Sunday, 31 August 2008

Homosexual behavior due to genetics and environmental factors: research

Homosexual behaviour is largely shaped by genetics and random environmental factors, according to findings from the world's largest study of twins.

Writing in the scientific journal Archives of Sexual Behavior, researchers from Queen Mary's School of Biological and Chemical Sciences, and Karolinska Institutet in Stockholm report that genetics and environmental factors (which are specific to an individual, and may include biological processes such as different hormone exposure in the womb), are important determinants of homosexual behaviour.

Dr Qazi Rahman, study co-author and a leading scientist on human sexual orientation, explains: "This study puts cold water on any concerns that we are looking for a single 'gay gene' or a single environmental variable which could be used to 'select out' homosexuality - the factors which influence sexual orientation are complex. And we are not simply talking about homosexuality here - heterosexual behaviour is also influenced by a mixture of genetic and environmental factors.

The team led by Dr Niklas Långström at Karolinska Institutet conducted the first truly population-based survey of all adult (20-47 years old) twins in Sweden. Studies of identical twins and non-identical, or fraternal, twins are often used to untangle the genetic and environmental factors responsible for a trait. While identical twins share all of their genes and their entire environment, fraternal twins share only half of their genes and their entire environment. Therefore, greater similarity in a trait between identical twins compared to fraternal twins shows that genetic factors are partly responsible for the trait.

This study looked at 3,826 same-gender twin pairs (7,652 individuals), who were asked about the total numbers of opposite sex and same sex partners they had ever had. The findings showed that 35 per cent of the differences between men in same-sex behaviour (that is, that some men have no same sex partners, and some have one or more) is accounted for by genetics. Rahman explains:

"Overall, genetics accounted for around 35 per cent of the differences between men in homosexual behaviour and other individual-specific environmental factors (that is, not societal attitudes, family or parenting which are shared by twins) accounted for around 64 per cent. In other words, men become gay or straight because of different developmental pathways, not just one pathway."

For women, genetics explained roughly 18 per cent of the variation in same-sex behaviour, non-shared environment roughly 64 per cent and shared factors, or the family environment, explained 16 per cent.

The study shows that genetic influences are important but modest, and that non-shared environmental factors, which may include factors operating during foetal development, dominate. Importantly, heredity had roughly the same influence as shared environmental factors in women, whereas the latter had no impact on sexual behaviour in men.

Dr Rahman adds: "The study is not without its limitations - we used a behavioural measure of sexual orientation which might be ok to use for men (men's psychological orientation, sexual behaviour, and sexual responses are highly related) but less so for women (who show a clearer separation between these elements of sexuality). Despite this, our study provides the most unbiased estimates presented so far of genetic and non-genetic contributions to sexual orientation."

Saturday, 30 August 2008

US law student is also a porn star

Porn star Anita Cannibal, 38, is also a first year law student in where else but LA, according to the American Bar Association Law Journal.

With amazing understatement, a legal blogger has described Anita, known as Traci Bryant in real life, as packing more into a week than the average law student does a semester.

But would Traci be a fit and proper person to be a lawyer?

Friday, 29 August 2008

Bangladesh gay man granted refugee status

Shannon Minter

Recently I received an email from the National Center for Lesbian Rights, a US organisation based in - where else but San Francisco, that has been prominent in what its name stands for.

A couple of years ago I went to their offices and met amongst others Shannon Minter, the legal director. Shannon has recently won an award for his contributions, including as lead counsel in the California marriage case. Shannon, who hails from Texas, seemed quite surprised when I mentioned that Queensland was twice as big.

I digress.

The recent email said that the NCLR was helping an HIV positive Pakistani man claim asylum in the US because of the fear of persecution in Pakistan, where engaging in sodomy attracts the death penalty.

This reminded me of cases here where Bangladeshi gay men have obtained asylum based on their of persecution if they were to return home.

The most recent is the Refugee Review Tribunal case of 0801885. This involved a Bangladeshi man who said that he could not return to Bangladesh because he was openly gay and was afraid that he would be persecuted if he returned. The Tribunal recognised that he was a refugee.

The Tribunal said:

The applicant said that he feared persecution in Bangladesh because of his homosexuality. He said that after he had completed his Secondary School Certificate examination he had been found together with another boy by the Imam of the mosque and some village people. He said that a shalish had been convened and he had been punished. He said that his siblings had been very upset and his mother had said that if he did not change she would not accept him as her son. The applicant said that at the college where he had enrolled to study for his Higher Secondary Certificate there had been so much gossip about him that he had not been able to concentrate on his studies and he had dropped out after a few months.

The applicant said that after he had moved to Dhaka as referred to above he had lost his job at the shop because he had once again been found with another man working at the shop. He said that this had created a big scene and they had both been sacked. The applicant said that during the next few years he had felt like an outcast and that nobody had been prepared to give him a job. He said that he had frequented venues where he had found casual sexual partners but he had developed no close friendships. He said that he had been afraid of being caught by the police but fortunately this had not happened. He said that after a few years his family had started to talk of him marrying and settling down but he had always said that he was not interested. He said that his family had been ‘really quite sick of me’ and they had arranged for him to go to work in Country A. He said that there too he had had casual sexual encounters with other men.

