Friday, 31 July 2009

The fact that I have asthma, felt as if I were drowning when I called 000 was irrelevant. Don't believe swine flu stats, nos much higher
Hospital said I was not in at risk category - as I am over 10, under 60, don't have diabetes, have a good heart, and evidently not pregnant
I don't know if I had swine flu or not. I was not specifically tested for it, but only tested for influenza A, which I had.

Sunday, 26 July 2009

Men's groups fear outcome of Family Law Act review: Australian http://ow.ly/ic3R
In the wake of Darcy Freeman's death, Attorney-General McLelland announced review of domestic violence and Family Law Act http://ow.ly/ic3x
"Cured homosexual" gay hate nurse under investigation- for competence: Brisbane Times http://ow.ly/ic19

Friday, 24 July 2009

Saw Fidelio last night. Singing was great, but the set?! Huge letter screaming: "PRISON". it just detracted from the performances.

Thursday, 9 July 2009

Same sex adoption row brews in NSW: Brisbane Times http://ow.ly/gR3y

Wednesday, 8 July 2009

NSW recommends same sex adoption, but allowing exemptions for faith based agencies:Aust Gay and Lesbian Law Blog http://ow.ly/gL60

NSW recommends same sex adoption

There has been a recommendation for NSW to allow same sex adoption, according to a parliamentary committee. The Legislative Council standing committee on law and justice said that the Adoption Act 2000 should be amended:


to allow same-sex couples to adopt, but that an exemption from the application of the Anti-Discrimination Act 1977 be created for faith-based adoption agencies. The Committee has concluded that reform to allow same-sex couples to adopt in NSW will protect children’s rights and help to ensure children’s best interests. It will do so by providing the security of legal recognition for existing parent-child relationships, by broadening the pool of potential applicants from which the most appropriate parents for any individual child are selected, and by enabling children currently fostered by same-sex couples to have that relationship permanently secured where appropriate. Such reform will also address discrimination against same-sex couples and their children, and address anomalous inconsistencies in their present treatment under the law.

Nevertheless a minority considered that only heterosexual couples should be able to adopt:


Some members of the Committee consider that the best interests of children are met in the context of a family comprised of a mother and a father in a permanent, preferably married relationship, where the child can experience on a daily basis the fundamental complementarity of motherhood and fatherhood.
These members believe that mothers and fathers bring unique qualities to their parenting roles, both of
which are essential to optimal child development. These members further consider that the state has a
duty of care to ensure that children are adopted into families that will provide ‘optimal care’, and that
same-sex parenting denies children such care, to their detriment in the short and longer term.
Correspondingly, these members consider that the Government has a responsibility to adoptive
children and to broader society to prevent adoption by same-sex couples.
The majority of members, however, consider that the gender of parents is not a significant determinant
of children’s wellbeing, and that as such, the sexual orientation of prospective parents is of no material
relevance to the best interests of adoptive children. Nor do the majority consider that the sexuality of
gay and lesbian people precludes them from being fit and proper parents, or that children in same-sex
families necessarily have insufficient access to both male and female role models. The majority of
Committee members are persuaded by the argument that an adoptive child’s best interests are
determined in the context of an assessment of the individual child’s needs and the individual
prospective parents’ capacity to meet those needs. The majority of Committee members believe that
same-sex parents should be able to be assessed on exactly the same basis as other prospective parents.
The majority note that if legally eligible to adopt, gay and lesbian people will, like all prospective
parents, be subject to a rigorous assessment process by accredited adoption agencies to determine their
suitability to adopt; they will also be subject to the preferences of relinquishing parents; and they must
ultimately satisfy a court that they can fulfil the best interests of the child concerned. The majority of
Committee members are confident in the rigour of the adoption system to continue to ensure that only
those who would make fit and proper parents go on to adopt.


In addition, the majority of members are persuaded by a number of other arguments that the best
interests of the child will be served by reform to allow adoption by same-sex couples. It is highly
desirable to broaden the pool of adoptive parents in order to increase the likelihood of the best match
between individual child and prospective parent. Also, the permanency that is so desirable for many
children in out-of-home care would be facilitated by enabling same-sex couples to adopt their foster
children.

