Thursday, 26 June 2008

PFLAG Brisbane 2020 Summit

I had the privilege of attending the PFLAG Brisbane 2020 summit on Saturday, which as part of Brisbane Pride discussed topics challenging the LGBT community, such as youth homelessness, suicide, increased rate of HIV infections, health and support for women, and alcohol and drug use.

An idea of Qnews, for whom I write, it was enthusiastically endorsed by Prisbane Pride, and championed by PFLAG stalwart Shelley Argent, and Dr Wendell Rosevear amongst others.

I will post the outcome of the summit when it comes to hand, but in the meantime, here are some happysnaps taken by Sue Kentlyn:

PFLAG Brisbane 2020 summit

PFLAG Brisbane 2020 summit working group

PFLAG Brisbane 2020 summit organiser Shelley Argent

Dr Wendell Rosevear

Kath Wilson

Hilary Knack

Yours truly, animated as ever

Wednesday, 25 June 2008

De Facto Property Laws Now on the Way

Robert McClelland
Confirming the prediction of recent reports, Commonwealth Attorney-General Robert McClelland has now introduced changes to the Family Law Act to enable property disputes between de facto partners to be dealt with under the Family Law Act and heard in the Family Court or the Federal Magistrates Court.

Robert McClelland describes these changes as landmark, and that is truly the case.

Assuming that they are passed by the Senate, the changes will come into force on a date to be fixed, will apply to both heterosexual and homosexual relationships, but will only apply to de facto relationships (so that some other relationships such as those between carers which may be covered under ACT legislation, for example)that have broken down after the legislation has passed.

The significance of the changes is profound:
- by going to the Family Court of Australia, or the Federal Magistrates Court, people in dispute will be before specialist courts who deal with family law disputes day in, day out, as opposed to the State courts, which deal with this type of dispute relatively rarely
- it is likely that the results for de facto relationships will mirror those for married couples, as opposed to some State systems, such as Queensland and NSW where it appears that economic contributions weigh more heavily than non-economic contributions, meaning that like for like some people end up with less in the State courts than they would have in the Family or Federal Magistrates Courts
- there are to be mirror provisions for binding financial agreements for de facto couples, as there are now for married couples
- costs and confusion is likely to be less, with parties possibly in 2 courts instead of 3. If de facto partners now have a fight about children, property and domestic violence, they may have a fight in 3 courts- children in the Family or Federal Magistrates Courts, property in State courts, and domestic violence proceedings in the state Magistrates or Local Courts. Now children and property proceedings may be able to be run at the same time in the same court- causing a considerable saving of cost and time and reducing confusion.
- super splitting will be able to apply to de facto couples, which can only happen rarely with de facto couples currently
- spousal maintenance will be able to be paid. Currently in some jurisdictions, eg Queensland, there is no basis for spousal maintenance.

However there is a big IF. The Bill requires the co-operation of the States to agree to refer powers. South Australia and Western Australia pointedly refused to do so, it seems primarily because the Howard government refused to include same sex couples in the changes. There are tricky parts of the Bill depending on whether or not a person comes from a participating jurisdiction.

This is what Robert McClelland had to say:

The Rudd Government has today introduced landmark legislation to allow for de facto couples to access the federal family law courts on property and maintenance matters. This implements a 2002 agreement between the Commonwealth, States and Territories at the Standing Committee of Attorneys-General.

“These reforms are long overdue. They will provide greater protection for separating de facto couples and simplify the laws that apply,” Attorney‑General Robert McClelland said.

Mr McClelland said, “Currently, de facto couples can access the federal family law courts for child-related proceedings but must go to State and Territory courts for property and maintenance matters. This duplication wastes time and money and places an unnecessary administrative and financial burden on de facto couples. Moreover, existing State and Territory laws on property and maintenance matters for de facto couples are inconsistent across Australia, meaning couples in different States and Territories have different rights”.

The amendments will apply to de facto relationships that break down after the amendments commence in the States that have referred power to the Commonwealth and in the Territories.

Mr McClelland said, “This honours a commitment in the Government’s National Platform to ensure that family law applies in a consistent and uniform way to de facto relationships. Consistent with the Government’s policy, the legislation will not discriminate between opposite-sex and same-sex de facto couples. Nothing in the legislation will alter marriage laws.”

“Separating de facto couples and their children have waited for six years for the Commonwealth to act. The Rudd Government has delivered this significant reform.”

Kerry Shine

Queensland Attorney-General Kerry Shine welcomes the changes:

Attorney-General and Minister for Justice Kerry Shine has welcomed the Rudd Government's introduction of landmark legislation into federal Parliament which will allow de facto couples, including same sex couples, access to family law courts on property and maintenance matters.

"I know that Queensland de facto couples have been waiting a long time for the introduction of this legislation and I congratulate the Rudd Government on its move," Mr Shine said.

"At the moment in Queensland de facto couples who separate must access two different jurisdictions with disputes about property dealt with in the Queensland courts and disputes about children dealt with in the Federal family courts."

Mr Shine said in 2003 Queensland referred to the Commonwealth the power to divide property in relation to same-sex and heterosexual de facto couples, however the Howard Government would not accept the referral in relation to same-sex couples.

"The previous Governmen t's decision not to accept Queensland's referral effectively denied those who had been involved in same-sex de facto relationships the opportunity to seek spousal maintenance and to have matters relating to children and property heard at the same time by one court.

"They were also denied the opportunity to seek binding orders in relation to the division of superannuation or access to the substantial service infrastructure, including mediation, supporting the Commonwealth family law jurisdiction.

"The Rudd Government has corrected that decision by stating the legislation introduced today will not discriminate between opposite-sex and same-sex de facto couples."

Mr Shine said if the legislation is passed it will have a major impact on court proceedings in Queensland.

"If de facto couples can have their property disputes heard in the Family Court this will significantly reduce the number of civil hearings heard in Queensland's courts, which will take further pressure off our system," he said.

"It will also benefit families who will not have to engage legal representation for two different court hearings."

Monday, 23 June 2008

Tasmanian Greens seek to allow gay marriage

On Friday the Tasmanian Greens announced that they would be seeking that Tasmania enact legislation to allow gay marriage.

If agreed to by the Labor Government, it is possible that Tasmania could allow people of the same sex to marry.

Currently, the law covering marriage is the Commonwealth Marriage Act. It was amended several years ago to be gender specific, so that marriage is defined as "between a man and a woman to the exclusion of all others for life".

How the Constitution works is that the Commonwealth Parliament is allowed to legislate under certain heads of power, for example, marriage and divorce. The Commonwealth Parliament doesn't have to, if it doesn't want to, and even if it does legislate, State laws are still valid unless the Commonwealth laws "cover the field" or specifically override State laws.

An example of where Commonwealth and State laws work side by side is in the slaughter of cattle in abbatoirs.

So the argument goes- if the Commonwealth does not specifically outlaw same sex marriage in its definition- there is nothing to prevent a State to legislate to allow same sex marriage.

Professor George Williams

This is the view taken by Professor George Williams, one of Australia's leading constitutional experts. Professor Williams, who has been asked separately to report on harmonising Australia's industrial relations systems, had this to say to the ABC in 2006, in response to the suggestion that the Marriage Act should be amended to exclude same sex marriages:

GEORGE WILLIAMS: I think they may have to amend it to achieve what they want and that is to remove any possibility of Territory or State same sex unions being called marriages, and that's because when we had the amendments in the Federal Parliament a year or two ago, they explicitly say that the Federal Marriage Act is about the marriage between a man and a woman and is not about same sex marriage.

My view actually is they've vacated the field. They've left open this gap for which the States and Territories might now enter to set up their own regime of marriage for same sex couples. If the Federal Government wants to avoid that possibility, I think they'll have to introduce another amendment that will say our law not only deals with heterosexual marriage, but specifically excludes the possibility of the States and Territories covering this other area.

Nick McKim

The Tasmanian Greens have taken this all to heart. This is what Deputy Leader Nick McKim had to say on Friday:

The Tasmanian Greens today announced an intention to table legislation to provide for same-sex marriage in Tasmania when the House of Assembly resumes on July 1st.

Greens Deputy Leader Nick McKim MP said that the Same Sex Marriage Bill 2008 is based on values like respect and tolerance, which he said most Tasmanians would share.

“If we are fair dinkum about removing discrimination we should give all Tasmanians access to the fundamental institutions of our society, including marriage,” Mr McKim said.

“There is no such thing as ‘mostly equal’, and until legislators provide same-sex couples with access to all civil institutions we will continue to discriminate against large numbers of people who deserve much better.”

“Recent progress on same-sex marriage in places like California has shown that there is nothing to fear and everything to be gained by this kind of progressive initiative.”

“Most Tasmanians share the values of tolerance and respect on which this legislation is based.”

“This legislation would grant rights not currently enjoyed by couples registered under Tasmania’s very good Relationships Act 2004, including equal rights to adopt.”