The applicant said that since arriving in Sydney he had been to gay clubs and had begun to meet Australian gay men. He said that if he returned to Bangladesh he would have to conform to their social, religious and cultural system and deny his homosexuality or else he would be completely abandoned by his family. He said that his family had told him that now he was an adult they would no longer support him. He said that if he were caught in a homosexual relationship he feared that he would be attacked and beaten again as had happened when he had been a child He said that this event had left a permanent scar on his mind. He said that if the police caught him engaging in homosexual activity they would arrest him and put him in gaol unless he paid them money. He said that he would not be able to get a job as he had no qualifications. He said that in Bangladesh he would not be able to live his life openly and honestly....

Having regard to the independent evidence concerning the situation of homosexuals in Bangladesh, I consider that there is a real chance that the applicant will suffer serious harm if he lives openly as a homosexual in Bangladesh. He will be vulnerable to harassment, assault or even rape if he continues to frequent the established meeting places for homosexuals in Dhaka. Conversely, if the threat of harm were to prevent the applicant from living openly as a homosexual this would in itself amount to persecution

Thursday, 28 August 2008

Children born after donor insemination should be told as soon as possible about their conception

It is better for children conceived by donor insemination to be told of their origins at an early age, according to the first large-scale study of people who are aware of their donor conception. If the children are not told until they are 18 or older, they are more likely to have feelings of shock and anger, the 24th annual meeting of the European Society of Human Reproduction and Embryology in Barcelona heard.

The study is one of the first to compare the views of offspring of donor insemination told of their origins during childhood compared with those who only found out in adulthood. The researchers recruited a sample of 165 offspring conceived by sperm donation through the Donor Sibling Registry – a US-based, worldwide website that enables donor offspring to search for their donors and their donor siblings (other donor offspring who share the same donor). The participants answered an online questionnaire consisting of multiple-choice and open-ended questions. They were aged 13-61; 148 (89%) were living in the USA and four (2%) were living in the UK; the majority (approximately three-quarters) were female.

Dr Vasanti Jadva, a research associate at the Centre for Family Research, University of Cambridge (UK), found that children born into mother-only or same-sex parent families were much more likely to be told about their origins before the age of three than were children of heterosexual parents: 63%, 56% and 9% respectively. Indeed, 33% of children in heterosexual families were told about their conception after the age of 18, compared with none in the other two types of families. Two children from heterosexual parents only found out when told by people who were not their parents.

Dr Jadva said: "We asked the offspring how they felt at the time they found out about their conception, excluding those that found out before the age of three as they would have been too young to recall their feelings. For all offspring, the most common feeling was curiosity, irrespective of the age at which they found out. However, there were differences according to the age at which they had been told of their conception, with those told during adulthood more likely to report feeling confused, shocked, upset, relieved, numb and angry."

For instance, 37% of those told when aged 4-11 reported feeling confused, compared to 52% told when aged 12-18, and 69% told when aged over 18. In the respective age groups, 27%, 58% and 75% respectively reported feeling shocked; 16%, 23% and 44% reported feeling upset; 6%, 26% and 38% reported feeling relieved; 6%, 26% and 38% reported feeling numb; and 12%, 13% and 38% reported feeling angry.

Examples of comments made by the participants included:

"I would have appreciated revelation of this information much earlier in my life. Learning of my biological identity at 17 years of age was a traumatic event." A 30-year-old, found out at age 17.

"I am angry because I asked about being 'adopted' several times throughout my childhood and adolescence and told that I was being foolish. I knew." Someone who found out at age 50

"Either tell your kid from the beginning or don't tell them at all, it was one of the most shocking and upsetting moments of my life. I felt alone." A 19-year-old, found out at age 12.

"I was so young I don't remember feeling much more than interested and curious." A 13-year-old who found out at age four.

Dr Jadva said: "With regards to how offspring felt towards their mother at the time of finding out, offspring told in adolescence or adulthood were more likely to report feeling angry about being lied to and betrayal. Those told as children were more likely to state that it made no difference to how they felt towards their mother compared to those told later in life." According to whether they were told between 4-11, 12-18 or over 18, 12%, 29% and 47% respectively felt angry at being lied to, and 12%, 23% and 34% felt betrayal. There were no statistically significant differences in feelings of offspring towards their father at the time of disclosure.

When asked how they felt currently about their conception, the most common response was curiosity, reported by 69% of offspring. There were significant differences for those feeling angry, relieved and shocked, with those told after the age of 18 more likely to report these feelings. By contrast, a 15-year-old, told before the age of three, commented: "I've grown up knowing how I was conceived. I've always been accepting to it because I never knew any different. Now that I am a little older the only thing that's changed is that I'm a bit more curious."

Dr Jadva concluded: "This study shows that age of disclosure is important in determining donor offspring's feeling about their conception. It appears it is better for children to be told about their donor conception at an early age. This finding is in line with research on adoption, which also shows that children benefit from early disclosure about the circumstances of their birth.

"In light of the trend toward greater openness, it is important we recognise that telling offspring of their conception may evoke a sense of curiosity about their origins which could lead them to seek out their donor relations. In fact, we have found that offspring show high levels of interest in contacting not only their donor, but also their donor siblings. Offspring from this study have gone on to find an average of four donor siblings, with a maximum of 13."