Other States and Territories

The Committee examined the law on adoptions in other Australian States and Territories:


Adoption by same-sex couples in other Australian jurisdictions
2.56 Same-sex couples in the Australian Capital Territory (ACT) and Western Australia (WA) have
equal access to adoption with heterosexual couples. In Tasmania same-sex couples are
permitted to adopt a child who is related to a member of the couple. In all other states and
territories there is no provision for same-sex couples to adopt. In every jurisdiction same-sex
couples and individuals are permitted to provide foster care.

Australian Capital Territory
2.57 In the ACT, same-sex couples have had equal access with heterosexual couples to adoption
since 2004. The Adoption Act 1993 was changed by amendment under the Parentage Act 2004 to
replace gender specific terms such as ‘heterosexual relationship’ and ‘a man and woman’ with
the gender neutral terms of ‘domestic partnership’ and ‘2 people’ respectively.
2.58 The Adoption Act 1993 allows for adoption by two people jointly ‘who, whether married or
not, have lived together in a domestic partnership for a period of not less than three years’.
The Parentage Act 2004 amendments included the definition of a ‘domestic partnership’ as ‘the
relationship between 2 people, whether of a different or the same-sex, living together as a
couple on a genuine domestic basis’, as defined in the Legislation Act 2001.
2.59 In addition, the Parentage Act 2004 recognises the same-sex partner of a woman who has
undergone a fertilisation procedure as the parent of her partner’s child:
If the woman undergoes the procedure with the consent of her domestic partner at
the time of the procedure, the domestic partner is conclusively presumed to be a
parent of any child born as a result of the pregnancy.

Western Australia
2.60 In WA a couple may apply to adopt a child if they are married or in a de facto relationship.
In 2002, the Adoption Act 1994 was amended to remove specific references to heterosexual
couples.This amendment effectively removed the limitation on same-sex couples to apply
for adoption.
2.61 As is the case in NSW and the ACT, WA also recognises the non-biological partner of a
lesbian couple as the parent of any child that is born as a result of a fertilisation procedure, if
the partner’s consent is given at the time of the procedure. This was achieved through the Acts
Amendment (Lesbian and Gay Law Reform) Act 2002.

Tasmania
2.62 In Tasmania the Adoption Act 1988 was, from January 2004, amended to remove genderspecific
terms that had previously precluded same-sex couples from applying to adopt. Under
the Act, couples may adopt if they are married or parties to a ‘significant relationship’. A
significant relationship includes heterosexual and same-sex couples in a de facto relationship.
Couples in a significant relationship may only adopt a child if one member of the couple is a
relative or biological parent of that child.
2.63 Adoption orders can also be made in favour of one person in exceptional circumstances
which are not defined by the Act. However, that individual cannot be married or in a
significant relationship, thus preventing one member of a couple from adopting a child who is
not related to either member.

Northern Territory
2.64 In the Northern Territory (NT) people in same-sex relationships are effectively prevented
from applying to adopt as couples or as step-parents by the definition of ‘couple’ and ‘spouse’
contained in the Adoption of Children Act 1994.
2.65 In section 13, ‘Adoption by couple’, the Act specifically refers to a couple as a ‘man and
woman’. The Act also defines the term ‘couple’ as follows:
For the purposes of this Act, a reference to 2 persons or a couple in relation to a joint
adoption of a child under this Act is a reference to
(a) a man and a woman who are married; or
(b) an Aboriginal man and woman who are living together in a traditional
Aboriginal marriage.
2.66 In the category of step-parent adoption, the Act defines a step-parent as the ‘spouse’ of the
parent. The Act states:
“spouse” means a person who is married or who is living in a traditional Aboriginal
marriage in relation to the man or woman to whom he or she is married or with
whom he or she entered into the traditional Aboriginal marriage.
2.67 These definitions also effectively prevent heterosexual de facto couples from applying to
adopt.
2.68 The NT allows adoption by an individual only in exceptional circumstances. These
circumstances are not defined in the Act. However, an individual is specified in the Act as a
person who is not a relative of the child or spouse of the child’s parent, and the child must be
in the guardianship of the Minister.