Mr McKim again released legal advice from leading constitutional expert Professor George Williams of the University of New South Wales that confirms that there is no constitutional barrier to a State legislating to create a same-sex marriage system.

Wednesday, 18 June 2008

Coalition moves same sex super changes off to committee

As promised, the coalition has successfully used its numbers in the Senate to slow down and have the same sex super changes referred to committee.

The Australian reports that the Senate's legal and constitutional affairs will examine the government bill, especially the definitions of ``couple relationship'', the ``child'' and ``child of a couple relationship'' and will hear evidence from a range of groups including the federal Attorney-General's Department, the Law Council of Australia and the relationship registries of Tasmania, Victoria and the ACT.

First gay marriage photos from California

Despite attempts to outlaw California, the reality is that same sex people are now getting married there,creating an impetus for permanent change.

One celebrity in now getting married suggests that a pre-nup might do the trick, although she did not seek one for herself and her partner.

One of the first weddings was that of Diane Olson and Robin Tyler who have attempted to marry at the Beverly Hills courthouse for the past eight years, each time being denied. LAist has lots of photos of the happy couple. They have been together 12 years.

For Trekkies, Mr Sulu, George Takei has now married his partner Brad Altman.

And not just celebrities. Florastine Hillis, 30, a county probation officer, and Asusena Montes, 32, a youth shelter worker, arrived with their 2-year-old daughter, Kayla in florence-Firestone to marry. Montes said, "We started hanging out more and decided to make a life together."

The ones to take the cake however are....

An iconic couple to now marry (again!)
are long lived and longtime lesbian and feminist activistsDel Martin and Phyllis Lyon, who have been together for over 50 years, were married in 2004, but then found that their then marriage was declared void. They have now married again, with San Francisco Mayor Gavin Newsom officiating.

Tuesday, 17 June 2008

US court upholds lesbian child custody case

The American Bar Association Journal is reporting that an appeal court in Virginia is upholding the right of a lesbian co-mother from Vermont to be involved in their daughter's life when the mother, who is now a devout Christian, is opposed to any involvement.

In Virginia, same sex marriages are considered void, but same sex civil unions are recognised in Vermont, where the two women came from.

Monday, 16 June 2008

Nelson wedging himself: Milne

Glenn Milne in the Australian suggests that Brendan Nelson is being wedged over the same sex super changes.

"WEDGE politics is back, and it goes by the name of same-sex couples. What it also goes to is the central tension running through Brendan Nelson's fraught leadership of the federal Liberal Party.

The wedge confronting Nelson on this issue is both internal and external. Internally it refers to his relentless and endless need to shore up support within the Right of the party in order to preserve his leadership against the juggernaut that is Malcolm Turnbull.

And externally it is grist to Labor's mill, cranking up the image of an Opposition Leader constantly forced to walk both sides of the street on social policy in order to remain electorally relevant, while struggling to survive factionally within his own caucus."

Sunday, 15 June 2008

California: county offices suddenly can't do marriage

Well, was it a Clayton's victory? You know, the victory you have when you don't have a victory?

Only last month the California Supreme Court pronounced that same sex marriage was legal and that efforts to stop it were discriminatory.

Then following the decision when opponents got their opposition to same sex marriage on the ballot, and tried to get a stay of the court's decision, the courtrefused . The court's position was clear- this is a fundamental human right, and should not be held up.

Opponents are now trying through a lower court to seek a stay of the decision.

Well now the Wall Street Timesreports that two county offices in California, Kern and Butte Counties are now saying that they will not issue marriage licences, effectively meaning that same sex couples in those counties may not be able to marry.

USA Today reports that Kern County official Ann Barnett says the increased demand for ceremonies would overwhelm her staff and pose office security risks. She made the announcement after learning she could not marry only couples of her choosing.

Gay groups urge Nelson not to delay

A coalition of LGBT human rights organisations has presented a letter to Opposition Leader, Brendan Nelson, asking him not to delay reform of superannuation laws to recognise same-sex couples.

The letter also sought a meeting with Dr Nelson and included case studies of same-sex partners for whom reform is very urgent.

Brendan Nelson and Shadow Attorney-General George Brandis have said that the Opposition will establish a Senate inquiry into reform to look at issues such as the recognition of interdependent relationships.

Debate on the inquiry will take place in the Senate next week.

The letter was jointly presented by groups attending Tuesday's annual consultation between non-government human rights organisations and the federal Attorney-General's Department.

The range of groups in attendance was broader than at previous consultations because Tuesday's consultation focussed on same-sex entitlements, and because of the hope for greater attention to LGBT issues under the new Federal Government.

Australian Coalition for Equality spokesperson, Rodney Croome, said LGBT community representatives raised a wide range of issues including same-sex couple access to the Family Court, the recognition of state-registered relationships, a national sexuality and gender identity discrimination law, nationally-consistent laws governing the recognition of gender identity, Australia's international advocacy on LGBT human rights, a national charter of rights, same-sex marriage, and a specific advisory committee on LGBTI issues.

"As someone who has previously attended these meetings I was really pleased to see so many LGBT community advocates participating and contributing. It's vital that we can continue to take our issues direct to government by engaging in these forums", Mr Croome said.

Rodney Croome

Present at the NGO forum were Demetra Giannakopolous, Victorian Gay and Lesbian Rights Lobby; Rodney Croome and John Kloprogge, Australian Coalition for Equality
Peter Furness and Alex Greenwich, Australian Marriage Equality; Emily Gray, NSW Gay and Lesbian Rights Lobby.

NSW Bill to amend 55 Acts now law

The New South Wales Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008 has passed the Upper House and has been assented to by the Governor in Council.

The Act, which is to amend 55 Acts to remove discrimination against same sex couples, allows for lesbian co-parents to be named on the birth certificates.

The changes, first announced by NSW Attorney-General John Hatzistergos in April,

John Hatzistergos

and approved by Human Rights Commissioner Graeme Innes as removing discrimination,

Graeme Innes

were amended in the Upper House to allow fathers to be named on those birth certificates if they wanted, and the amendments were agreed to by the Iemma Government.

The reforms have been welcomed by LGBT groups.

The changes commence on a date to be fixed.

Friday, 13 June 2008

Brandis: Opposition to delay superannuation changes

Brendan Nelson said recently that the Opposition would send the Government's superannuation changes to committee in the Senate.

Now Shadow Attorney-General, Senator George Brandis has confirmed that this might result in delays in the passage of the bill as late as September, and the Opposition may not guarantee any backdating to 1 July 2008.

Whilst there will be inevitably be criticism of this move, Brandis is clearly on the record for supporting equal rights .

NSW: Considering further review of Adoption Laws

Verity Firth
NSW Minister for Women, Verity Firth, during debate on laws to change 55 pieces of legislation including allowing lesbian co-parents to be recognised on the birth certificates, had this to say about adoption:

Currently, gays and lesbians, as individuals, can adopt children, subject to the same process of screening for suitability as heterosexual men and women.

The Minister for Community Services is considering adoption by all New South Wales prospective partners in the context of a broader response to a review of the Adoption Act 2000.

Thursday, 12 June 2008

NSW Bill to change 55 Acts now passes the House

The New South Wales bill, which I have posted about before, and had previously passed with amendments in the NSW Upper House, and which will alter 55 pieces of legislation, including allowing lesbian co-parents to be recognised on the birth certificate, has now passed the lower house and been sent back to the Upper House for consent.

Monday, 9 June 2008

Barriers to Addressing Domestic Violence in Same-Sex Relationships

The domestic violence movement arose out of women's struggle for equality, starting in the 60's. Theories were developed about domestic violence, in particular one that held that men's actions towards women in their relationships reflected the paternalistic nature of society- here was society writ small-the man is in control.

Whilst the paternalistic theory is useful, it started to be challenged because domestic violence was, it was soon discovered, not confined to heterosexual relationships where the man engages in domestic violence of the woman. It was soon seen that it occurs by some women towards their men, and also in both gay and lesbian relationships.

How does one assert that a gay man has been paternalistic towards his partner?

Or how does one assert that a lesbian has been paternalistic towards her partner?

For me, the real issue is about power and control- one partner, irrespective of their gender, controls the other, again irrespective of their gender, using whatever tools that come to hand- financial, social, physical or sexual.

There is nothing more stark than talking to a lesbian who is a lawyer who represents gays and lesbians who have been subject to domestic violence by their partners, who said that she was told by her local domestic violence taskforce that her gay clients were not real domestic violence victims, because they did not fit within the paternalistic framework, because they were men.

The other issue that stands out about same sex domestic violence, to this Brisbane domestic violence lawyer at least, is that because two boys or girls are engaged in domestic violence does not mean that BOTH are to blame, nor does it mean that stereotypes are accurate.

Recently I came across a student paper by Jaynacia Abraham in Texas talking about the barriers in recognising lesbian domestic violence there. The paper resonated with me about many of the issues.......

Thank you Jaynacia and her renowned professor, Professor Sarah Buel, for allowing it to be published.