Wednesday, 27 August 2008

Coalition seeks to alter proposed de facto laws: Brandis

Federal Shadow Attorney-General George Brandis has flagged that the coalition will seek to amend proposed changes to cover de facto and same sex couples so as to state clearly that those relationships cannot be equated with that of marriage, according to The Australian.

Belief in God, parenthood prompt gay partners to make commitment

Belief in God, parenthood prompt gay partners to make commitment
Which gay and lesbian couples are more likely to legalize their relationship and hold a commitment ceremony? Those with children and strong religious beliefs, says a new University of Illinois study.

"Opponents of relationship recognition for same-sex couples often say that we have to protect children, or that same-sex relationships are against God. But this study suggests that lesbians and gay men who seek relationship recognition may be acting to protect their children and enact their own religious beliefs," said Ramona Faith Oswald, a U of I associate professor of family studies.

In the study, 190 persons who were cohabiting with a same-sex partner were surveyed to gather a broad range of information about lesbian and gay persons living in downstate Illinois. Within this group, a subsample of those who had legalized their same-sex relationship by making a will or granting power of attorney to their partner was identified.

Length of relationship was the strongest predictor that a couple would legalize their relationship. Legalizers in this sample were more likely to belong to a supportive religious congregation than non-legalizing cohabiters, Oswald said.

"Faith communities may be important sources of legal education and advocacy for same-sex couples," she noted.

From the legalizers, Oswald identified a still narrower group she called ritualizers, couples who had both legalized and participated in a commitment ceremony.

Having children and identifying religious beliefs as being very important in their daily life were the strongest predictors that a legalized couple would ritualize their relationship.

In fact, mothers and fathers in this study were 3.5 times more likely to have had a commitment ceremony than lesbians or gay men who lived together and had legalized their relationship but had not been part of a commitment ritual, she said.

Most children in this study were from partners' previous relationships, she noted.

"Couples may be using commitment rituals to build cohesion within stepfamilies as the role of gay and lesbian stepparents is often vague. Such ceremonies may help couples validate their sense of belonging and obligation to each other while also demonstrating to friends and relatives that they are a family unit," she said.

Most children in the study were teenagers at the time of the commitment ceremony, Oswald noted.

"It's interesting that couples were motivated to have a commitment ceremony when their children were at this developmental stage, just starting their own romantic explorations.

There may be an element of parenting going on here, with couples wanting to give their children an example of commitment by formalizing their own. It's an interesting question for future research," she said.

With the Religious Freedom and Protections Civil Unions Act under consideration in the Illinois House of Representatives, Oswald hopes this study will help to explain the motivations of gay and lesbian couples who wish to obtain civil unions.

"This study is an important contribution because it separates the legal and ritualistic aspects of solidifying a relationship. Not all same-sex couples want legal protection or ritual recognition. However, those who do appear to take these steps for the same reasons straight people often do—parenthood and religious commitment," she said.

"This common ground should be part of our policy debates," she added.

Tuesday, 26 August 2008

Biological fathers not necessarily the best, social dads parent well too

Biological fathers not necessarily the best, social dads parent well too
Madison, WI – July 30, 2008 – A large number of U.S. children live or will live with a "social father," a man who is married to or cohabiting with the child's mother, but is not the biological father. A new study in the Journal of Marriage and Family examined differences in the parenting practices of four groups of fathers according to whether they were biologically related to a child and whether they were married to the child's mother. Researchers found that married social fathers exhibited equivalent or higher quality parenting behaviors than married and cohabiting biological fathers.

Furthermore, whereas married and cohabiting biological fathers displayed relatively similar quality parenting, the parenting practices of married social fathers were of higher quality than those of cohabiting social fathers. Married social fathers were more engaged with children, took on more shared responsibility in parenting, and were more trusted by mothers to take care of children.

Led by Lawrence M. Berger, PhD, MSW, of the University of Wisconsin-Madison, participants were drawn from the Fragile Families and Child Wellbeing Study, a longitudinal study of children born in 20 large U.S. cities in the late 1990s and early 2000s. Sample children were mostly born to unmarried parents and had been followed from birth to approximately age five.

Analyses and regression results from interviews with mothers revealed that they perceived married social fathers to be engaged in relatively high quality parenting practices with the five-year-old children. Most notably, social fathers exhibited significantly higher levels of cooperation in parenting than biological fathers.

"On the whole, our findings suggest that marriage is a better predictor of parenting quality with regard to social fathers than biological fathers," the authors conclude. "Our study is relevant to understanding the quality of parental care that children receive from resident fathers across a range of family configurations that are now commonly experienced by children."

Monday, 25 August 2008

Lambda Legal Urges President to Eliminate US Travel Restrictions for People Living with HIV

Comment: It is an absolute anachronism that the US continues to have laws to prevent HIV positive people being able to travel there.

Here is a media release by a leading US group of gay and lesbian lawyers, Lambda Legal, calling for change.

‘The ban against HIV-positive travelers and visitors is a violation of basic human rights, and the reversal of this discriminatory policy is long overdue.’
In a letter submitted today, Lambda Legal urges President Bush to end the ban on visitors and immigrants who are HIV positive by signing the President's Emergency Fund for AIDS Relief (PEPFAR) reauthorization bill.