Queensland
2.69 In Queensland the Adoption of Children Act 1964 prevents same-sex couples from applying to
adopt through the specific reference to joint adoption by a ‘husband and wife’. As is the
case in the NT, adoption orders can be made in favour of individuals only in exceptional
circumstances.
2.70 In April 2003, as part of Queensland’s reforms to remove discrimination against same-sex
couples, the Acts Interpretation Act 1954 was amended to include section 32DA, which defines
the term ‘de facto partner’ as follows:
In an Act, a reference to a de facto partner is a reference to either one of two persons
who are living together as a couple on a genuine domestic basis but who are not
married to each other or related by family.
2.71 The effect of this amendment did not, however, extend to adoption. In this regard, the Acts
Interpretation Act 1954 was amended so that any reference to the term ‘spouse’ in other Acts
included de facto partners, unless that legislation expressly states to the contrary, which is the
case for the Adoption of Children Act 1964.
2.72 After extensive community consultation the Queensland Government introduced into
Parliament on 10 February 2009 the Adoption Bill 2009. The bill, in its eligibility criteria,
explicitly excluded same-sex couples from adopting children. It is noted that the bill did not
pass into law as the Queensland Parliament prorogued on 23 February 2009.

South Australia
2.73 In South Australia same-sex couples are prevented from applying to adopt under both the
couple and step-parent categories.
2.74 The Adoption Act 1988 restricts joint adoption to people in a ‘marriage relationship’ and
defines a ‘marriage relationship’ as follows:
marriage relationship means the relationship between two persons cohabiting as husband
and wife or de facto husband and wife.
2.75 The Act provides for adoption by an individual person, but only under ‘special circumstances’,
which are not specified in the Act.

Victoria
2.76 In Victoria same-sex couples are prevented from applying for adoption as the Adoption Act
1984 specifically states that adoption may be made in favour of a ‘man and a woman’.
Furthermore, while couples in a de facto relationship are able to adopt, the definitions of ‘de
facto relationship’ and ‘de facto spouse’ specify a relationship that is between a man and a
woman.
2.77 Steps have been taken, however, to review the existing adoption laws in Victoria. The final
report of the Victorian Law Reform Commission (VLRC) on assisted reproductive technology
and adoption was tabled in Parliament in June 2007. The report contained the following
recommendations with regard to adoption:
67. The Adoption Act 1984 should be amended to allow the County Court to make
adoption orders in favour of same-sex couples.
68. The same-sex partner of the parent of a child should be able to apply to adopt the
child in accordance with the same criteria that apply to opposite-sex partners.
69. The Department of Human Services should review the Adoption and Permanent Care
Procedures Manual to accommodate applications by same-sex couples.
70. Adoption agency staff should receive training to provide education about
parenting by same-sex couples.
71. The Adoption Act 1984 should be amended to allow the County Court to make an
adoption order in favour of a single person in accordance with the same criteria that
apply to couples.2.78 In December 2008 the Relationships Act 2008 was passed to register and recognise the
relationships of committed adults who are not married. This legislation, however, did not
include any reforms to adoption legislation and, to date, no legislation or government action
has been taken to implement the VLRC’s recommendations.

Overseas


Overseas jurisdictions
2.79 Adoption by same-sex couples is currently legal in several overseas jurisdictions. Same-sex
couples have equal adoption rights with heterosexual couples in Andorra, Belgium, Guam,
Iceland, Israel, Norway, Spain, Sweden, South Africa and the United Kingdom. In the
Netherlands, adoption by same-sex couples is limited to Dutch children, and in Germany and
Denmark it is limited to step-parent adoptions. Adoption by same-sex couples is legal in
several provinces and territories of Canada and in several states in the United States of
America.
2.80 Adoption by same-sex couples is not permitted in the majority of countries around the world.