Sarah Buel

Barriers to Addressing Domestic Violence in Same-Sex Relationships

by Jaynacia L. Abraham

Directed Research

Prof. Sarah Buel

Spring 2008


The application of traditional feminist analyses of domestic violence has contributed to narrow conceptualizations of violent relationships.1 Lesbians do not fit within the traditional model of domestic violence that emphasize patriarchy and male-female power imbalance.2 As a result of these under-inclusive theoretical models, training, research, community practices, and the social and legal policies surrounding domestic violence also exclude the battered lesbians’ experience.3 This paper examines the legal and social barriers to effective intervention in lesbian battering relationships.

The Heterosexual Model of Domestic Violence Obscures Lesbian Battered Women’s Experiences of Abuse

The Heterosexual Model of Domestic Violence
Problems Resulting from the Use of Gender Stereotypes in the Application of the Heterosexual Model of Abuse

The Male-as-Batterer Perspective and Victim Misidentification
The Illogical Presumption of Mutual Combatants
Mutual Restraining Orders and the Perception of Shared Responsibility
The Impact of Myths of Victims
The Impact of Stereotypes on Victims of Color
The Silence of the LGBT Community
Narrowly Tailored Services Needed Despite Similar Patterns of Violence in Same-Sex and Heterosexual Relationship

The Cycle of Violence: Honeymoon, Tension-Building, and Explosion
Special Need for Tailored Services
Homophobia Distinguishes Lesbian Battered Women’s Experiences of Domestic Violence

Homophobia and Social Isolation as a Weapon of the Abuser
Homophobia in the Legal Response
Homophobia in the Provision of Services
The Privilege of “Marriage-Like” Relationships: Statutory Failures in Protecting Victims in Same-Sex Relationships

Explicit Statutory Exclusion
Ambiguous Statutory Language and its Effects
Misconceptions About the Effects of Including Gays and Lesbians in Domestic Violence Statutes

Redefining Family and the Effects on the Institution of Marriage
Condoning Illegal Activity
Review of Printed Material from Various Travis County Victim Services
The Basics: Non-Discrimination Statements and Gender-Neutral Language
Including the LGBT Community in Non-Discrimination Statements
Use of Gender Neutral Language
Beyond the Basics: Targeted Outreach in Print

The application of traditional feminist analyses of domestic violence has contributed to narrow conceptualizations of violent relationships.4 Lesbians do not fit within the traditional theoretical models of domestic violence that emphasize patriarchy and male-female power imbalance.5 As a result of these under-inclusive theoretical models, training, research, community practices, and social and legal policies surrounding domestic violence also exclude the battered lesbians’ experience.6

There are very few agencies that include services specific to lesbian intimate partner violence.7 Lesbian victims that seek services from traditional domestic violence agencies may face ignorance, at best, or heterosexism, discrimination, or hostility towards their experience.8 Lacking adequate skills and knowledge of lesbian intimate partner violence, these victims may face danger where their partners are able, through deception, to gain access to services from the same agency. Understanding the special issues relating to their own safety, these victims may find their situations as hopeless and remain with batterers.

Homophobic and heterosexist attitudes further limit the legal response to battering in same-sex relationships. Police, for example, often minimize the danger of the lesbian victim. Victims report that in their response to battering lesbian relationships, law enforcement often behave in a physically intrusive manner, make homophobic comments, and fail to make referrals to helping networks.9 Even in the courtroom, in the absence of a visible perpetrator or at least one that fits into the mainstream conception of what a batterer looks like, judges often misinterpret and minimize the violence in lesbian relationships as mutual combat.10

Lesbian survivors report dissatisfaction with the available domestic violence services.11 Their widely documented frustration indicates that the services available are not truly accessible, open, or accepting of the lesbian victim.12 This paper will examine the legal and social barriers to effective intervention in lesbian battering relationships. Part II defines battering in lesbian relationships, its prevalence and characteristics and critiques the application of the heterosexual model of domestic violence to lesbian battering relationships. Part II establishes the need for services narrowly tailored to the needs of the LGBT community. Part IV explores the distinguishing characteristics of lesbian battering relationships. Part V examines the statutory failures in protecting lesbian victims of domestic violence. Finally, part VI reviews the literature produced by the Austin Police Department, Travis County Sheriff’s Department, Austin District Attorney’s Office, and local domestic violence agencies to gauge the outreach efforts for inclusion of lesbian victims of violence. The section concludes with recommendations for more effective intervention in lesbian domestic violence.

The Heterosexual Model of Domestic Violence Obscures Lesbian Battered Women’s Experiences of Abuse

The Heterosexual Model of Domestic Violence
Domestic violence is defined as the intentional, non-consensual pattern of harm by an intimate partner for the purpose of gaining and maintaining control.13 This expression of physical or psychological violence is characterized by a pattern of intimidation, coercion, terrorism, or violence.14 Considered from the traditional feminist perspective, domestic violence is the result of gender role inequality in heterosexual relationships.15 While feminists disagree as to the origins of the patriarchy and how it is perpetrated, they agree that this patriarchy serves as both the structural and ideological support for male violence against women.16

The paradigm of the heterosexual model of abuse is that men abuse women.17 The emphasis on patriarchy and male dominance in present feminist narratives identify male aggressors and female victims.18 The traditional narrative is neat and easily conceptualized. Indeed, our culture builds the narrative of dames in distress and male brutes (or heroes, never without power in either role) from childhood. Thus not only in theory but also in popular culture domestic violence has become viewed as a tool of male power and dominance over women.19 The distinction is important: the expectation of the identity of batterers is reflected in the services and aid available to the battered.

Cultural assumptions regarding the identity of aggressors and victims contribute to the failure to acknowledge lesbian battering. That women batter other women threatens the traditional analysis of domestic violence where gender inequality acts as the basis of male violence against women.20 The prevalence of same-sex domestic violence forces us to challenge the traditional, heterosexual model of abuse. Where women abuse other women, domestic violence cannot be simply about male dominance.21 The traditional paradigm, particularly its narrow focus on gendered power imbalance, should be expanded. Without consideration of issues including racism, heterosexism, social class, earning power, the traditional heterosexual model suffers credibility loss.22

Despite the convenience of gendered narratives, the traditional explanatory model of domestic violence must be reconceptualized. Female oppression exists outside of simple male dominance. Unlike heterosexual women, the battered lesbian’s experience must be understood absent the “endorsement of gender norms.”23 Battered lesbians’ credibility is lessened by the force of the traditional narrative. Where social and cultural norms define typical victims as the helpless, weak wives of stronger, aggressive husbands, same-sex domestic violence simply is not presumed true. The assumption is erroneous and compounds the danger for the lesbian victim.

Problems Resulting from the Use of Gender Stereotypes in the Application of the Heterosexual Model of Abuse

The reliance on gender stereotypes in the heterosexual model frustrates attempts at effective intervention in same-sex battering scenarios. The absence of cultural gender-markers for the roles of victim and aggressor in lesbian relationships leaves fact-finders unable to identify the offender.24 Unable to answer the question “who is the aggressor,” the traditional equivalent of the question “who is the man,” the application of the heterosexual model of abuse to homosexual relationships leads to (1) victim misidentification, (2) the arrest of both women as mutual combatants, and (3) the issuance of mutual restraining orders.25

The Male-As-Batterer Perspective and Victim Misidentification
Same-sex domestic violence challenges the existing theoretical work on domestic violence because it shows “women as batterers, men as victims, and gender as irrelevant.”26 In heterosexual relationships, most abusers are men and most victims are women.27 However, the overlay of gendered norms to homosexual relationships results in misidentification or the presumptive identification of butch lesbians as abusers.28 In particular, the heterosexist assumption that LGBT partners adopt masculine and feminine roles leads to misidentification. Where there is domestic violence, the bigger, stronger, or more masculine partner is likely presumed the abuser. This presumption fails to question the disposition of power outside of the traditional heteronormative framework.29

LGBT abusers are not always larger or more masculine than their partner.30 Individual abusers exploit whatever differences exist—even stereotypes of femininity.31 Feminine abusers may exploit heterosexist assumptions of femininity to veil their abuse. Those who actually are larger may rely on size however, those who are smaller may use their smaller size to get others to discount their partners disclosure of violence.32 Victims who are larger than their abuser may be afraid to fight back for fear of injuring their partner, fear of being seen as the initial aggressor, or may simply blame themselves for “allowing” themselves to be beaten.33 Because abuse in same-sex relationships does not fit heterosexual patterns of abuse, it is difficult for advocates to recognize partner abuse in same-sex relationships. When translated into same-sex relationships, traditional theories and assumptions lead to misidentification.