Lambda Legal's letter calls on the President to sign a bill repealing the statutory requirement that HIV be included on the list of diseases or conditions that make a person inadmissible to the United States. In addition, the letter urges the President then to direct the Department of Health and Human Services to use its restored regulatory authority and remove HIV from that list.

"The ban makes absolutely no sense given what we know about HIV," said Scott Schoettes, HIV Staff Attorney at Lambda Legal. "The dismantling of this blatantly discriminatory policy is long overdue."

Excerpt from letter signed by Lambda Legal Executive Director Kevin Cathcart:

"Since 1987, a time when HIV was relatively poorly understood, our government has prevented people living with HIV from entering the U.S. as visitors or immigrants by including HIV infection on the list of diseases that render a person inadmissible. In the early 1990's, however, relying upon the advice of public health experts, the Department of Health and Human Services ("HHS") sought to end that ban. Given the limited methods by which HIV can be transmitted, HHS recognized that concerns about public health simply did not warrant preventing people living with HIV from entering or residing in this country. Unfortunately, despite the sound scientific and medical basis for this intended change in policy, Congress reacted to HHS's plans by codifying the ban against visitors and immigrants with HIV.

"As amended by Congress, the Immigration and Nationality Act requires HHS to include infection with HIV (the only disease or condition specified in the statute) on the list of diseases that serve as a basis for inadmissibility, regardless of the Secretary of HHS's considered opinion as to the need to do so. See 8 U.S.C. § 1182. As a result of inclusion on this list, people living with HIV are ineligible to receive a visa to enter the U.S. – whether for vacation, employment, to attend a conference or for any other reason – and are ineligible to obtain lawful permanent resident status. Although waivers of this ban are available if specified conditions are met, those conditions are very restrictive and extremely difficult to satisfy.

"The ban against HIV-positive travelers and visitors is a violation of basic human rights, and the reversal of this discriminatory policy is long overdue. The HIV ban is based on prejudice and unwarranted fears, not on medical knowledge and sound public health principles. Continuing the ban fosters misunderstanding by the American public about HIV transmission; fuels bias, stigma and discrimination against people living with HIV in this country; and alienates people across the globe — including medical professionals, scientific experts and various others who are among those leading the fight against this pandemic.

"At long last, Congress has done its part to get rid of this ban. Section 305 of the PEPFAR reauthorization bill repeals the statutory language requiring HHS to include HIV on the list of diseases that make a person inadmissible to the U.S., thus returning to HHS the authority to make a determination based on medical knowledge and sound public health principles. By including this provision in the bill, Congress has finally recognized that the entry bar against individuals living with HIV is an unjustifiable infringement of basic human rights not in keeping with the traditions of this country, the principles on which it was founded or the role we want to play in the global fight against HIV and AIDS.

"The power now rests with you and your administration to complete the process of dismantling this ill-advised, unfair and anachronistic policy. Lambda Legal urges you to sign this bill into law. Moreover, we urge you to immediately direct the Secretary of the Department of Health and Human Services to begin the process of removing HIV from the list of diseases that serve as grounds for inadmissibility. Not only is this the medically and scientifically correct thing to do, it is the right thing to do.

The bill is Tom Lantos and Henry J. Hyde U.S. Global Leadership Against HIV/AIDS, Tuberculosis and Malaria reauthorization Act of 2008 (S. 2731)

Sunday, 24 August 2008

UK: gay rights campaigner dies

Leo Abse
Leo Abse, 91, colourful Jewish/Welsh solicitor and MP who steered through major changes to family law and the Homosexual Law Reform Bill in 1967,which largely decriminalised gay sex, two years before the Stonewall riots, has died. The Homosexual Law Reform Bill was among the first in a series of laws throughout the world to decriminalise homosexual activity.

Classic quote:

"imprisoning homosexuals for long periods in male gaols to incarcerating a sex maniac in a harem".

Abse was known for his dramatic dress sense, and at the age of 83 marrying a woman 50 years younger.

For his obituary, click here.

Saturday, 23 August 2008

Barrister wanted no Greek jurors

I recently stumbled across an article in The Age that a Melbourne barrister unsuccessfully sought to oppose any Greek jurors being chosen because of a common misunderstading that Greeks "like anal sex". The judge quickly rejected the request.

Not in My School: Doe v Yunits

Trina Harrington

I recently came across this article on the website of GLAD, the leading LGBT legal rights group in New England, USA. The article appealed to me, because my heart went out to Trina Harrington for what she had to go through, that as far as I am aware there has not yet been a case like this here, and last but not least- Trina's surname is the same as my lawfirm's!

Here is the inspirational article about Trina:

Katrina Harrington was in seventh grade at South Junior High in Brockton, Massachusetts when she started having trouble at school. Like most girls her age, Trina wore skirts and hair accessories, and started wearing makeup. But unlike other students, she was disciplined for how she dressed. By eighth grade Trina had to have her clothing approved every morning by the school’s principal; if he didn’t approve, he sent her home. Eventually, Trina stopped going to school altogether.

Trina’s family called GLAD’s InfoLine for help. GLAD’s 2000 case Doe v. Yunits (“Doe” because in court documents Trina was known only as “Pat Doe”) was the first reported decision in a case brought by a transgender student. In the decision, the Massachusetts Superior Court ruled that a middle school may not prohibit a transgender student from expressing her female gender identity.