Arguments against same sex adoption:

  1. Parenting by a mother and a father:
    A significant number of inquiry participants stated explicitly that they considered that
    adoption by same-sex couples would not be in the best interests of children. Most but not all
    of these participants based their views on religious teaching and belief, emphasising that the
    presence of both a mother and a father, preferably in a married relationship, has a major
    bearing on the best interests of children, both in the short and longer term.
  2. The fundamental complementarity of men and women:
    Some participants who advocated that the best interests of children in the short and long term
    are served by the presence of a mother and father in a permanent, preferably married
    relationship, went on to illuminate their position by referring to the ‘fundamental
    complementarity’ between men and women embodied in motherhood and fatherhood. In
    their view, this complementarity is by nature absent from same-sex relationships, to the
    detriment of children.
  3. Doctrine, natural law, self-evident truth and research
    Several church-based organisations who participated in the inquiry advised that their views in this area are based on fundamental matters of Christian doctrine. In its submission the Catholic Archdiocese of Sydney placed Catholic teaching on marriage and the family within the context of broader social and moral instruction:
    Catholic teaching on sexuality, marriage and family is part of a much larger body of
    Catholic social and moral teaching, which includes respect for the dignity of the
    human person and the need to care for all, especially the poorest and most vulnerable.
    The Church’s teaching on sexuality and family must be understood in that wider
    context. The genuine, committed and exclusive love between a man and a woman,
    grounded in marriage, is the foundation of family life and promotes the optimum
    welfare and development of children....


Several participants voiced concern about the fitness of gay and lesbian people to parent
children. For example, the NSW Council of Churches and Family Life International suggested
that heterosexual marriages are more likely to value fidelity and exclusivity than are
homosexual relationships. The Catholic Archdiocese of Sydney also expressed this view,
stating in its submission:
[W]hile same-sex couples have no monopoly on infidelity, the evidence reflects that
married heterosexuals better value and model sexual fidelity and exclusivity. It is
highly likely that higher rates of household infidelity would impact upon children.
Placing children in domestic situations where infidelity may be more likely to occur
threatens the stable, loving environment and appropriate role modelling which are
important for the healthy development of all children, especially vulnerable ones.121
3.33 The Australian Christian Lobby noted that the Adoption Act recognises the importance of
stable, committed parental relationships. It then pointed to evidence that homosexual couples
have, on average, shorter relationships, and suggested that commitment to monogamy is
‘much less a feature of same-sex relationships than of heterosexual relationships.’ Mr
Shelton stated:
[W]e know from research from the National Centre in HIV Social Research that 57
per cent of male homosexuals are highly promiscuous. That is hardly a stable
environment in which to place a child … Promiscuity is a bad thing for any child to
have to live with in an environment where that takes place … All I am saying is that
the research shows that male homosexual relationships are notoriously unstable, they
are not generally monogamous, and this is not in the best interests of children. We are
talking about legalising same-sex adoption. I think we need to think very carefully
about the type of environment and lifestyle that currently occurs in these communities
and whether that is an appropriate environment in which to place children,
particularly when there are other alternatives available.
3.34 In its submission the Fatherhood Foundation argued that ‘[t]o legislate for homosexual
adoption is to endanger our children physically, mentally, emotionally and spiritually’, based
on the suggestion that same-sex couples are characterised by higher levels of:
• drug use and partner violence
• communicable diseases and bad health
• decreased life expectancy and
• sexual exploitation of children.

4. The limited number of children available for adoption
A number of inquiry participants including the NSW Council of Churches and the Anglican
Church, Diocese of Sydney, argued that given the limited number of children presently
available for adoption, compared with the large number of heterosexual couples willing to
adopt, there is at present no evident need to change the legislation to broaden parental
eligibility.

5. A responsibility to maintain the status quo
A number of the witnesses and submissions that argued parenting by a mother and a father
rather than a same-sex couple is in a child’s best interests emphasised the importance of
upholding the heterosexual family unit as the building block of society. Mr Meney of the
Catholic Archdiocese suggested that to depart from this model was to experiment with
children and ignore the wisdom and reality of human history:
Every society before our own has privileged heterosexual marriage as the place for the
upbringing of children because this has been sought and found to be the best situation
for all concerned. To propose alternative models of family and parenting is to be
willing to experiment on children not for their own benefit, and to be willing to
dispense with the accumulated wisdom and experience of millennia.