The Illogical Presumption of Mutual Combatants
The reliance on masculinity as the mark of the aggressor also leads fact-finders to identify both women as mutually combative. In instances where physical indicia or masculinity do not (incorrectly) imply guilt, the perceived difficulty in identifying the victim leads to the conclusion that the incident involved fair and mutual combat.34 The presumption of fairness in the fight is based on the shared gender of the abuser and victim.35

Lesbian partner violence loses significance under the familiar characterization as mere “cat fights.”36 The theory of mutual battery is that abusive relationships are characterized by reciprocal violence, meaning both partners are guilty of violence and culpable for the same.37 The presumption is illogical and assumes that all violence is the same. The chart below, “Distinguishing Victims from Abusers,” outlines possible distinguishing characteristics of victim and abuser behavior. It is important to note that in many relationships both partners use violence in fights but neither engages in the pattern of control and exploitation that characterize domestic violence. The factors discussed below are considered in the context of coercive, exploitive, and violent tactics that are used to maintain power, control, and dominance.

Chart. 1

Distinguishing Victims from Abusers
Markers of Victim Behavior Markers of Abuser Behavior
Recalls chronology of events in detail
Ashamed of victimization
Blames self
Feels remorse for fighting back or defending themselves
Fearful of partner
Protective of partner
Describes how life has narrowed during the course of the relationship
Has tried unsuccessfully to leave or repair relationship
Feels confused
Exaggerates own injuries & minimizes partners
Abuse in prior relationships and claims not to know why they ended
Feels victimized
Vague about events and omits details
Assertively claims to be a victim
Blames partner and minimizes own role
Claims the violence was a “two way street” or “just a fight”

There are important differences between the initiation of violence, self-defense, and retaliation against a violent partner.38 Even between members of the same sex, partners can be unequally matched for fighting ability due to ability, strength, and intent.39 Even further, the assumption that the abuse is mutual underestimates the role of other sources of power including, for example, money, education, community networks, and immigration status.

Mutual Restraining Orders and the Perception of Shared Responsibility

Lacking an understanding of same-sex domestic abuse, courts over-issue mutual restraining orders.40 Though mutual restraining orders are rarely issued in cases of heterosexual domestic violence,41 in cases involving same-sex partners, judges “routinely order mutual restraining orders without the required written findings of fact.”42 The consequences of issuing mutual restraining orders are significant. Their issuance creates the perception of shared responsibility.43 Accordingly, such orders, for example, may be used by the abuser to take out a criminal complaint against the victim, may result in the victims’ placement in a domestic violence registry, and even may be used against the victim in child custody hearings.44 Thus, the issuance of mutual protection orders, or more accurately the failure to investigate and identify the actual batterer, allows the batterer to continue her control and intimidation of the victim.45

The Impact of Myths on Victims
Heterosexist and racist stereotypes complicate the LGBT victims’ experience. Female abusers are hard to recognize, accounts of their violence are too easily discounted, and they have relatively easy access to domestic violence shelters.46 Male victims are not taken seriously as they are presumed capable of fighting back.47

The Impact of Stereotypes on Victims of Color
LGBT victims of color live with the possibility of violence both because of their race and sexual identity. These victims must navigate service providers and authorities that are potentially both racist and homophobic, may believe that it is normal for people of color to live with abuse, and have a well-documented history of hostile responses to both LGBT communities and communities of color.48 Victims of color are often seen as more aggressive and more likely to fight back than other victims.49 Thus, the victim in interracial relationships may be reluctant to contact authorities out of fear of misidentification. Conversely, white victims may be reluctant to report abusers of color out of recognition that the courts respond more strongly to violence by people of color than violence against them.50 Heterosexist and racist stereotypes exaggerate and minimize the roles of victims and abusers based on social cues instead of actual case-specific factors. Reliance on these uninformed assumptions reinforces the abuser’s power and isolates the victims from helpful and often life-saving services.

The Silence of the Gay and Lesbian Community
Seeking to promote a positive image of same-sex relationships or unwilling to accept the prevalence of a previously heterosexual problem, even the LGBT community has been slow to recognize same-sex partner abuse.51 Community members may be unwilling to acknowledge the prevalence of battering lesbian relationships out of fear that it may fuel society’s hatred and myths of the lesbian community.52 Additionally, the community may have their own myths contributing to their silence, including myths about utopian egalitarian lesbian relationships.53 Again, the traditional gendered narratives contribute to assumptions that women do not oppress or, more importantly, beat up other women.54

Narrowly Tailored Services Needed Despite Similar Patterns of Violence in Same-Sex and Heterosexual Relationships

The Cycle of Violence: Honeymoon, Tension-Building, and Explosion

Same-sex relationship violence occurs in a manner similar to that in heterosexual relationships.55 Despite the sexual identity of the batterer, domestic abuse is about control.56 Like that of heterosexual relationships, domestic violence in lesbian relationships involves patterns of physical, sexual, and emotional abuse.57 The violence is widely regarded as cyclical. The cycle begins with the honeymoon stage where all is good and is followed by a tension-building stage where the victim fears impending violence.58 What follows is an explosion of violence, eventually reset by the new honeymoon phase.59 With each cycle, the violence escalates.60 Lesbian violence is presumed as less violent than male-to-female violence however research indicates that the presumption is inaccurate.61 The application of this misconception to lesbian relationships again minimizes the battered lesbian’s experience.62

In a report by the National Coalition of Anti-Violence Programs (NCAVP) for 2006, they documented 3,534 reported incidents of violence affecting LGBT individuals.63 While limited research is available, it is now apparent that domestic violence in lesbian relationships occurs on a greater scale than society acknowledges.64 As evidenced by the very limited services and resources available even within the gay and lesbian community, even amongst community members battering relationships has gone widely unacknowledged.65 The silence may be the result of societal homophobia.66 This issue is discussed further in Part IV(B).

Special Need for Tailored Services

What is presently clear, however, is that survivors—regardless of their identities—need much help to negotiate the manipulation and abuse inflicted by abusive partners. Batterers often use racism, homophobia, classism, albeism, and any other tool of internal or external oppression to inflict harm. The use of such tactics compounds the harm and may decrease the victim’s willingness to reach to outside help. Even where these victims finally reach out, survivors from marginalized communities often do not receive services on par with that of mainstream communities.

This fact is especially true of the services offered LGBT communities. One size fits all models are a special disservice to LGBT communities. Treating all survivors “equally” is the practical equivalent of “color-blind” policies. Despite their sincerity, a claim to service all without regard to sexuality “misses the point that intimate partner violence occurs in a homophobic and heterosexist culture.”67 Early experiences of homophobic bias and hatred create unique opportunities for victimization of LGBT survivors. LGBT biases strongly affect the experiences of LGBT people across their lifespan.

Emphasis on experiences with hatred and violence is important: such emphasis helps to situate how many victims frame and remedy the violence in their lives. For example, the butch lesbian survivor may be reluctant to reach out to shelters for fear that she will be watched more closely than the more feminine heterosexual residents.68 Similarly, the transwoman survivor that was placed in a men’s jail cell along with her abusive boyfriend may be especially reluctant to contact help-seeking services. Without recognition of bias and its impact in the application of services in court systems, police departments, medical centers, and shelters, service providers may not effectively address domestic violence in same-sex relationships.

Homophobia Distinguishes Lesbian Battered Women’s Experiences of Domestic Violence

Effective intervention is premised on a nuanced understand of the role of bias and hatred in these victims lives. More than any other factor, homophobia distinguishes the battered lesbian’s experience.69 For these victims, homophobia not only shapes help-seeking experiences with law enforcement, the judiciary, shelters, and the community at large but also may be inflicted as a weapon of the abuser.

Homophobia and Social Isolation as a Weapon of the Abuser
An abuser may use homophobia as a weapon in several ways: (1) by threatening to “out” the victim to family, friends, or employers that may be hostile to her sexual orientation, (2) by focusing on societal homophobia to reinforce the victim’s fears that community members may be unwilling to help because of the victim’s sexual orientation, or (3) by exploiting her partner’s own internalized homophobia and inexperience in the lesbian community.70 Each is an attempt to socially isolate, manipulate, control, and oppress the victim.

First, under the threat of “outing,” the victim risks the loss of employment and personal support systems.71 Generally batterers inflict emotional abuse that involves cutting the victim off from friends and family.72 Particular to lesbian victims, however, is that homophobia compounds their isolation.73 This threat then is particularly acute to those victims that have not come out to friends and family and those victims that have been abandoned by friends and family because of their sexual orientation.74 The threat of exposure is used as a method of control.75

Second, the emphasis on societal homophobia reinforces the victim’s fears that people may be unwilling to help because of the victim’s sexual orientation.76 Abusers may try to convince their partner that no help is available because shelters only serve heterosexual women. They may emphasize how unlikely it is that same-sex victims will be believed. They may even invoke fears of worse consequences, like being the victim of a hate crime, to keep the victim from revealing the abuse to outsiders.

Finally, the batterer may also exploit victims’ own internalized homophobia. Internalized homophobia is the shame, self-hatred, and low self-esteem that results when members of a marginalized group share society’s hate and prejudice against them. The batterer in this instance may exploit the victims’ internalized homophobia and inexperience by convincing her victim that she deserved the abuse because she is a lesbian, by exploiting her low self-esteem related to other’s responses to her sexual orientation, or by blaming the violence on past or present oppression as an LGBT person.77 Thus, not only is the victim without recourse amongst family and friends, but, also homophobic rhetoric is used to assault the victims pride and identity.78 Each measure, the exploitation of internalized or societal homophobia, serves to deepen the victim’s isolation.

