). Many legal scholars are now proposing that courts move beyond the “heterosexist model” entirely. Why not put three parents—or four, for that matter—on the birth certificate? This past January, an Ontario court did just that. Intentionality, it seems, can accomplish almost anything.

The very premise of AI is that, apart from their liquid DNA, we can will fathers out of children’s lives. And insofar as their Y chromosome is significant, they are completely interchangeable with other “male role models.”

To produce and rear the next generation, women are still a vital presence—at least until artificial wombs become part of the artificial-reproduction toolbox.

Sources:
Oklahoma Family Law Blog, "The Incredible Shrinking Father" by Kay Hymowitz.