Title : The Changing Concept of Family: The Significance of : Recognition and Protection Author : The Hon Justice Alastair Nicholson AO RFD Organisation : Chief Justice of the Family Court of Australia Keywords : Homosexuality, Gay and lesbian legal rights, : Discrimination, Equality, Law reform, Equal : opportunity Abstract : In this, the closing address to "Sexual Orientation : and the Law", the Chief Justice of the Family Court : of Australia speaks of the response of the media and : the public to his earlier calls for the legal : recognition of same-sex relationships. Citation : E Law - Murdoch University Electronic Journal of Law, : Vol 3, No 3, (September 1996) ISSN : 1321-8247 Filename : nicholso.txt Ftp location : www.murdoch.edu.au/pub/elaw/issues/v3n3/ File size : 45K File type : Document File format : ASCII Contact : elaw-editors@central.murdoch.edu.au Copyright : E Law and author; details on the web page --------------------------------------------------------------------- The Changing Concept of Family: The Significance of Recognition and Protection The Hon Justice Alastair Nicholson AO RFD Chief Justice of the Family Court of Australia INTRODUCTION 1. I would like to thank the organisers for inviting me to give the closing address to this most important human rights seminar. The calibre of the speakers you have heard today underlines the importance of reforming the law as it relates to sexual orientation. I regret that I could not be here for the entire day but a rather hectic schedule of commitments in other States made this unavoidable. 2. I would like to begin by complimenting the organisers of today's conference on their choice of structure for this seminar. I think that it is appropriate, both conceptually and strategically, for a seminar such as this to simultaneously address the issues of anti-discrimination legislation and family law. 3. It makes conceptual sense because laws outlawing discrimination should serve as more than a source of enforceable rights and protections; they should also provide a basis for shifting prejudicial community attitudes. These only change when a society truly recognises the humanity of the group who have been enduring discrimination and, to my mind, nothing can be more central to a definition of humanity than respect for the importance each of us places upon enduring relationships. 4. Equal opportunity law may and often does give a person access to important individual remedies for certain forms of discrimination. Its importance should not be understated. Irrespective of the number of complaints lodged, which may be small for reasons that I will discuss, such laws have both an educative function so far as the community at large is concerned and a deterrent function, so far as potential discriminators are concerned. For these reasons I support the introduction of laws in this State prohibiting discrimination against persons on the ground of sexual preference. 5. However, it must also be recognised that such laws have limitations, as indeed does any legislative intervention into the sensitive area of human relationships. 6. All too often, as other speakers have pointed out, the anti-discrimination laws contain unsatisfactory compromise provisions to appease the more conservative wings of the parties introducing them. The laying of a complaint under them exposes the complainant to a process that may be bewildering or embarrassing and in some cases, expensive. In addition, such laws contain no acknowledgment that gay men and lesbians possess and express the most human of qualities - love and commitment through relationships. 7. I believe that without the recognition of all family relationships, equality - the cornerstone of democratic society - is missing; public acknowledgment of private affections, commitments, interdependencies and identities is denied. 8. For this seminar to pay attention to both family and anti-discrimination law is also a sensible strategic choice. This is because arguments for the inclusion of sexual orientation as a prohibited ground of discrimination are likely to be met with confused claims that doing so is a dangerous domino: that it will lead to the demise of the so-called traditional family and the opening up of a Pandora's Box of unintended and undesirable consequences.[1] 9. One of the most politically potent but patently false ideas is that the recognition of lesbian and gay men's relationships will somehow encourage those who would otherwise be heterosexual to opt instead for a same-sex relationship. To the degree that sexuality is a fluid human characteristic, it strikes me as absurd to imagine that the achievement of limited legal protections would induce someone to reorient their sexuality. It seems to me that politicians take themselves far too seriously if they really believe that any legislation they pass will have any effect, one way or the other, upon this issue. All that such legislation will do and this is reason enough for it, is to provide that people whose sexual orientation is towards a same sex relationship will be treated equally with the rest of the community so far as the law is concerned. 