Homophobia in the Legal Response
Given the widespread charges of police harassment in the gay and lesbian community, lesbian and gay domestic violence is largely unreported.79 One victim reported that when she told police officers about her abuse, they “drooled” and “snickered” when they found out that she was a lesbian.80 Another reported that her own attorney seemed more interested in the details of the two women’s sexual relationship than in investigating the facts of her abuse.81 Still another reported that the responding officer referred to her as a “queer devil” deserving of the abuse because she was a lesbian.82 Same-sex domestic violence victims encounter police departments and personnel that are abusive or deliberately unhelpful.83 Furthermore, in the enforcement of heterosexist laws, police may charge perpetrators with battery instead of domestic violence or, worse, charge or ignore both women as mutual combatants.84 Chart 2 below compares the police and social services responses to heterosexual and LGBT victims of domestic violence.

Chart 2.

Distinguishing Responses to Heterosexual and LGBT Domestic Violence
Heterosexual Battered Women LGBT Victims
Police Response
Police are legally required to identify and arrest the primary aggressor under mandatory arrest laws.
Police are more likely to correctly identify and arrest batterer.
Police seen as potential helpers.
Police Response
Arrest is preferred when police have probable cause to believe a crime has been committed, but is no mandatory and often does not happen in LGBT DV incidents.
Police often arrest both people
Victims who fear being abused because of their sexual orientation or gender identity may not call police when needed.

Court and Social Services Response
Risk of losing kids if partner wins custody or kidnaps them.
Access to both Family Court and Criminal Courts; access to Family Court provides: (1) possibility of sealed records, (2) no arrest necessary, (3) court ordered restitution for damage, and (4) easier to obtain an order of protection which excludes abuser from the home.
Court and Social Services Response
Risk of losing kids because of both partners behavior and sexual orientation.
Access to Family Court only if they have a child in common (rare).
Use of Criminal Courts involves: (1) public records, (2) arrest of abuser, (3) restitution only if abuser is convicted, and (4) great difficulty in getting an exclusionary order of protection, so victim may have to risk trying to evict abuser themselves.

Misclassification, in particular, limits the victim’s access to available services for help.85 Charging batterers with domestic violence rather than simple battery exposes the batterer to enhanced criminal penalties. In the absence of these charges, the victim loses, for example, the protection of measures reserved for domestic violence including mandatory and warrantless arrests, mandatory arrests for restraining order violations, the requirement that spousal abuse be considered in custody determinations, mandatory police training, and mandatory statewide data collection.86

Homophobia in the Provision of Services
Homophobia also complicates or restricts the provision of services to abused gay and lesbians. For example, some states explicitly restrict funding to services for women who have been abused by men.87 Even though lesbians have access to women’s shelters, there is always potential that the shelters may be hostile towards women in same-sex relationships.88 Abused lesbians report feeling unwelcome, due in part to heterosexual residents expressed concerns regarding sharing sleeping space.89 Chart 3 below compares the experience of heterosexual and LGBT victims in shelters.

Chart 3.

Distinguishing Responses to Heterosexual and LGBT Domestic Violence
Heterosexual Victims LGBT Victims
Available in most counties.
Other residents are mostly heterosexual women also.
Advocates language and analysis reflects residents’ experience.
Batterers barred from entering.
Few shelters for gay men or transgender people.
Lesbians may feel invisible or unwelcome, or risk further abuse by other residents or staff.
Advocates may not understand their experience, or may be heterosexist, homophobic, or transphobic.
Lesbian batterers posing as victims may gain access to shelter.

Beyond homophobic attitudes, service providers are often additionally ill-trained and inadequately equipped to deal with lesbian battering relationships.90 Battered lesbians face unique safety issues in their dealings with shelters, authorities, their LGBT community, and even family and friends. While many shelters are, for example, well guarded from men, the female batterer has ample opportunity to gain access.91 A lesbian abuser may easily gain access by claiming to be a victim herself.92 Such access delegitimizes this safety-planning option for battered lesbians.93

Few shelters train their employees to handle issues specific to same-sex abuse.94 A study of the National Directory of Domestic Violence Programs confirms the limited resources available to lesbian victims of domestic violence.95 A survey of 566 domestic violence programs indicated that only 9.7% of the service providers reported outreach programs specifically targeting lesbian victims.96 The confluence of abuse-related isolation and the lack of social services and shelters available for lesbian victims reinforce the belief that they have nowhere to go.97

The Privilege of “Marriage-Like” Relationships: Statutory Failures in Protecting Victims in Same-Sex Relationships

Presently, all states prohibit domestic violence.98 However, severe disparities exist in the protection of homosexual and heterosexual victims of domestic violence. Largely because of vague or exclusionary statutes, many states exclude same-sex relationships from domestic violence statutes by limiting protection to married couples or using gendered language to include only male-female relationships.99 Present domestic violence law often lacks protection for abused gays and lesbians by protecting only those in marriage-like relationships.100

Explicit Statutory Exclusion
Five states (Delaware, Louisiana, Montana, North Carolina, and South Carolina) explicitly restrict domestic violence law to opposite-sex or married couples.101 Their statutes restrict protection in two ways: (1) by using gendered language to restrict coverage to only male-female relationships or (2) by limiting protection to married or formerly married couples.102 Montana’s statute, for example, does not restrict protection to opposite sex couples on its face.103 The statute purports protection of “partners.”104 Pursuant to a 1993 amendment, "partners,” however, is defined as spouses, former spouses, persons who have a child in common, and persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex.105 Delaware, Louisiana, North Carolina, and South Carolina all similarly limit protection to victims of the opposite sex.106

Ambiguous Statutory Language and its Effects
Many state statutes refer to “partners,” “cohabitants,” or “household members” in their domestic violence statutes without explicit exclusion of same sex relationships.107 Broader language, however, does not guarantee protection. The application of laws that do not explicitly invite protection to gays and lesbians are inconsistent and vary depending on the attitudes of law enforcement and the judiciary.108

Ambiguous language allows judges and prosecutors to make facially legal decisions that disguise homophobic attitudes.109 This biased application is difficult to document. For example, prosecutorial abuse in the decision to pursue lesser charges in cases of same-sex domestic violence is largely undocumented.110 Similarly, it is difficult to document the dismissal of protective restraining orders for lesbian battered women because they do not fall within the explicit protection of the statute.111

Furthermore, ambiguous language leaves the safety of same-sex couples vulnerable to changes in the law regarding their partnership/marital status. Ohio is an example of shifting privileges and protections for same-sex couples. In 1991, in State v. Hadinger, the court stated that the exclusion of same-sex couples from the protection of domestic violence statutes would “eviscerate the efforts of the legislature to safeguard, regardless of gender, the rights of victims of domestic violence.”112 Subsequent decisions in State v. Yaden and State v. Linner affirmed the extension of domestic violence protection to same-sex relationships.113 Initially, Ohio courts recognized the extension of protection of domestic violence laws to same-sex couples. Their optimism was short-lived.

In December of 2004, Ohio passed an amendment banning same-sex marriages.114 The amendment brought into question whether the language in the marriage amendment precluded the application of domestic violence law to unmarried couples. Five courts considered the issue and reached conflicting decisions.

Most held that domestic violence laws were not in conflict with the Defense of Marriage Amendment.115 Some concluded that the amendment's intent was to prohibit same-sex marriage and therefore did not apply to the domestic violence statute.116 Still others stated that the domestic violence statute did not violate the plain language of the amendment because it did not create a legal status for unmarried cohabiting individuals.117 A minority of courts held that the plain language of the Defense of Marriage Amendment rendered the domestic violence laws unconstitutional as applied to cohabitants.118 While the issue has since been settled by the Ohio Supreme Court, the conflicting interpretations preceding the Supreme Court’s determinations exemplify the vulnerability of protections for same-sex couples.119

Misconceptions About the Effects of Explicitly Including Gays and Lesbians in Domestic Violence Statutes

Ambiguous or vague laws create unpredictable and unjust results for victims of same-sex domestic violence. Developing on a marital model, or a model bestowing privileges primarily on marital or marriage-like relationships, the laws protecting victims and prosecuting perpetrators of domestic violence are under-inclusive.120 Arguments against explicitly including gays and lesbians in domestic law primarily concern (1) the effects on the institution of marriage, (2) the implications of condoning illegal activity, and (3) over-inclusion.

Redefining Family and the Effects on the Institution of Marriage
Noting the gender neutral language of the statute, in 1997 a Kentucky Court of Appeals found that orders of protection from domestic violence should be issued to same-sex couples.121 Before the case was decided, State Senator Tim Philpot proposed a revision to the law limiting the statute to individuals of the opposite sex.122 In a hearing on the proposal, Philpot stated: “I do not agree that gay couples fit the definition of family…[i]t hasn’t happened in the history of the world.” Arguing against a similar issue in Arizona, State Senator John Kaites also argued against the extension of domestic violence protection to gay and lesbian couples stating “if a man assaults another man, its assault whether they lived together or not…we should not create a special classification for homosexuals living together.”