The school argued that Trina violated its dress code prohibiting “distracting or disruptive” clothing. GLAD countered that the school excluded Trina on the basis of her sex: if she had been biologically female there would be no question that she could wear the clothing she wanted to wear.

The court in 2000 ruled that that transgender students need the same support and protection that other students need, and that “exposing children to diversity at an early age serves the important social goals of increasing their ability to tolerate differences” and teaches “respect for everyone’s unique personal experience.”

In February 2001, a trial court denied the school’s motions to dismiss Trina’s disability and due process claims. In a first-of-its-kind ruling, the court held that Massachusetts disability law, unlike federal law, does not exclude transgender people from its protections.

Hear Trina's story on itunes.

Friday, 22 August 2008

California: doctors cannot discriminate against lesbians on the basis of religion

Justice Joyce Kennard
The California Supreme Court has ruled unanimously, in a decision written by Justice Joyce Kennard, in Benitez v. North Coast Women’s Care Medical Group [PDF file], that doctors of the North Coast Women’s Care Medical Group cannot deny medical treatment to people based on their sexual orientation. In 1999, that Group refused to provide fertility treatments to Lupita Benitez because Benitez was a lesbian in a same-sex relationship. In its historic decision, the court ruled that California law prohibited such discrimination and rejected the doctors’ argument that their religious beliefs should enable them to deny treatment based on their religious objections to serving lesbian patients.

History of the case

The trial court rejected the doctors’ defence. The doctors, unhappy with the result, appealed to the Court of Appeal. That court held that the doctors had to be given an opportunity to demonstrate that their refusal to treat Lupita Benitez was not based on her sexual orientation. Lupita Benitez then appealed to the California Supreme Court.

The California Supreme Court said:

Do the rights of religious freedom and free speech, as guaranteed in both
the federal and the California Constitutions, exempt a medical clinic’s physicians
from complying with the California Unruh Civil Rights Act’s prohibition against
discrimination based on a person’s sexual orientation? Our answer is no.

Thursday, 21 August 2008

Gay blood ban architect backflips

One of the advisors to former Federal Health Minister Neal Blewett, who recommended the ban on gay blood donations in the 80's has now called for the ban to be reversed, in evidence in the Tasmanian gay blood ban case brought by 25 year old gay man Michael Cain.

Other experts have called for the ban to remain, according to the Hobart Mercury. The trial continues.

Thursday, 14 August 2008

New Anti-Bullying Program for SA Schools

One of the key problems for gay and lesbian youth, and for those who are a little older, is dealing with internalised homophobia and feeling different in part due to bullying at schools. The South Australian government has announced a new anti-bullying program in schools, which is to be welcomed. I hope that it has strong twin messages against homophobia in schools and in favour of acceptance.

Here's the Ministerial Media Release:

Education Minister Jane Lomax-Smith says:

“Violence among young people is absolutely unacceptable, whether it happens at school, at home or in the community.

“We have seen some shocking examples of teenage behaviour in recent times and police and our schools are working together to address these matters.

“Violence is an issue for all schools – Government, Catholic and Independent – the community as a whole and parents right across Australia.

“The State Government’s Coalition to Decrease Bullying, Harassment and Violence in South Australian schools is taking a lead role on these issues.

“The Coalition includes local experts in dealing with school bullying, along with representatives of Government, Catholic and Independent schools.

“They are looking at emerging trends, such as whether the use of mobile phone cameras is inciting violent incidents and the issue of violence among girls.

“The Coalition already has done significant work around school yard bullying and cyber bullying, including providing information to parents.

“One of the first actions I took as Education Minister in 2004 was to distribute to schools one of the most comprehensive anti-bullying packages ever produced.

“The package, still being used in schools, includes detailed information about how to develop an anti-bullying policy for the school and teach respect for others in the classroom.

“Our teachers and schools are very conscious of their responsibilities to counter and reduce bullying and violence, and this package can help to support them in their work.

“This age-old problem is not one we can solve easily or quickly, but every small step we take towards more peaceful schools is worthwhile.

“Today I am announcing further details of two new State Government initiatives to help address the behaviour of young South Australians.

ALL State schools will this week receive a new training package – Your Classroom: Safe, Orderly and Productive and training will be provided to 2000 classroom teachers. It is part of a $10 million investment in addressing student behaviour. Under this new program, teachers in their first five years will be trained first. They will take part in workshops before trialling new approaches in their own classrooms.

PROFESSOR Donna Cross from Edith Cowan University in Western Australia has accepted an invitation to lead a roll out of the Supportive Schools Program to South Australian secondary schools in 2009. This preventative program has been shown to decrease the incidence of bullying in schools by encouraging positive relationships between students.

“These are just some of the ways that schools, with support from our Coalition of experts, are working to address bullying, violence and harassment in schools.”

Wednesday, 13 August 2008

WA election:surrogacy laws on hold

Premier Alan Carpenter's calling of an election has had one unintended consequence: people hoping to become parents with the passing of proposed Western Australian surrogacy changes now have to wait longer in the hope that, one day, laws in Western Australia allowing surrogacy will be passed.