10. The victimisation studies cited in Anna Chapman's paper clearly show that the introduction of law reforms is no solution in itself to prejudice, hostility and violence against gay men and lesbians. 11. The argument about encouragement is closely related to the equally misguided belief that homosexuals are prone to attempt to "corrupt" children. As noted today by both June Williams and Anna Chapman, this myth is an unfortunate feature of the anti-discrimination statutes of some other States and appears particularly strongly in the preamble to the 1989 Western Australian Act, which decriminalised male homosexual acts between adults over a certain age.[2] 12. The tendency to confuse homosexuality with paedophilia has been commented upon in a number of papers today. Such a stereotype reflects the inability or refusal of some people to understand that the exploitation, harassment and assault of children and young people is a harm related to sexuality as such, without regard to sexual preference and in most instances, but not all, to masculinity. The important point is that there is no evidence to support the proposition that it bears any relationship to homosexuality whatsoever. *"Most perpetrators of child abuse identify as heterosexual men and their victims are predominantly female."*[3] It is therefore plainly spurious to confuse calls for law reform with concern about the propensity of some to abuse their power and trust. This was an illogical and unsavoury feature of some of the opposition[4] to the recent "lawful sexual behaviour" amendment to Victoria's Equal Opportunity Act, and one which I hope will not be repeated by Western Australian parliamentarians or the media. 13. What must be properly understood is that the real effect of refusing to acknowledge and provide protections to same-sex relationships is to fail to recognise nothing else but relationships and the meanings they give to an individual's life. This current state of the law smacks of society punishing otherwise law-abiding members for a sexual orientation that is, in and of itself, lawful. 14. And to what gain? Legal denial and intolerance achieve nothing but an insult to the dignity of recognition that every family treasures and has the right to expect in a country which supposedly supports tolerance for peaceful differences among its members. 15. To continue to ignore the rights of same-sex individuals and their relationships is a pyrrhic achievement of which no government ought to be proud. Denying someone the right to be known as a committed partner to a relationship, simply on the basis of the gender of the partners, is no different to apartheid. Writing of the resistance to same-sex relationships in American society, Herma Hill Kay, Professor of Law at the University of California Berkeley made an observation that applies equally here: "Just as the existence of racially mixed families once challenged the legitimacy of white supremacy in ways that strengthened the social fabric in the United States, so may the contemporary example of stable same-sex families ultimately lead to a richer and more diverse social and cultural life." [5] 16. I am here today as the Chief Justice of the Family Court because I value positive consensual relationships. As a barrister, Supreme Court Judge and Chief Justice of the Family Court of Australia, the vast majority of harms seen in my work have arisen from violence, abuses of power and broken commitments and not to the fact that some people prefer same sex relationships. To value and respect those who wish to stand connected to each other and accountable to each other in the face of intolerance, is a cause that deserves support. 17. I am also here today because I value human rights and the principle of equal treatment. These are precious bulwarks against vulnerability and oppression and it is almost axiomatic that the clearest perception of the need for these rights comes from those who lack them. 18. The catch cry that is often heard, as it is with aboriginal and even feminist groups, that lesbians and gay men are seeking "special rights" has no foundation. It is simply a case of the law having failed to provide the equal protection to which they are entitled by virtue of their essential humanity. As I understand the proposals for change under consideration in this state, none bear any resemblance to the somewhat charged legal concept of affirmative action. The calls for law reform are to end the current harms caused by inequality and the refusal to acknowledge that gay men and lesbians have and do lead family lives that should not be denigrated by legal invisibility. 19. To my mind, anyone who stands by the values of commitment, relationships and equal protection should support legislative measures that outlaw discrimination and recognise same-sex relationships. Otherwise, they are shareholders in unwarranted fear and prejudice, a stock that, unfortunately, is held dear by too many in this country. Inevitably, some of our politicians reflect these feelings, but I find it hard to believe that a majority of them do so, when and if they are confronted with the overwhelming logic of the contrary position. 