Individuals that are most likely privileged with recourse from domestic violence include those that are in relationships that at least look traditional.123 Critics fear that the extension of domestic violence protection will erode of the traditional institution of marriage. They fear that gay and lesbian inclusion in domestic violence law would constitute an endorsement of the gay and lesbian lifestyle.124 Their fear is misplaced.

The recognition of domestic violence among gays and lesbians neither promotes nor proscribes gay and lesbian rights to marry.125 Their inclusion in domestic violence law no more affords these individuals the privileges of marriage than it does the non-married, cohabiting heterosexual couples that the law presently protects.126 Gay and lesbian protection under domestic violence law does not extend the insurance privileges, tax benefits, intestate succession rights, and other privileges reserved for married heterosexuals.127 Its premise, like that of the protections offered heterosexual victims, is simply protection from violence.

Classification as simply battery or assault is not enough. Beyond the enhanced criminal penalties for domestic violence offenders, classification as domestic violence affords victims access to shelters and treatment.128 Absent the classification and without the explicit extension of these laws to same sex couples, general assistance in some states are limited to women who have been abused by a man.129 In these states, shelters that provide services to lesbian victims must do so out of separate funding.130

Condoning Illegal Activity
A second argument against the extension of domestic violence law to same-sex relationships is the unintended endorsement of illegal activity. With sodomy laws on the books, the inclusion of gays and lesbians in domestic violence law was considered a legislative endorsement of illegal activity.131 Following the decision in Lawrence v. Texas declaring such laws constitutional, the point is moot.132

Finally, opponents also assert that the inclusion of same-sex couples in domestic violence law would render the law overly broad and inappropriately encompass all roommate relationships.133 The concern appears disingenuous. Statutes excluding same-sex domestic violence often already include heterosexual roommates/cohabitants.134 Furthermore, overbreadth may be remedied by limiting protection to those persons who are in a dating or ongoing relationship.135

Review of Printed Material from Various Travis County Victim Services
Domestic violence literature from the following task forces were reviewed for sexuality-sensitive content: Austin Police Department, Travis County Sheriff’s Office, District Attorney’s Office, the Office of the Texas Attorney General, Texas Department of Human Services, and SafePlace. Public and private shelters and other service providers were additionally contacted. However, the vast majority of area shelters receive their literature from SafePlace. These materials were thus not reviewed in duplicate.

The Basics: Non-Discrimination Statements and Gender Neutral Language

At their best, the literature reviewed from government authorities and private domestic violence agencies uses gender-neutral language. Publications regarded as gender-neutral included language such as “the batterer,” “the abuser,” “the victim,” “he/she,” or “partner” instead of “husband,” “boyfriend,” or the like. The distaste for the use of neutral language may stem from a fear that its use may render the material cold and too broad to have value.

The fear of losing the intended audience is legitimate. Indeed, the premise of this entire discussion is that broad applications or “one-size-fits-all” theories are a disservice to the LGBT community. However, this paper calls not for an in depth analysis of LGBT domestic violence issues in all publications. This community can and should be more effectively targeted. In publications that do not seek to target a specific community but rather all victims, basic opportunities for inclusion are still being missed. These publications may be improved by the more consistent (1) inclusion of LGBT domestic violence in the form of a non-discrimination statement in each publication and (2) use of gender-neutral language.

Including the LGBT Community in Non-Discrimination Statements
The absence of a more inclusive non-discrimination statement is particularly egregious. At a minimum, all domestic violence publications should recognize that domestic violence is an issue that also affects the LGBT community. The mention of domestic violence as more than a straight issue is an attempt to re-educate the entire population and dispel popular myths. Solutions for reshaping social and cultural opinions regarding the LGBT community are beyond the scope of this paper. The call for recognition, respect, and tolerance especially in state published literature is not.

For example, the Texas Department of Health and Human Services publishes a pamphlet entitled “Family Violence and Addiction: Implications for Treatment.” The introduction defines family violence as “the physical assault of an adult woman by her male intimate partner.” The introduction goes on to include “other configurations of the victim-batterer relationship…include[e] violence among homosexual couples.” Considered alone, the definition of family violence is entirely exclusive of homosexual relationships. Arguably, however, even the clarification that follows does not save the introduction from bias. Special care is taken to exclude homosexual victims from the definition of family violence. By defining homosexual domestic violence outside of the definition of family violence, the state materials indicate a homophobic bias regardless of the later inclusion in the more general definition of violence.

The attempt to include the LGBT community through a second qualifying sentence is weak. Instead of indicating inclusion, the use of what amounts to no more than an afterthought conveys the very opposite. In order to be effective, at a minimum, any attempt to include the LGBT community must be facially genuine. Qualifiers, weak clarifications, and afterthoughts are counter-productive and must be eliminated in public outreach literature.

Use of Gender-Neutral Language
Of over thirty brochures reviewed for sexuality-sensitive materials, 41% were produced with gender and sexuality biased language. The Texas Department of Human Services, for example, sponsors a brochure entitled “When Love Hurts: Resources for Battered Women.” The introduction includes a narrative of an abused wife. While the use of the narrative is entirely appropriate, the literature that follows excludes (1) dating and homosexual relationships from the definition of family violence and (2) repeatedly describes the victims experience at the hands of a “husband.” The implied exclusion of dating relationships, include that of homosexual couples, is perhaps unintended but no less clear.

The danger lies not simply with careless language in one brochure. The danger lies in the replication of only the husband narrative. That story is important. There is value in seeing a brochure and seeing a story like your own: be it an African-American or Latina mother, a teen, or a lesbian abuse victim. Never seeing the depiction of a particular story reinforces traditional conceptions of domestic violence to both the victim and the community at large.

Beyond the Basics: Targeted Outreach in Print
Discussing these publications in terms of biased and unbiased language is misleading. More important than gender/sexuality-neutral or gender/sexuality-biased language is the fact that only two brochures reviewed explicitly included the GLBT community as at risk for domestic violence. Of the two, only one pamphlet included a phone number to a Lesbian Family Violence Task Force. Twenty-eight of the thirty brochures reviewed failed to include language such as “gay,” “lesbian,” “bisexual,” or “transgender” explicitly.

The limited materials and the failure to prove diversity on the materials that are produced implies a very limited commitment to LGBT domestic violence. The best of the materials reviewed were labeled “inclusive” having only an introductory non-discrimination statement that included language that domestic violence can occur “regardless of the gender and sexual orientation of both partners.” For the explicit mention of acceptance despite sexual orientation, this publication was regarded “inclusive” instead of neutral or exclusive. This characterization however is too generous.

Simple non-discrimination statements do not represent commitment to inclusion of the LGBT community in domestic violence issues. Despite the inclusion of non-discrimination statements, these publications fail to (1) discuss gender identity and sexual orientation for LGBT people of color as well as white people, (2) indicate collaboration with area LGBT affirmative resources, (3) indicate a commitment to the recruitment and promotion of LGBT staff, including people of color, (4) indicate shelter and service options for trans-victims, or (5) indicate the provision of LGBT affirming and victim sensitive interpreters for clients who do not speak English.136 This list is non-exhaustive but is intended to demonstrate that simply stating that an organization does not discriminate against the LGBT community is not the same as being committed to the resolution of LGBT domestic violence. Actual commitment requires much more.

LGBT victims who perceive advocates as insensitive will not use them as resources. Service providers’ beliefs are communicated even if not directly expressed. One-lined non-discrimination statements simply are not enough to convey actual commitment. Acknowledgment of the high percentage of female domestic victims does not justify the almost complete exclusion of male and GLBT victims.

Austin domestic violence service providers must more be more committed to working with the LGBT community. Areas for improvement include explicitly including LGBT in all agency publications and printed materials. Mere diversity statements are not enough. Print materials on LGBT issues must address the entire LGBT community, talk about gender identity as well as sexual orientation, and address LGBT people of color as well as white community members.

These service providers must also work to develop more comprehensive materials for LGBT clients. One page flyers simply are not enough. Homophobia complicates the LGBT victims’ experience. LGBT victims are often reluctant to air issues related to abuse for fear of triggering homophobic attacks on their communities or receiving ignorant or hostile responses from service providers. Given the present hostility towards same sex relationships that still pervades popular culture, these fears are legitimate. In response, service providers must work to appear more than merely tolerant of LGBT issues. Instead, they must be very clear in the messages they send to both straight and LGBT communities: that they have the knowledge and skills necessary to sensitively and effectively respond to LGBT domestic violence.

Friday, 6 June 2008

Opposition: Same sex super bill off to committee

Opposition Leader, Brendan Nelson has said that while the Opposition would support the same sex super changes in principle, it will use its numbers to refer the matter to the Senate Committee. The Government is seeking to speed up the process. The Opposition is seeking to slow it down.