One couple, Steve and Desiree Case, fear that they will never have children, according to the the

Monday, 11 August 2008

Malaysia: Drop Political Charges Against Opposition Leader

Malaysia: Drop Political Charges Against Opposition Leader
Police Investigation of Anwar Ibrahim Lacks Credibility
(New York, August 7, 2008) – The Malaysian government should immediately withdraw politically motivated charges against opposition leader Anwar Ibrahim, Human Rights Watch said today. Police served Anwar, who is running for office, with an order to appear in Kuala Lumpur Sessions Court on August 7, 2008, under a colonial-era law that criminalizes homosexual conduct.

The Malaysian government appears to be manipulating the legal system to shore up support for its continued rule and undermine the opposition.

Brad Adams, Asia director at Human Rights Watch

But several instances of misconduct around the investigation into allegations that Anwar had sexual relations with a male former aide show the charges are aimed at preventing Anwar from leading a new government. Police handled the inquiry improperly, while government officials interfered in it and tried to publicly intimidate and embarrass Anwar. On August 26, Anwar is due to run in a by-election for the constituency vacated on July 31 by his wife, Dr. Wan Azizah Wan Ismail. On August 6, police ordered him to appear in Kuala Lumpur Sessions Court to face charges under section 377 of Malaysia’s criminal code, which criminalizes “carnal intercourse against the order of nature.”

“The Malaysian government appears to be manipulating the legal system to shore up support for its continued rule and undermine the opposition,” said Brad Adams, Asia director at Human Rights Watch. “This case is really about preventing challenges to the government’s rule.”

There is no legal impediment to Anwar’s running in the by-election, but denial of bail would prevent him from campaigning. Although a “sodomy charge” is a non-bailable offense, common practice has been for bail to be granted. Given Anwar’s high public profile, Human Rights Watch said that bail should be granted, as there is no evidence that he is a flight risk or will intimidate the complainant or any witnesses.

The police investigation into the allegations against Anwar, who was arrested on July 18 and interrogated about the accusations, has lacked transparency and impartiality. Police refused to publicly release the first information report filed by the complainant, Saiful Bukhari, as required under Malaysian law. This has fuelled suspicions that the document may have been altered after Anwar’s arrest.

Even more damaging to the credibility of the police investigation and the Malaysian government has been their response to a medical report by the first doctor to examine Saiful. The report of an anal examination conducted by a doctor at Hospital Pusrawi, and leaked on the internet on July 29, found no evidence of “sodomy.” Kamaruddin Ahmad, the hospital’s medical director, verified the report as authentic, but said the doctor who examined Saiful was a general practitioner, not a specialist, and that the examination was not “sodomy-related.”

Deputy Inspector General of Police Ismail Omar dismissed the report’s relevance, describing it “as an attempt to sabotage police investigations” and confuse the public. Ismail also told reporters that police are considering investigating news sources that leaked the medical report.

“The authorities seem more concerned with investigating how the medical report was leaked than with the fact that its content doesn’t support the criminal charges,” said Adams.

The government of Prime Minister Abdullah Badawi has faced serious challenges from opposition parties since the national election in March 2008 in which the ruling Barisan Nasional (National Front) lost its two-thirds majority in the parliament and control of five states. Public opinion polls in Malaysia indicate little support for the prosecution of Anwar. An opinion poll released on August 1 by the Merdeka Center for Opinion Research found only 11 percent believed the sodomy allegations, while two-thirds believed the charges are politically motivated. Only a third expressed confidence that institutions such as the judiciary, the police and the attorney-general’s office would perform their roles in Anwar’s case in a fair and transparent manner.

“The charges leveled against Anwar provide the government a convenient distraction from current political crises,” said Adams. “Pursuing this case will only undermine the credibility of the police, the prosecutor and the government.”

The sodomy charges were filed under an antiquated law, a holdover from British colonial rule, that criminalizes “carnal intercourse against the order of nature,” both consensual and non-consensual. Human Rights Watch opposes all laws used to criminalize consensual homosexual conduct between adults, and urged the Malaysian authorities to repeal those provisions while replacing those on non-consensual sexual acts with a modern, gender-neutral law on rape.

Anwar’s previous trials in 1999 and 2000 on corruption and sodomy charges raised serious concerns about judicial independence and fairness. The courts refused bail, prevented Anwar from raising certain defenses, disallowed witnesses from testifying, and improperly threatened defense lawyers with contempt proceedings. Then-Prime Minister Mohamad Mahathir even went on television during the trial to declare Anwar guilty.

If the charges are not dropped, trial proceedings should be fair and public, and conducted by an independent, impartial and competent court that meets international due process standards, Human Rights Watch said. This includes selecting the judge at random according to the standard practice in Malaysia. There should be no shadow of suspicion that the selection of the judge was fixed, as in the previous trials.

Source: Human Rights Watch

Sunday, 10 August 2008

US: Gestational surrogacy agreements

One of the issues I have discussed with lesbian clients recently who are contemplating making babies is whether to go through an IVF clinic or to have known donors. If the latter, does the donor get recognised in some way?

An obvious issue from a long time family lawyer like me is that usually there is little point entering into an agreement if it is not enforceable. If it ain't binding, why try? However, long experience has taught me that in some cases, even if the agreement isn't binding, sometimes there can be benefits in creating an agreement.

For example, many years ago I acted for a mum who was in the Family Court asking for her kids to live with her(back then we called it custody, I am just trying to keep up to date with the jargon). She said that she had felt forced to leave the town in which she and her ex and the kids lived, and now sought the help of the court in getting the kids back.