20. I have a little relevant experience in the controversy that attends these matters. In fact I suspect that the organisers thought to ask me because of comments I made on the value of recognising same-sex relationships, remarks which attracted substantial media attention early last year. I therefore thought that it might be of interest to briefly recall that episode because it contained some lessons which may be instructive. MY ADDRESS TO ST MARK'S THEOLOGICAL COLLEGE 21. Two years ago in Canberra in September, I was invited to address the St Mark's Theological Centre on the topic of *Perceptions of the Australian Family.*[6] In my address, I was critical of the "sterile debate" that had taken place in the International Year of the Family over what constituted a family and the lack of practical measures to aid those families most in need. In the course of my paper, I drew attention to the economic plight of mothers without partners and the increased suffering of a generation of children arising from what I see as the preoccupation of governments with economic rationalism. 22. On the night I delivered the speech, I had no reason to believe that it had been a particularly controversial address, let alone radical or revolutionary. I therefore found it surprising to receive a telephone call in late December from a journalist who, I assume, had seen of a copy of the printed speech when it appeared in the Theological Centre's journal. 23. I do not know what she thought might have occurred in the few months since making the speech, but she asked me whether I still stood by a particular sentence in that address - that our understanding of family, and I quote: "may, in my belief, extend to people living in permanent homosexual as well as heterosexual relationships and I think it more than time that we and the law recognised this."[7] 24. Needless to say, I told her that I did stand by that view, and woke up on January 3rd to find that the front page of the Sydney Morning Herald was ablaze with the headline "Judge: give gay couples equality". 25. Now, as many of you may know, the Christmas and New Year period is the slow time for news, and attention to my comments served both the interests of the media industry and those who opposed my view. What followed bore little resemblance to what I had said about the undesirability of setting rigid limits on what a family can be and it was an interesting circus for a number of reasons. The Media Treatment 26. First, it seems to me that the media were preoccupied with the sensation of a Chief Justice speaking about same-sex relationships despite the fact that it was not a central feature of my speech.[8] The media's agenda, I think, was to generate conflict which they could then report. Little room was left for me to describe the context of those remarks which was my continuing concern that there are various types of deeply felt relationships which, despite their importance, still lack legal recognition. 27. The concerns that I addressed in that speech were not limited to same-sex couples. I also addressed the still unresolved problem of the fragmented laws relating to heterosexual couples living in de facto relationships. Also, shortly prior to giving the St Mark's address, I had just returned from visiting Torres Strait Islander communities as part of the Court's on-going commitment to improve the relevance and accessibility of its services to remote areas. I was particularly interested during these community consultations by the traditional adoption practices of the Islander peoples, examples of this being brothers giving a child to a childless sister and both child and sister accepting full parent-child relationships.[9] 28. It was telling that in my subsequent interviews, when I tried to explain the problem of these relationships remaining unrecognised by law and that de facto heterosexual families still face unnecessary inequalities, journalists were more pre-occupied with how I felt about the adverse reaction to my suggestion about recognising same-sex relationships. There was little interest in teasing out the significance of denying legal status, not only for the adults involved, but for the children in these families. The Reaction To My Comments 29. The public reaction to my comments was also instructive. Both the Federal Labour and Liberal parties were rather quiet on the subject but interestingly, the Young Liberals appeared to adopt a supportive stance.[10] One of the most unusual responses from a politician was that my remarks reflected *"narrow cast but very trendy beliefs"*[11] - a rather unusual claim to fame for a Judge! They were also considered *"an attack on the institution of the family"* and a step towards a *"non-reproductive society"* which had to be fought *"tooth and nail"*.[12] 30. Fortunately, the then Attorney-General and Minister for Health in the Australian Capital Territory was able to reassure the public that this fear was unfounded. Mr. Terry Connolly said that the passing of the Territory's Domestic Relationships Act, according equivalent treatment of property settlement to same-sex couples, had not had any effect on birth rates in Canberra; *"On the contrary"* he said, *"we recently opened our third Maternity unit"*.