The Government wants the amendments through before 1 July, to enable Commonwealth public servants to plan their future better. It is highly likely that by flicking it to a Senate Committee in which it will have the numbers, the Opposition will slow matters down.

What is not being said in the debate is the person who helped prompt the debate. Justice Michael Kirby of the High Court is Australia's most prominent gay judge. Last year he was reported as writing to John Howard seeking these changes, pointing out that when Justice Ian Callinan was to retire last year, Justice Callinan's wife Wendy would be entitled to a widow's pension if Justice Callinan died before her, but that if after Justice Kirby reaches the mandatory retirement age this year and died before his partner Johann, Johann would not be entitled to anything.

One of the speakers, Chris Pyne, quoted what Shadow Attorney-General Senator George Brandis SC said last year:

"It is far too late in the day for anyone sensibly to suggest that
in Australia there is a place for discrimination against people
on the grounds of their sexuality. That attitude reflected the
prejudices of a different time and a different age which are
now obsolete and must be seen to be ignorant."

Here is what Brendan Nelson told the House:

Dr NELSON (Bradfield—Leader of the Opposition)
(4.43 pm)—We believe in the equal right of every
Australian citizen to be treated with dignity and respect.
We believe that all must have an equal right to
lead their lives in their own way, according to their
own choices and their own decisions, so long as they
respect the equal right of all others to do the same. We
believe that every Australian is equally entitled to a fair
go, regardless of who they are, where they live or
whether their parents were rich or poor. They are entitled
to equal treatment regardless of the colour of their
skin, the god whom they worship, if any, the political
beliefs which they hold, their gender or professed sexual
The opposition, therefore, supports in principle the
stated purpose of this legislation to ‘eliminate discrimination
against same-sex couples’ in the nine
pieces of Commonwealth legislation which are subject
to this bill. These deal with superannuation and related
matters in respect of Commonwealth public servants,
members of the defence forces, parliamentarians, judicial
officers and other Commonwealth officers who are
in permanent, bona fide domestic relationships with
partners of the same sex.
I point out that our side of politics has a long record
in ending laws which discriminate against homosexual
people. We do well to remember that it is only a generation
ago, within the memory of many members of
this House, that not only was there no antidiscrimination
legislation but even the private sexual conduct of
homosexual people was treated as a crime.
The first occasion of law reform in this area occurred
only 36 years ago, in 1972, when a Liberal
member of the South Australian parliament, the late
Murray Hill, the father of former senator Robert Hill,
introduced and secured the passage through the parliament
of a private member’s bill decriminalising homosexual
acts between consenting adults. All of the Australian
states and territories followed suit over the
course of the following two decades, but the pathbreaking
initial reform was brought about by a member
of my own party. When this chamber debated the decriminalisation
of homosexual conduct for the very
first time on 18 October 1973, it was on a motion
moved by another great Liberal, in fact a former Prime
Minister of this country, Sir John Gorton.
The Liberal Party yields to no-one in its historic
commitment to reform in this area. For us, it is not
about tolerance, which implies a reluctant acquiescence
to acceptance; it is about respect—the respect for the
rights and dignity of every person unless, in exercising
those rights, they diminish the rights of others. But, in
supporting the principle behind this bill and its basic
stated intention, it is absolutely essential that we do not
turn this debate into something that it is not. In giving
our in-principle support to this legislation, I make it
very clear what the opposition is not supporting. We do
not and will not support any change to or devaluation
of the traditional status of marriage as the foundation,
indeed the bedrock, of our society. In fairness to the
Attorney-General, I do not at this point consider that
this is his intention, but it may be a consequence. Acceptance
that people who live in a permanent domestic
same-sex relationship should be treated the same in
relation to superannuation benefits as people living in a
permanent domestic opposite-sex de facto relationship
must not be allowed under any circumstances whatsoever
to devalue the traditional status of marriage as
being between a man and a woman. The opposition
does not accept that there is either a legal or a moral
equivalency between such relationships and that of
That is not to treat such relationships with disrespect.
It is merely to make the point that marriage is a
unique institution which has, in one form or another,
been the foundation stone of every civilised human
society, whether modern or ancient. It is a relationship
which by its very nature can only exist between people
of opposite sexes, and it remains the surest and most
stable relationship for the nurture and upbringing of
To recognise the unique and intrinsic status of marriage
is not to treat the relationship of same-sex partners
with disrespect, just as to abolish unfair discrimination
against same-sex partners is not in itself to devalue
the institution of marriage. It is to accord the
proper and appropriate treatment to different relationships
which are of a fundamentally different character.
The opposition is concerned about some of the language
in the bill. In particular, the repeal from existing
acts of the expression ‘marital relationship’ and its replacement
by the austere and clinical expression ‘couple
relationship’ might have that perhaps unintended
effect. Those who value the traditional institution of
marriage as highly as we do on my side of politics are
alarmed to see marital relationships reduced to being
one among several classes of permanent domestic relationships
along with the same-sex and opposite-sex de
facto relationships. Protection of the unique status of
traditional marriage starts with preserving its explicit
recognition in our statutes. A misguided change in this
legislation has the potential to encourage similar dilution
of the language of marriage into other acts of the
parliament—and if that is the case we will certainly
move to have this amended. We will steadfastly oppose
The opposition is also concerned at the way in
which the bill defines children who may live in samesex
households. Of course we accept that nothing
should be done—absolutely nothing—to discriminate
against a child who happens to grow up in such a
household when it comes to the circumstances in
which he or she may be entitled to a superannuation
benefit on the death of a parent. Conversely, we need
to ensure that children who grow up in such households
do not enjoy rights which are unavailable to
other children who grow up in de facto heterosexual
households. Equal treatment of children is just as important
a value as equal treatment of the partners in
those relationships.
Finally, as I said when the Attorney-General foreshadowed
this legislation on 30 April this year, the opposition
will not support—in fact we will resolutely
oppose—any measure which might open the door or
otherwise give legitimacy to gay adoption, gay IVF or
gay surrogacy.
At the start I spoke about the importance of treating
every human being with dignity and respect. That is the
principle which in the end underlies all varieties of
antidiscrimination laws, including in this bill. Yet in
pursuing law reform in this area we must be very careful
to avoid the trap of creating new inequalities by
according economic recognition to the status of some
types of relationships but leaving others unrecognised.
This bill opens the door on the whole question of the
proper treatment of all kinds of interdependent relationships
outside marriage. There is an infinite variety
of circumstances in which two people who are not married
to one another might nevertheless decide to live
their lives together. Not all of those relationships are
sexual, nor is it any of society’s business whether or
not they are. The key characteristics are that they are
co-dependent, exclusive and are intended or at least are
expected to be permanent. Most importantly of all,
they are founded on a deep, mutual commitment to one
another and love of a platonic kind.
A common example is of two unmarried sisters who
decide to live together as a household and do so
throughout all of their adult lives. Should they not have
the same rights in relation to property, taxation and
superannuation as two gay people who decide to do the
same in a sexual relationship? What of a woman who
gives up the opportunity of marriage and children to
spend her entire life looking after an invalid brother?
There are many kinds of such relationships. We have
all seen them amongst our constituents, and I have certainly
seen them in my life as a medical practitioner.
There is, in the opposition’s view, a strong argument
for giving those relationships as much recognition and
respect as we give to same-sex relationships. In our
view, just as same-sex couples should not be discriminated
against, nor should they be accorded a recognition
and status denied to other permanent, domestic,
non-marital relationships. This has been the course
followed by some of the states—in particular, Victoria
and Tasmania. It is a course which commends itself to
the opposition.
We should not deal with one set of injustices by creating
others. Accordingly, while not denying this bill
passage through the House of Representatives and, as I
have said, while supporting the anti-discriminatory
principles behind it, it is the intention of the opposition
to refer the bill to the Senate Standing Committee on
Legal and Constitutional Affairs to examine the various
matters of which I have spoken.
Further, I note that the opposition has been advised
via the office of the Attorney-General, for which we
are grateful, that there is another, much larger omnibus
bill to be introduced into the House of Representatives
shortly which deals with all other areas of discrimination
against homosexual people in Commonwealth law
and, in particular, gives effect to other recommendations
of the Human Rights And Equal Opportunity
Commission’s Same-sex: same entitlements report of
May 2007. The opposition had expected to see the bill
before now but evidently there has been some delay in
its preparation, and I can understand that. It is important
that this matter not be dealt with in a piecemeal
way but be considered as a whole. I therefore foreshadow
that it is the intention of the opposition to refer
this additional bill to the Senate Standing Committee
on Legal and Constitutional Affairs as well so that the
whole issue of the elimination of unjust economic discrimination
against same-sex partners and the potential
expansion of the reach of anti-discrimination laws to
other categories of interdependent relationships can be
considered together. To do otherwise would be to abrogate
our responsibility as legislators to carefully examine
and fully understand the consequences to society of
the decisions that we will ultimately make.
This is not a delaying tactic. If there has been a delay,
it has been on the part of the government in not
introducing the omnibus bill before now. But if we in
this parliament are to embark on this major piece of
law reform—as we should, in principle—which, as I
have said, has the opposition’s in-principle support, we
must get it right. It is more important that this be done
properly than it be done immediately, whilst recognising
that it is time for justice to be done.
It is also important that we bring the whole community
along with us and in doing so respect the legitimacy
of views that are held with great conviction by
those at either end of this debate. No Australian should
pay a dollar more in tax or receive a dollar less in support
by virtue of his or her sexuality. That is the principle
for which we stand which needs to be addressed.
It is time to address economic injustice but, in doing
so, we must not—indeed, we will not—through indifference,
neglect or undue haste allow legislation to
pass that undermines the institution of marriage in any
way or that possibly has unintended consequences for
the treatment of children in same-sex relationships.
This bill alone will not end injustice on the basis of
sexuality. But if we get it wrong, we may create other
injustices and do great damage to the institutions and
values that define who we are and which built a resilient
On behalf of the opposition, therefore, I move:
That all words after “That” be omitted with a view to substituting
the following words: “whilst not declining to give
the bill a second reading, the House:
(1) affirms its commitment to the central importance of the
institution of marriage to Australian society;
(2) recognises that partners to permanent interdependent
domestic relationships other than marriage (including,
but not limited to, same-sex relationships) ought not to
be discriminated against in relation to their financial affairs;
(3) notes that the Opposition will refer the bill to the Senate
Legal and Constitutional Affairs Committee with a view
to ensuring that, in removing discrimination against
people in same-sex relationships:
(a) the centrality of marriage is not devalued, whether
by the use of inappropriate statutory language or
(b) the rights and status of children are properly protected;
(c) the rights and status of people in interdependent relationships
other than same-sex relationships are
recognised and properly protected”.