Adoption decisions regardless of parental gender and sexuality
3.44 The second stream of views presented in evidence to the Committee was that the best
interests of the child would be served by making adoption decisions based on the individual
needs of the child and the capacities of the prospective adoptive parents, regardless of their
gender and sexuality. This argument rejected the idea that same-sex parenting is, per se, less
than ideal or harmful to children. Participants in this stream argued that it is ‘family
functioning’ rather than family form that has the major bearing on children’s wellbeing.
3.45 This view was encapsulated in the position of Barnardos, the third accredited non-government
adoption agency in NSW, which explicitly supported adoption by same-sex couples.
Barnardos currently facilitates adoption by gay and lesbian individuals as well as foster care by
same-sex couples and individuals, in line with current legislation. It refuted the assertion that
the best interests of a child are served by the presence of both male and female parents,
focusing instead on the parenting capacities of prospective parents without regard to sexuality:
When considering the “best interests of the child”, it is often argued that children
“need” or “do better with” a mother and father. This premise is not borne out by
research, with studies showing that children with same-sex parents do at least as well
as children raised in heterosexual families. The traditional definition of a “family” has
changed from “mother, father, child/ren” and now encompasses a wide variety of
family combinations, established in a variety of ways. The focus must not be on the
“absent” mother or father, rather it must be on the capacity of the “parent” to meet
the child’s needs.
3.46 Proponents for adoption by same-sex couples cited research evidence that children raised in
same-sex families are just as well off as those raised in heterosexual-headed families.

The Gay and Lesbian Rights Lobby of NSW participated:


Responding to the suggestion that the number of children available for adoption is very
limited, and that opening up eligibility to same-sex couples would disadvantage heterosexual
prospective parents, the GLRL made several points:
• Gay and lesbian individuals are already eligible to apply to be assessed for
adoption and as such are already present in ‘the pool’ of eligible persons.
• If same-sex couples become eligible to adopt, take up would be small as same-sex
couples only account for 0.7 per cent of all married and de facto couples in NSW.
• Even if eligible to adopt, same-sex couples will not have access to the intercountry
adoption system. As a result, the majority of unknown adoptions will continue to
only consist of married couples.
3.75 The GLRL’s submission went on to argue that to speak of a ‘queue’ to adopt is to imply that
adoption is a competition between adults, rather than a child-centred service:
Finally, and most significantly, we would suggest that it is contrary to the objects of
the Adoption Act to consider the issue of same-sex couple adoption as adding to a
“queue” for children. Such an argument removes the emphasis from adoption as
being a child-centred service into adoption as a service for adults competing amongst
each other to become parents. No adult has the right to adopt a child, and
relinquishing parents and their children deserve to be given the greatest diversity of
potential households from which to choose the right home for their child.


The desirability of permanency for children in foster care
3.77 One of Barnardos’ key arguments for adoption by same-sex couples being in the best interests
of the child was that the permanency afforded by adoption is desirable for many children in
the out-of-home care system. Ms Voigt told the Committee that Barnardos believed it was in
the best interests of the children in its foster care program who were being cared for by samesex
foster parents to be adopted by them. She went on to observe:
[T]here has been quite a lot of community concern that children in foster care are
available for adoption because for those children are often have a very in-between life
in that they do not belong properly to anyone. Many of them move repeatedly.
Adoption has been shown to be a much more secure option for children in the
welfare system.


Discrimination sends the wrong message
5.37 The final core argument put forward by proponents for the removal of discrimination against
same-sex couples in relation to adoption was that discrimination, codified in law, sends the
wrong message to society. According to the GLRL, it particularly sends the wrong message to
society about risks to children and devalues the contributions of gay and lesbian people:
Same-sex adoption involves removing prejudice from the lives of lesbians, gay men
and their children. The GLRL affirms the social reality that 20 per cent of lesbians and
up to 10 per cent of gay men are already parenting with potentially thousands more
lesbians and gay men in positions of responsibility for children and/or young people.
Discrimination in adoption laws sends the wrong message about risks to children,
fuels prejudices and stereotypes against lesbians and gay men, and diminishes the
significant contributions made by lesbian and gay people towards the development,
care and education of children and young people in NSW.


Foster care and adoption by same-sex couples
At the present time in NSW same-sex couples are permitted to provide
foster care. Several inquiry participants argued that it was inconsistent for the law to allow
same-sex couples to provide foster care but to exclude them from adoption. They also argued
that for various reasons this was not in the best interests of children concerned.