[13] 31. The Australian Newspaper's editorial said that my suggestion was *"unrealistic"*[14] and its columnist, B.A. Santamaria, wrote that my remarks illustrated: "the well-known phenomenon of the "slippery slope". Once one foundational principle [and by this Mr. Santamaria meant "family"] is compromised, it becomes only too easy to compromise the next. No firm ground is left on which to stand."[15] 32. When I look back on the media treatment of the issue at the time I made my comments, it strikes me that the push down the *"slippery slope"* mentioned by Mr. Santamaria, was coming from opponents to law reform. The suggestion that relationships be recognised was transformed by some into a warning against the redefinition of marriage.[16] Such a connection was not mentioned in my remarks nor as I recall, by those who spoke on behalf of the lesbian and gay community. The slope itself must be a fairly gentle one since the slide seems to have been well under way in Athens in 400 BC. Same-sex Marriage 33. I do not find the lack of comment on the question of marriage from lesbian and gay commentators surprising. First, despite the claims of those who would see the redefinition of marriage as the ultimate goal, I am conscious that there are wide-ranging views on this issue within the lesbian and gay community, including those who are staunchly opposed to extending the institution of marriage. 34. For example, at the First World Congress on Family Law and Children's Rights held in Sydney during 1993, Hayley Katzen delivered a paper on the legal recognition of lesbian and gay men's relationships which suggested to me that access to "marriage" was not a common goal, at least within the Sydney community.[17] Rather, the principal concern was recognition of their relationships and an end to the social, legal and economic disadvantages which accompany having a same-sex partner. 35. Secondly, I would venture to suggest that advocates for reform are conscious that to speak of same-sex marriages "ups" the symbolic ante. Those opposed to the concept of same-sex relationships are very aware of the currency of drawing the link with marriage and in some cases may do so as a deliberate tactic to stifle more modest law reform. Other opponents may be conscious that there have been recent attempts to redefine the meaning of marriage in other countries with a similar legal tradition to that of Australia, such as the United States,[18] Canada[19] and New Zealand,[20] and may assume that such an agenda is at play locally too. 36. It therefore seems to me that lobbyists for reform need to plan their approach with a recognition that these overseas challenges do impact upon the perceptions of Australians and that whatever the pros or cons of the issue, the concept of "marriage" carries a meaning which is powerfully infused with tradition, history and religion, even more so than the concept of "family". 37. I think that it must also be remembered that marriage carries with it strong religious connotations for many people and that the law of marriage itself is directly descended from concepts developed originally within the Eastern and Western branches of the ancient Catholic Church and latterly, so far as this country is concerned, by the Ecclesiastical Courts in England, applying the dogma of the Church of England. 38. It is true that as a matter of law it is now a secular institution, but it is rarely treated as such by the public or by legislators. 39. The recent Parliamentary Select Committee on Family Law, which recommended the legal recognition of de facto relationships, was careful to say that this should not be achieved by the simple recognition of such relationships in the Family Law Act, but rather by enacting separate legislation which would not afford to de facto heterosexual partners the same recognition as would be given to parties to a marriage. 40. It is instructive to observe how far behind this country is on issues such as this when compared to Canada with its Charter. In this country a Bill of Rights is anathema to most conservative lawyers and politicians and quite a few on the Labor side of politics. 41. It may also be helpful for law reform advocates to repeatedly make it clear that a change to the recognition of same-sex relationships in Western Australia will have no effect on the definition of marriage because this is a matter of Commonwealth law. [21] While this may seem obvious to this audience, I think that the issues can easily merge and blur for the public. 42. As my small experience in this matter has shown me, the media have an important role to play in keeping the issues clear and I think there is a good deal of benefit that comes from explaining to journalists and to politicians what is not within the ambit of the reforms they propose. The Correspondence 43. The hostile correspondence after my comments hit the press were a troubling indication of the misunderstanding, fear and frank prejudice that lies in the community. Some of the letters to my chambers were rather vitriolic. Writers speculated on my underlying personal motives, quite often providing me with extensive quotations from the Scriptures. 