Same sex super changes introduced to the House

Attorney-General Robert McClelland has now introduced the Same-Sex Relationships (Equal Treatment in Commonwealth Laws- Superannuation) Bill 2008 to the House. I have set out his second reading speech below...

First Reading
Bill and explanatory memorandum presented by Mr
Bill read a first time.
Second Reading
Mr McCLELLAND (Barton—Attorney-General)
(9.29 am)—I move:
That this bill be now read a second time.
The Same-Sex Relationships (Equal Treatment in
Commonwealth Laws—Superannuation) Bill 2008
introduces the first part of historic reforms to amend
Commonwealth laws that discriminate on the basis of
It is with immense pride that I introduce this bill,
marking a new chapter in Labor’s commitment to promoting
and protecting human rights in Australia—a
commitment that is based on the belief of the fundamental
equality of all persons.
The bill will amend the acts which govern the
Commonwealth government (defined benefit) superannuation
schemes and related taxation legislation and
acts that regulate the superannuation industry.
Discrimination on the basis of sexuality has largely
been removed from state and territory laws. This bill
will take equality for same-sex couples and their children
to the next level by introducing long overdue
Commonwealth reforms, removing discrimination
from superannuation laws as the first step.
HREOC report
I want to acknowledge the important role of the
Human Rights and Equal Opportunity Commission’s
inquiry which focused on discrimination in financial
and work related entitlements and benefits.
HREOC found that same-sex couples do not enjoy
the same entitlements as couples who are either married
or in opposite sex de facto relationships. Indeed,
the report gave a number of actual instances that any
fair-minded person would accept were unfair and inappropriate
in modern Australia.
On coming to office, we commissioned a whole-ofgovernment
audit of Commonwealth legislation building
on HREOC’s excellent work.
The audit confirmed HREOC’s findings. The audit
further identified that discrimination in the legal treatment
of same-sex couples and their children occurs in a
range of non-financial areas, such as administrative
and evidence laws. We have dealt with the issue of evidence
laws earlier today.
The audit also identified a number of statutory regulations
and instruments which include possibly discriminatory
terms. The government will review, and
where necessary, amend these instruments to remove
any differential treatment of same-sex couples.
This bill marks the first stage of the government’s
commitment to address this inequitable treatment in a
wide range of laws.
This bill will amend acts governing Commonwealth
government (defined benefit) superannuation schemes.
It will also amend related taxation and superannuation
regulatory acts.
The superannuation schemes covered by this bill
• the Commonwealth Superannuation Scheme
• the scheme under the Superannuation Act 1922
• the Defence Force Retirement and Death Benefits
• the Defence Forces Retirement Benefits Scheme
• the Judges’ Pensions Scheme
• the Federal Magistrates Disability and Death
Benefits Scheme
• the Governor-General Pension Scheme, and
• the Parliamentary Contributory Superannuation
The reforms in this bill are time critical. This is because
it will allow reversionary death benefits to be
paid to de facto same-sex partners and their children
where they currently have no entitlement.
For example, until these acts are amended, were a
scheme member to die, his or her same-sex partner
would not be entitled to receive a reversionary death
benefit. Similarly, children of that relationship may
also be unfairly deprived of a benefit. I would ask opposition
members to note that fact in their consideration
of granting cooperation in the passage of this legislation.
For same-sex partners and children of the relationship
to be deprived of those reversionary benefits, I
am sure all fair-minded members would agree, is discriminatory,
unfair and intolerable, and it is time that
we did something about it.
It is the case that superannuation legislation generally
refers to a spouse, which currently excludes samesex
partners. While same-sex partners may be able to
access some superannuation concessions as ‘dependants’—
for example, concessional treatment of death
benefits—this bill will make sure there is equal treatment
of same-sex couples and their children in this
To quote HREOC’s report of its inquiry on same-sex
‘One of the main purposes of superannuation
schemes is to encourage savings during life which will
support a person’s family after he or she dies …
[s]uperannuation is often a person’s largest asset apart
from the family home. Most people expect that their
superannuation entitlements will be inherited by a
partner, children or other dependants. But for people in
same sex couples and families, this is not always the
This bill will remedy these injustices by allowing
same-sex couples and their children to access the benefits
and entitlements they have been denied for so long.
The amendments in these acts revise the existing
definitions of ‘spouse’ and ‘child’, creating new definitions
that equally recognise opposite-sex and same-sex
relationships and partners, and the children they produce.
The bill will expand the notion of de facto relationship
by adding the new concept of a ‘couple relationship’,
which includes same-sex partners.
The bill will enable a relationship registered under
prescribed state laws to be evidence of the existence of
a same-sex relationship when considering who may be
entitled to a death or pension benefit. Regulations for
this purpose will be made under the Judges’ Pensions
Act 1968, which I administer, and for ease of administration
are applied to the other Commonwealth
schemes amended by the bill.
The preparation of this bill, which relates only to
Commonwealth (defined benefit) superannuation
schemes, has highlighted certain issues regarding the
framing of amendments. For example, we will further
consider the way relationships registered under state
and territory laws will be recognised in other Commonwealth
laws when developing the broader reforms
to be introduced in the second part of the same-sex
legislation reform program. It will also be necessary to
consider the need for consistency in Commonwealth
legislation in relation to the use of terms such as ‘partner’ and ‘spouse’, but these issues can be given further
consideration after we proceed with the expeditious
passage of this very important first tranche of legislative
The bill also allows for the equal recognition of
children who are the product of same-sex and oppositesex
A child for this purpose is the product of a couple
relationship, where one partner is linked biologically to
the child or where one partner is the birth mother of the
child. By applying this definition, opposite-sex and
same-sex families are treated equally.
Furthermore, the new definition will solve the problems
arising from some surrogacy arrangements where
even children of an opposite-sex relationship may currently
fall definitionally outside the requirements of the
defined benefits legislation.
This approach imports a new standard of fairness
and consistency into the law in this area and provides
functional recognition of same-sex families in the
The reforms in this bill will recognise real family
situations. Recognition is necessary if we are, as a
community, to remove discrimination against same-sex
families and their children.
Superannuation Industry (Supervision) Act 1993
The bill will also amend the Superannuation Industry
(Supervision) Act 1993, which establishes the superannuation
regulatory framework for regulated superannuation
funds. This will mean that superannuation
funds, should they wish to do so, will be able to
make allowance for same-sex couples and their children
in the same way that Commonwealth (defined
benefit) superannuation schemes will be able to do so.
If this bill is passed, I encourage all superannuation
funds across Australia to make provision for same-sex
couples and their children so that this discrimination is
completely removed from the superannuation industry.
This bill marks the first step in removing discrimination
against same-sex couples and their children in acts
governing Commonwealth (defined benefit) superannuation
schemes and related acts that have not moved
with the times.
I commend and I am greatly impressed by the dedicated
work of a number of highly talented public servants,
and specifically public service lawyers, in the
preparation of these reforms. They have done so diligently,
under the pressure of time, and their work has
been outstanding.
The reforms in this bill will make a practical difference
to the lives of a group of fellow Australians who
for far too long have suffered discrimination in superannuation
at a Commonwealth level. It is fair, it is equitable
and it is the right thing to do.
I commend the bill to the House and I look forward
to the opposition’s support.