It was at this moment that we had the Perry Mason surprise moment- which is why I say to clients: "I don't like surprises." The other side produced a stat dec by my client to Centrelink saying that she had agreed that the kids were to live with their dad. Thsi document was not a binding agreement, but was clear evidence of the intention of my client. Round one to dad- the court had no hesitation that day in ordering that interim custody was with dad (some months later I might add she was successful and the kids ended up with my client).

Now in Connecticut we have had the issue litigated about gestational surrogacy agreements.

The issue is whether the gay couple can be recognised on the birth cert
ificate as the parents. In two cases they were, and in the third, they were not.

So the agreements may or may not be valid, but the intention of the parties was clear- for the gay couples to have children and to be recognised on the birth certificates as parents.

Let's see how it pans out.

Saturday, 9 August 2008

Finally it's happening: gay man takes on Red Cross over blood donation

The long anticipated case has commenced in Tasmania, with 25 year old gay man Michael Cain challenging the Red Cross about its rule that gay men can't give blood.

His challenge is that it is discriminatory by the Red Cross as it does not take into account whether a person engages in safe sex or not, so a straight person engaging in unsafe sex can give blood, but gay men who engage in safe sex cannot.

The case continues next week.

Further links:

ABC news
Rodney Croome gay activist
Gay blood donation

Overseas, the results are mixed:

Sweden has kept the ban, as has
Finland and the USA, but Russia has removed the ban.

The approach taken by the Tasmanian Red Cross is a one year ban, similar to that advocated by the US Red Cross.

Thursday, 7 August 2008

Murder of transgendered woman in the States: is this the beginning of a transpanic defence?

Angie Zapata, a transgendered woman from Colorado was
murdered on July 17. A man has been arrested in the case.

The claims in the case are that one day, after meeting on a social networking site, Angie took the man back to her place and performed oral sex on him.

The following day, when the man came back, he is alleged to have asked Angie whether she was a woman, to be told "I'm all woman". The man then allegedly grabbed Angie's groin, discovered that Angie had a penis, and killed Angie.

It is only a question of time before the man's lawyer will argue that his client panicked and killed Angie on the basis that he thought Angie was a woman, and then discovered that Angie was a man.

Wednesday, 6 August 2008

Family Court case: was father gay?

In the recent Family Court case of Craven & Crawford-Craven, Justice Warnick, sitting as the Full Court, had to consider the question of the father saying that he was unfairly branded by the trial judge as a homosexual. The father had sought equal time to the parties' child G, which was rejected by the trial judge, finding that the child should spend more time with the mother.

What was apparent from the trial was that the father and mother had separated and the father now resided with his partner, a Mr J.

The father considered that the issue of homosexuality might be important to the parenting orders that were the subject of the appeal.

In his grounds of appeal, the father said:

"That in considering the lifestyle of the [father] as a homosexual as the Federal Magistrate did ......... and describing the father as homosexual in the key words to the reasons for judgment, the Federal Magistrate erred in that he made that determination when there was no evidence that justified such determination."

The Federal Magistrate said:

"The homosexuality of the father does not, of itself, disqualify him from fully enjoying and fulfilling his role as a parent."

"I accept that the father and his partner are able to provide for [G]’s needs and to parent him effectively. However, as [G] grows older, issues may arise that the father has to deal with in explaining to his son his personal circumstances. That does not mean that [G] should not continue to spend significant time with his father.

"I do, however, think that the separation of [G] from the mother and his sister for extended periods would not be in his best interests. It would prove to be disjointed for [G]. He would be part of the larger family unit for some of the time and would then be effectively an only child in the father’s household whilst he spent time with him. This may prove difficult for [G] to adjust to. This difficulty is highlighted by the fact that it will be only him who is moving between two households whilst his sister stays with the mother. In my view this concern leads me to conclude that the child should spend more time with the mother than with the father, and it would not be in the child’s best interests to spend equal time in both households."

Counsel for the father stated:

"The finding [of homosexuality], whilst not having of itself any consequence, is a finding that was not open to the Trial Judge on the evidence that was before the Court, that is, that the father had a homosexual preference, if that finding reflects upon the determinations which the Trial Judge made...."

Justice Warnick noted that the finding as to homosexuality could not be seen to have affected any relevant determination that the Federal Magistrate made. Indeed, it was clear from the discussion that followed the sentence containing the reference to the homosexuality of the father, that the trial judge saw no relevance in it in the case before him.

Moreover, the trial judge noted that the father may have to, in the future, explain his personal circumstances to his son. Indeed, in the last sentence of the paragraph, he especially rejected any such consequence.

In the following paragraph, the trial judge "set out the basis for rejecting an equal sharing of time between parents. The father’s sexual orientation was not a factor.
In any event, while the husband deposed that psychologists and counsellors had identified him “firmly as bisexual” and therefore a more complete description of the circumstances presented at trial might have been that he was a bisexual, living in a homosexual relationship, it is at least arguable that a reference to the homosexuality of the father is not incorrect, that being one part of his orientation, currently forming a basis for his cohabitation with Mr J."

Tuesday, 5 August 2008

Qld: Bligh- adoptions are not going to include same sex couples

Queensland Premier Anna Bligh has made plain that Queensland, in overhauling its adoption laws, will not remove the effective ban on same sex couples adopting.