44. Some who wrote to me called for my impeachment and this made for a touch of irony, because at least one newspaper columnist had suggested that my stance was part of a supposed bid to be appointed to fill a vacancy on the High Court.[22] The logical link escaped me then as it does now, when one considers the position of the Government at that time on the Tasmanian criminal law against consenting sex between adult men. 45. In contrast, the letters from those who supported my stance were often very moving. What touched me particularly were the encouraging sentiments of the parents and friends of gay men and lesbians, people who are too often forgotten in the furore of debate. They explained the damaging consequences of a lack of societal respect for their children, and told of how social and legal blindness to their children's relationships placed stress upon the entire extended family. It left me wondering whether any of the protagonists had really stopped to think that lesbians and gay men were part of a wider family context and I, as a parent, was left wondering how I would feel if my grown-up children were talked about in the tones of derision that crossed my desk in the newspapers and letters. 46. One letter that I particularly recall came from an adult man brought up by his mother and her long-term female partner. His letter spoke of the sadness and frustration he had continually felt at society's refusal to acknowledge the legitimacy and the value of the parents he cherished. The parents he respected were being denied that same basic human right of respect by the laws of the community. THE SIGNIFICANCE OF RESPECT 47. It is this concern for respect which unites human rights proponents and it is the denial of respect which underpins discrimination. 48. In a recent judgment, Madame Justice L'Heureux-Dube of the Supreme Court of Canada captured the essence of this issue when she wrote: "...inherent dignity is at the heart of individual rights in a free and democratic society...Equality means that our society cannot tolerate legislative distinctions that treat certain people as second-class citizens, that demean them, that treat them as less than capable for no good reason, or that otherwise offend fundamental human dignity."[23] 49. Her comments were made in the landmark 1995 case of *Egan v Canada* brought by two men who had been living in a relationship for nearly 50 years by the time it was decided by the Supreme Court of Canada. It was a case under the Canadian Charter of Rights and Freedoms which enables federal and provincial legislation to be challenged as discriminatory on certain grounds. 50. As you have already heard today, in *Egan*, the partners submitted that it was discriminatory to deny them a social security supplement which would have been paid if they had been an opposite sex couple. Although they did not succeed in their specific claim, it was the first unanimous recognition by the highest Court in Canada, that sexual orientation is a recognised ground of discrimination under the Charter. 51. In considering why they did not succeed it is instructive to look to the joint judgment of four of the five Judges in *Egan's case* who found against the plaintiffs.[24] Defining a Family: Children or Interdependence and Commitment? 52. Underlying their Honours' judgment is a view that the legal notion of "family" should be defined with reference to the functions of this social unit. In this regard, they elevated the procreation and raising of children to the point of being definitive of the meaning of "family" and considered the social and legal acceptance and support of de facto heterosexual families as somewhat of a concession to *"the social reality that increasing numbers choose not to enter a legal marriage"*.[25] They said that extending support to unmarried families was warranted in order to avoid the poverty which is more often faced by sole parents' children and the greater *"burdens"* such children often place on society.[26] 53. Whatever one's view of how the state goes about it, society will always have and, in my view, should always have, an interest in recognising and protecting the family unit because it is the natural environment for children to be nurtured and developed. To hold this view passionately does not, however, justify or logically lead to the withholding of recognition and protection to relationships which do not have the raising of children as their raison detre. Such relationships are by no means confined to same sex relationships. 54. In my view, it is not procreation that defines a family relationship, it is the commitment and the financial and emotional interdependence of family members. To alienate families with these qualities but who are different to the so called "traditional" form, is both unnecessary and counter-productive. It is reminiscent of the legal and social chauvinism that has been largely, but not entirely, dispelled in respect of so-called illegitimate children. 