Saturday, 4 July 2009

I spoke about family law and related issues this morning to the QUT Queer Collective, a pleasant outing on such a blustery day
IVF blunders destroy baby dreams: News Ltd http://ow.ly/gtnj
Study will try to trace genetic trail of bipolar disorder- Brisbane Times http://ow.ly/gteu

Thursday, 2 July 2009

Indian court decriminalises gay sex; overturns 1861 colonial era law: Australian Gay and Lesbian Law Blog http://ow.ly/glwd

Indian court overturns anti-sodomy law

The Indian High Court in Delhi has ruled that homosexual intercourse between consenting adults is not a criminal act.

The ruling overturns a colonial era 1861 law which describes sodomy and oral sex as "unnatural offences".

The judges stated:


At its least, it is clear that the constitutional protection of dignity
requires us to acknowledge the value and worth of all individuals as members of
our society. It recognises a person as a free
being who develops his or her
body and mind as he or she sees fit. At the root of the dignity is the autonomy
of the private will and a person's freedom of choice and of action .
Human
dignity rests on recognition of the physical and spiritual integrity of the
human being, his or her humanity, and his value as a person, irrespective of the
utility he can
provide to others. The expression “dignity of the individual”
finds specific mention in the Preamble to the Constitution of India.


There is a growing jurisprudence and other law related practice that
identifies a significant application of human rights law with regard to people
of diverse sexual orientations and gender identities. This development can be
seen at the international level, principally in the form of
practice related
to the United Nations – sponsored human rights treaties, as well as under the
European Convention on Human Rights. The sexual orientation and gender identity

related human rights legal doctrine can be categorised as follows:
(a)non-discrimination; (b) protection of private rights; and (c) the ensuring of
special general human rights
protection to all, regardless of sexual
orientation or gender identity.

The court cited the Jogjakarta principles:



The Yogyakarta Principles define the expression “sexual orientation” and
“gender identity” as follows:
“Sexual Orientation” is understood to refer to
each person’s capacity for profound emotional, affectional and sexual attraction
to, and intimate and sexual relations with, individuals of a different gender or
the same gender or more than one gender;”
“Gender Identity” is understood to
refer to each person’s deeply felt internal and individual experience of gender,
which may or may not correspond with the sex assigned at birth, including the
personal sense of the body (which may involve, if freely chosen, modification of
bodily appearance or function by medical, surgical or other means) and other
expressions of gender, including dress, speech and mannerisms.”

The Principles recognise:
 Human beings of all sexual orientation
and gender identities are entitled to the full enjoyment of all human
rights;
 All persons are entitled to enjoy the right to privacy, regardless
of sexual orientation or gender identity;
 Every citizen has a right to take
part in the conduct of public affairs including the right to
stand for
elected office, to participate in the formulation of policies affecting their
welfare, and
to have equal access to all levels of public service and
employment in public functions, without
discrimination on the basis of sexual
orientation or gender identity.

The court held that the law:


denies a person's dignity and criminalises his or her core identity solely on
account of his or her sexuality and thus violates ...the Constitution. As it
stands, [the law] denies a gay person a right to full personhood which is
implicit in notion of life under ... the Constitution.

The court stated:


The studies conducted in different parts of world including India show that
the criminalisation of same-sex conduct has a negative impact on the lives of
these people. Even when the penal provisions are not enforced, they reduce gay
men or women to what one author has referred to as “unapprehended felons”, thus
entrenching stigma and encouraging discrimination in different spheres of life.
Apart from misery and fear, a few of the more obvious consequences are
harassment, blackmail, extortion and discrimination. There is extensive material
placed on the
record in the form of affidavits, authoritative reports by well
known agencies and judgments that testify to a widespread use of [the law] to
brutalise MSM and gay community....


The criminalisation of homosexuality condemns in perpetuity a sizable
section of society and forces them to live their lives in the shadow of
harassment, exploitation, humiliation, cruel
and degrading treatment at the
hands of the law enforcement machinery.

The court talked of the growing consensus to decriminalise anti-gay
laws:


Since 1967 the process of change has informed legal attitude towards
sexual orientation. This process has culminated in the de-criminalisation of
sodomy in private between consenting adults, in several jurisdictions. The
superior courts in some of these jurisdictions have struck
down anti-sodomy
laws, where such laws remain on the statute book. In 1967 in England and Wales
and in 1980 in Scotland sodomy between consenting adult males in private was
de-criminalised.