Monday, 4 August 2008

NSW Attorney General John Hatzistergos has announced he has commissioned an in-depth review of surrogacy laws in light of a proposed national model.

Mr Hatzistergos said the potential for uniform surrogacy laws throughout the country was examined by the Standing Committee of Attorneys General (SCAG) meeting last week.

“SCAG, together with the Ministerial Councils for Community Services and Health, is working on a consultation paper proposing a national model for altruistic surrogacy laws,” Mr Hatzistergos said.

“It is anticipated to be released in the near future.”

“I will now be asking the NSW Legislative Council Standing Committee on Law and Justice to conduct a full review and report on the issues and this process will allow stakeholders to contribute their thoughts.”

“Laws in different States and Territories are complex and inconsistent, often forcing prospective parents to cross state lines to have children via surrogacy. NSW law bans commercial surrogacy but leaves altruistic surrogacy unregulated.”

“This is an extremely sensitive area, requiring some difficult moral and ethical issues to be resolved.”

“In any new surrogacy law it is important that the first and foremost consideration should be the interests of the child,” he said.

The terms of reference for the Standing Committee include:

Whether the intended parents and surrogate mother should have to meet any criteria before entering into a surrogacy arrangement
The legislative amendments needed to clarify the legal status of the child
The rights of a surrogate child to access information about their genetic parentage, and
What role the government should play in regulating surrogacy arrangements.

“Another important issue that needs to be considered is whether surrogate mothers should receive reimbursement for reasonable expenses from the commissioning parents, such as hospital fees and medical costs, even though commercial surrogacy will not be allowed,” said Mr Hatzistergos.

Some of the most pressing issues in this area include the content of birth certificates, surrogacy for same sex couples and how to deal with situations where the surrogate mother does not wish to relinquish the child.

Other states have already undertaken reviews of their surrogacy laws, including current inquiries by Committees of the Tasmanian and Queensland Parliaments, inquiries into Bills presented to the Western Australian Parliament in 2007 and the South Australian Parliament in 2006, and the Victorian Law Reform Commission’s Report on Assisted Reproductive Technology and Adoption (June 2007) which deals with surrogacy in the context of ART.

Source: Ministerial Media Release

Sunday, 3 August 2008

English Court of Appeal case: child can have three parents

In the recent English Court of Appeal case of
In the matter of:
Re A (A Child: Joint Residence/Parental Responsibility)
, the court affirmed an earlier English decision that a child can have more than two parents.

The question arose when, after the commencement of bitter litigation and the obtaining of a family report that recommended a joint residence between the mother and her former partner, the mother then said that she wasn't sure that her former partner was the father, and it could have been another man, and yes indeed the DNA test showed the other man was A's father.

Not surprisingly, the mother was criticised for her behaviour, as was the former partner, in his case for having set up CCTV in their home without her knowledge!

The interesting legal point was as to what constitutes a "parent". This is of particular relevance in Australia given that the Family Law Act does not adequately define "parent".

Section 4 of the Family Law Act defines "parent" thus:

"parent" , when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.

However, section 60B, in looking at the objects of Part VII, which deals with parenting issues, talks about "both of their parents" and "both their parents" and section 60CC(2) refers to "both of the child's parents". Subsection (3) in various places talks of "each of the child's parents" and (4A)"if the child's parents have separated" again indicating that there can only be two- presumably the biological parents.

The English Court of Appeal, in rejecting the appeal, said that the mother's former partner was a "parent", meaning the children had three parents.

The court followed the decision of the House of Lords in In re G (children), in which Baroness Hale said that there were three types of natural parents:

There are at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child's welfare, depending upon the circumstances of the particular case. The first is genetic parenthood: the provision of the gametes which produce the child. This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is "his" child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child (see, for example, the psychiatric evidence in Re C (MA) (An Infant) [1966] 1 WLR 646). For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain.

The second is gestational parenthood: the conceiving and bearing of the child. The mother who bears the child is legally the child's mother, whereas the mother who provided the egg is not: 1990 Act, s 27. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.

The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase "psychological parent" gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973), who defined it thus:

"A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive, foster or common law parent."

Of course, in the great majority of cases, the natural mother combines all three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique. The natural father combines genetic and psychological parenthood. His contribution is also unique. In these days when more parents share the tasks of child rearing and breadwinning, his contribution is often much closer to that of the mother than it used to be; but there are still families which divide their tasks on more traditional lines, in which case his contribution will be different and its importance will often increase with the age of the child.

But there are also parents who are neither genetic nor gestational, but who have become the psychological parents of the child and thus have an important contribution to make to their welfare. Adoptive parents are the most obvious example, but there are many others.

Re G was a case involving a fight between a lesbian couple about their children. The biological mother, who had used an IVF clinic, tried to stop her former partner from having anything to do with the children. The case, on appeal, turned on the issue of whether the children should be removed from the mother and placed with her former partner. The mother was ultimately successful.

Baroness Hale concluded:

I am sad to see these two women, who deliberately brought these children into the world for them to share, and who both love and want the best for them, locking themselves into the same sort of battles that, sadly, we so often see between mothers and fathers. I hope that they can now move on from this dispute into a happier and more co-operative future for the sake of their children.