55. One of the fundamental misconceptions which plagues the issue is the failure to understand that heterosexual family life in no way gains stature, security and respect by the denigration or refusal to acknowledge same-sex families. The sum social good is, in fact reduced, because when a community refuses to recognise and protect the genuine commitments made by its members, the state acts against everybody's interests. This is because it alienates ordinary people whose commitments represent an investment in the shared social order and the values which are promoted by it.[27] 56. Madame Justice L'Heureux-Dube put it elegantly when she wrote: "It is possible to be pro-family without rejecting less traditional family forms. It is not anti-family to support protection for non-traditional families. The traditional family is not the only family form, and non-traditional family forms may equally advance true family values."[28] 57. Those who would emphasise the difference between same-sex and heterosexual families either unwittingly or deliberately cast lesbian and gay men's relationships as fundamentally and uniformly different and foreign. Such an assumption is simply insupportable. Social science research and common experience consistently tell us that diversity is the norm and, to quote one eminent sociologist, Professor Margrit Eichler: "Overall, the differences among opposite-sex couples and among same-sex couples are greater than the differences *between* these two groups." (emphasis in original).[29] Family Law and Diverse Families. 58. It is precisely this diversity of individuals and families and their circumstances which presents in family law matters every day. Sexual orientation is no basis upon which to make assumptions about the quality of an individual's relationships or the parenting capacities of a person. That is why sexual orientation, in and of itself, has been held to be an irrelevant matter in disputes about children under the Family Law Act unless it somehow impinges upon the best interests of the child.[30] 59. To the extent that such potential effects are relevant, Justice Wooten in the Supreme Court of New South Wales correctly observed that such matters are *"equally applicable to [the] heterosexual relationships of parents"*.[31] In saying this, I am conscious that additional questions are seen to be posed when the Courts evaluate lesbian and gay applicants and their proposals for the care of their children, that are not found in cases where a parent's sexual orientation or partner is heterosexual. 60. I am aware that there have been criticisms of the approach taken in some Family Court cases, [32] particularly the first instance 1983 decision *L and L*,[33] which suggested that a court faced with a homosexual applicant should consider a "checklist" of factors such as the following: "Whether children raised by homosexual parents may themselves become homosexual, or whether such an event is likely. ... Whether a homosexual parent would show the same love and responsibility as a heterosexual parent. ... Whether homosexual parents will give a balanced sex education to their children and take a balanced approach to sexual matters."[34] 61. I can appreciate why it is said that these matters begin from an improper footing because such an a *priori* list of factors seems to presume that such differences may be expected when the applicant is a gay man or a lesbian as against a heterosexual parent.[35] Interestingly, the correctness of the L and L approach has not been the subject of challenge before a Full Court. 62. I cannot say what a Full Court would do with such an issue, but I would hope that the passage of years and the resulting change in community attitudes would be reflected in the Court's consideration of the matter 63. Related issues did, however, arise in the Canadian adoption case of *Re K*[36] which was discussed in Jenni Millbank's paper as an illustration of a successful challenge to statutory definitions. As you will recall, this was a case brought by four lesbian couples under the Canadian Charter of Rights and Freedoms. In each of the couples, one partner was the birth mother to the child or children under consideration. The Ontario law permitted an adoption application by "one individual" (without regard to sexual orientation) or "jointly by two individuals who are spouses of one another" (married or unmarried). Since the couples did not meet the definition of spouse, the practical problem was that the non-birth mother could not apply as an individual without extinguishing the birth mother's legal connection to the child.[37] 64. In essence, the question which faced Judge Nevins was whether the couples should be permitted to apply to jointly adopt the children that each was already parenting. He found that the barrier to joint adoption was discriminatory and, to use the language of the Charter, not *"demonstrably justified in a free and democratic society."