However, in Northern Ireland the criminal law relating to sodomy
remained unchanged. In 1982, in pursuance of the decision of the ECHR in Dudgeon
v. United Kingdom (supra), sodomy between adult consenting males in private was
de-criminalised in Northern Ireland. The same conclusion was reached in 1988 in
Norris v. Ireland (supra) and Ireland repealed sodomy laws in 1993.

Laws prohibiting homosexual activity between consenting adults in
private having eradicated within 23 member-states that had joined the Council of
Europe in 1989 and of the 10
European countries that had joined since (as at
10th February, 1995), nine had de-criminalised sodomy laws either before or
shortly after their membership applications were granted.

In Australia, all the States with the exception of Tasmania, had by 1982
de-criminalised sexual acts in private between consenting adults and had also
passed antidiscrimination laws which prohibited discrimination on the ground,
amongst others, of sexual orientation. Tasmania
repealed offending sections
in its Criminal Code in 1997 in view of the decision of United Nations Human
Rights Committee in Toonen v. Australia.

Consensual sexual relations between adult males have been de-criminalised
in New Zealand.

In Canada, consensual adult sodomy (“Buggery”) and so-called “gross
indecency” were decriminalised by statute in 1989 in respect of such acts
committed in private between 21 years and older which was subsequently brought
down to age of 18 years or more.

In United States of America though the challenge to sodomy laws was turned
down in Bowers v. Hardwick (supra), but subsequently in Lawrence v.Texas, the
sodomy laws insofar as between consenting adults in private were struck
down.

A number of open democratic societies have turned their backs to
criminalisation of sodomy laws in private between consenting adults despite the
fact that sexual orientation is not expressly protected in the equality
provisions of their constitutions. Homosexuality has been de-criminalised in
several countries of Asia, Africa and South America. The High Court of Hongkong
in its judgments in Leung T.C.William Roy v. Secy for Justice, dated 24th
August, 2005 and 20th September, 2006 struck down similar sodomy laws. To the
same effect is the judgment of the
High Court of Fiji in Dhirendra Nandan
& Another v. State, Criminal Appeal Case No. HAA 85 & 86 of 2005,
decided on 26th August, 2005. Nepalese Supreme Court has also struck down the
laws criminalising homosexuality in 2008 [Supreme Court of Nepal, Division
Bench, Initial Note of the Decision 21.12.2007].

On 18th “December, 2008, in New York, the UN General Assembly was
presented with a statement endorsed by 66 States from around the world calling
for an end to discrimination based on sexual orientation and gender identity.
The statement, read out by the UN Representative for Argentina Jorge Arguella,
condemns violence, harassment, discrimination, exclusion, stigmatisation, and
prejudice based on sexual orientation and gender identity. It
also condemns
killings and executions, torture, arbitrary arrest, and deprivation of economic,
social, and cultural rights on those grounds. The statement read at the General
Assembly reaffirms existing protections for human rights in international law.
It builds on a previous joint statement supported by 54 countries, which Norway
delivered at the UN Human Rights Council in 2006. UN High Commissioner for Human
Rights, who addressed the General Assembly via
a video taped message
stated:
“Ironically many of these laws, like Apartheid laws that criminalised
sexual relations between consenting adults of different races, are relics of the
colonial and are increasingly recognised as anachronistic and as inconsistent
both with international law and with traditional values of dignity,
inclusion and respect for all.”



The ruling echoes that of the US Supreme Court in Lawrence v Texas in 2003 which outlawed anti-sodomy laws in the US.

The judgment is available here [PDF]. For commentary, see here and here.

Thanks to Bob, for bringing the decision to my attention.

Wednesday, 1 July 2009

California Evidence-based Clearinghouse for Child Welfare adds another 7 screening and assessment tools: http://ow.ly/gfHj
Lesbian couple allowed to be foster parents, but banned from adopting: Govt to entrench those rules: Bne Times http://ow.ly/gfGB
Breastfeeding research may have impact in Family Court: Australian Divorce Blog http://ow.ly/gfFN