*[38] The substantive adoption applications went on to be determined according to the well-known basis of the "child's best interests" test. 65. For my purposes today, I would draw attention to the examination within Re K of social science research findings, because Judge Nevins had before him highly regarded expert evidence in the fields of sociology,[39] psychology,[40] and psychiatry,[41] *"on the ability of homosexual persons to parent, individually or as couples"*.[42] It led his Honour to find that there is no rational basis for negative stereotypical beliefs about the mental health and relationship stability of such parents or the psychological profiles of their children, and I quote: "there is no cogent evidence that homosexual couples are unable to provide the very type of family environment that the legislation attempts to foster, protect and encourage, at least to the same extent as "traditional" families parented by heterosexual couples".[43] 66. I would take a great deal of persuading that the same conclusion does not apply in Australia. Indeed, one of our longest serving Judges, Justice Lindenmayer said in a very early Family Court case on the subject: "A court of law must act upon evidence not upon assumption or theory ... there is no basis upon which it could be suggested that the Court should judicially notice that a practicing homosexual parent cannot provide as good and healthy an upbringing for his or her children as a heterosexual one." [44] 67. While the Family Law Act itself does not contain the same discriminatory premises that were challenged in *Re K*, I accept that any process of decision-making carries with it the risk that assumption will take the place of evidence. Indeed, a major educative theme within the Court has been the promotion of greater awareness to issues of gender and race, and the risk of decisions containing unintentional biases based on stereotypes unsupported by evidence in a particular case.[45] To date, the Court has not paid direct attention to issues of sexual orientation in these programs but there is scope for that to occur and, as pointed out in June Williams' paper, stereotyped notions of male homosexuality and lesbianism are interwoven with concepts of gender roles, and what is thought to be appropriate conformity to them. 68. One of the most heartening features of the Court's gender and Aboriginal and Torres Strait Islander Awareness programs, to me at least, has been the fact that it has led to an increased self questioning by the participants of their approach to stereotypes and an enthusiasm to confront other areas, such as this one, where stereotypical thinking abounds. CONCLUDING COMMENTS 69. By way of conclusion, I would like to take us back to a quote from a speech in another time on another issue. The words are from an Englishman speaking in 1833 on a matter which, like so many matters seen in a historical perspective, seems a little self evident. It is the speech of Thomas Babington Macaulay advocating in favour of full political equality for Jews in England: Mr. Babington said of his opponent: "The plain truth is that my honourable friend is drawn in one direction by his opinions, and in a directly opposite direction by his excellent heart. He halts between two opinions. He tries to make a compromise between principles which admit of no compromise. He goes a certain way in intolerance. Then he stops, without being able to give a reason for stopping. But I know the reason. It is his humanity. Those who formerly dragged the Jew at a horse's tail and singed his beard with blazing furze- bushes, were much worse men than my honourable friend; but they were more consistent than he."[46] 70. Australia would do well to have more Honourable Members who could be described in these terms, as unable to give a reason for their opposition to human rights because of their "humanity". This does not seem to have been the case here so far on the subject of sexual orientation. 71. Hopefully, this seminar will make a difference. I hope it provides the necessary impetus for the legislators of this State to question any reluctance they may have to law reform, and the assumptions which underlie it. 72. Most of all I hope this seminar leads them to rethink their humanity and to wonder what it must be like to be denied a pivotal feature of one's humanity for purposes which, I must say, seem to pander to irrational fear and prejudice. 73. I wish you well in the pursuit of your goals: recognition and respect for your human right, and that of your children, to laws that assure and deliver equal and fair treatment. As a judge, these are my lode stars and I hope that your legislators can lead as well as navigate towards this future for lesbians, gay men and their families. 74. I thank you for inviting me here today. Notes [1] See the discussion of the recent changes to Victoria's *Equal Opportunity Act* in Morgan, W. (1996) 'Still in the Closet: The Heterosexism of Equal Opportunity Law' Vol 1 No 2 *Critical inquiries*, pp. 119 - 146. [2] See the preamble to the *Law Reform (Decriminalisation of Sodomy) Act* 1989 (W.A.) which includes *"AND WHEREAS, in particular the Parliament disapproves of persons with care supervision or authority over young persons urging them to adopt homosexuality as a lifestyle and disapproves of instrumentalities of the State so doing..."* [3] Morgan, W. and Walker, K. (1995) 'Rejecting (In)tolerance : Tolerance and Homosex' Vol. 20 No. 1 *Melbourne University Law Review* 214. [4] Morgan *op. cit.*; Stewart, M. (1996) 'Equal Opportunity Except for you...and you... and you' Vol. 20 No. 4 *Alternative Law Journal* pp. 196 - 197. [5] Kay, H.H. (1991) 'Private Choices and Public Policy' Vol. 5 No. 1 *Australian Journal of Family Law*, p. 84. [6] (1995) *St Mark's Review*, No. 160, pp. 11 - 16. [7] (1995) *St Mark's Review*, No. 160, p. 12. [8] See the letter by Mr. Len Glare, Chief Executive Officer of the Family Court of Australia in The Sydney Morning Herald 7 February 1995. [9] See Australian Law Reform Commission (1986) *The Recognition of Aboriginal Customary Laws, Report No 31*, A.G.P.S. Canberra; Nicholson, A. (1995) 'Indigenous Customary Law and Australian Family Law' *Family Matters*, No. 42, pp. 24 - 29. [10] 'Young Libs in pro-gay move', The Sydney Morning Herald, 6 January 1995. [11] National Party leader Mr. Tim Fischer, The Canberra Times 6 January 1995. [12] National Party leader Mr. Tim Fischer, The Australian 5 January 1995. [13] The Canberra Times 6 January 1995. [14] The Weekend Australian 7-8 January 1995. [15] The Weekend Australian 14-15 January 1995. [16] The Mercury 6 January 1995. [17] Katzen, H. (1993) 'The Bride Wore Pink - Legal Recognition of Lesbian and Gay Relationships' *First World Congress on Family Law and Children's Rights - Congress Papers*, pp. 721 - 731. [18] *Baehr v Lewin* (1993) 74 Haw 539. [19] *Layland v Ontario* (1993) 104 DLR (44th) 214. [20] *Quilter and Pearl and Others v The Attorney-General (sued in respect of) The Registrar General of Births Deaths and Marriages*, not yet reported, High Court of New Zealand at Auckland, 28 May 1996 per Kerr J. [21] See Lauw, I. (1994) 'Recognition of Same-Sex Marriage: Time for Change?' Vol. 1 No. 3 E Law - Murdoch University Electronic Journal of Law. As to attempt to reinterpret the meaning of the words "husband" and "wife" to incorporate same-sex partners see *Re Brown and Commissioner for Superannuation* (1995) 38 ALD 344 where the Administrative Appeals Tribunal said it gave them "no joy" to find that the surviving partner to a homosexual relationship was not entitled to a spouse benefit under the Superannuation Act 1976 (Cth). [22] P.P. McGuiness "Justice Needs a Public Airing", The Sydney Morning Herald 27 January 1995. [23] *Egan v Canada* (1995) 12 RFL (4th) 201 at 228. [24] La Forest J with whom Lamer CJC, Gonthier and Major JJ concurred. [25] *Egan's case* at 223. [26] *Egan's case* at 224. [27] Sullivan, A. (1995) *Virtually Normal - An Argument About Homosexuality*, Picador, London. [28] L'Heureux-Dube J in *Canada (Attorney-General) v. Mossop* [1993] 1 SCR 554 at 634. [29] Nevins Prov J in *Re K* (1995) 15 RFL (4th) 129 at 142 quoting Dr. Margrit Eichler, Professor and Chair of Sociology at the Ontario Institute for Studies in Education and the University of Toronto. [30] See the discussion in the Australian case of *Re K* (1994) FLC 92-461 at 80,774. [31] *Jarman v Lloyd* (1982) 8 Fam LR 878 at 890, a case prior to the referral of powers in respect of ex nuptial children by the States. [32] Millbank, J. (1992) 'Lesbian Mothers, Gay Fathers: Sameness and Difference' Vol 2 *Australian Gay and Lesbian Law Journal*, p21; Bateman, M. (1992) 'Lesbians, Gays and Child Custody: An Australian Legal History' Vol 1 *Australian Gay and Lesbian Law Journal*, p47. [33] *L and L* (1983) FLC 91-353. [34] *L and L* (1983) FLC 91-353 applied in *Doyle and Doyle* (1992) FLC 92-286. [35] Similar concerns have been raised in respect of Canadian decisions see Casey, S. (1994) 'Homosexual Parents and Canadian Child Custody Law' Vol. 32 No. 3 *Family and Conciliation Courts Review* pp. 379-396; Fowler, J. (1995) 'Homosexual Parents - Implications for Custody Cases' Vol. 33 No. 3 *Family and Conciliation Courts Review* pp. 361-376. [36] (1995) 15 RFL (4th) 129. [37] For a discussion of how Courts in the United States have dealt with such cases see: Bates, F. (1992) 'Child Law and the Homosexual Partner - Recent Developments in the United States' Vol 1 *Australian Gay and Lesbian Law Journal* pp. 21-46 and Connolly, C. (1996) 'An Analysis of Judicial Opinions in Same-Sex Visitation and Adoption Cases' Vol. 14 *Behavioural Sciences and the Law* pp. 187- 203. [38] Section 1, *Canadian Charter of Rights and Freedoms*. [39] Dr. Margit Eichler, Professor and Chair of Sociology at the Ontario Institute for Studies in Education and the University of Toronto. [40] Dr. Rosemary Barnes, former Chief Psychologist at the Women's College Hospital, Toronto. [41] Dr Susan Bradley, Psychiatrist in Chief at the Hospital for Sick Children, Toronto. [42] *Re K* (1995) 15 RFL (4th) 129 at 141 [43] *Re K* (1995) 15 RFL (4th) 129 at 161 (emphasis in original). [44] *Brook and Brook* (1977) FLC 90-325. [45] See for example, *B and R and the Separate Representative* (1995) FLC 92-636; *McMillan v Jackson* (1995) FLC 92-610; *Bartlett and Bartlett* (1994) FLC 92-455. [46] Sullivan, *op. cit.* p.94.