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Abstract:
A relatively overlooked aspect of trends according relationship rights to same sex couples and families in Western nations in recent times is the extent to which they have drawn upon the sociological concept of 'functional family'. The kernel of functional family claims in law is that rights should flow from the way a relationship functions rather than being limited by its legal form. This article explores the influence and development of 'functional family' approaches in same-sex family recognition measures in both litigation and legislative reforms in recent decades across Canada, Australia, Britain and the USA.

functional family, same-sex relationships, law reform, lesbian parents, gay parents, civil unions, same-sex families

Abstract:
This article discusses the legal regulation of parenting in lesbian and gay families in Australia. This landscape of regulation includes laws that govern such families both before and after they are formed; that is, laws controlling access to potential family formation options in addition to laws that govern the status of parents and children in families that are formed through alternate means. There have been a number of important developments in these areas in recent years, including: challenges to laws that restrict access to fertility services; reforms to adoption laws in three jurisdictions; and deemed parental status for co-mothers in lesbian families formed through assisted reproduction in three jurisdictions. This article details how the new parental status reforms interrelate, including difficult questions regarding the recognition of this new parental status in other States and their interaction with federal law.

lesbian families, gay families, lesbian mothers, gay fathers, same-sex families, assisted reproductive technology, adoption, surrogacy

Abstract:
The meaning of "de facto relationship" has changed dramatically in Australian law in recent years. The most obvious changes are the raft of legislative reforms including same-sex couples as de facto couples in a wide array of state laws through 1999-2004. Additionally, an examination of recent case law reveals notable changes to the definition of "de facto relationship" through judicial interpretation, with a distinct trend towards a broader, more flexible interpretation of the de facto category, a less formalistic approach to the indicia of cohabitation, and a lesser focus on the traditional hallmarks that are thought to be "marriage-like" (such as public reputation, mingled finances and putative monogamy). These cases are important signposts as the Family Court will soon be grappling with questions around de facto relationships, including how to determine the existence and duration of a relationship.

de facto relationships, unmarried couples, common law marriage

Abstract:
This paper provides an overview of the international psychological and social science research on lesbian and gay parenting and family forms. It asks how this research should be used to inform social and legal policy on same-sex partnership and family recognition, with particular reference to Australian law.

Lesbian mothers, gay fathers, same-sex families, relationship recognition, homosexual parents

Abstract:
It is now widely accepted that lesbians, gay men and transgendered people may make refugee claims on the grounds of their membership of the 'particular social group' category of the Refugee Convention. Claims to protection made by lesbians and gay men based on sexual orientation extend the outsider nature of the refugee claim and its relationship to human rights. To claim 'core' human rights for lesbians and gay men is paradoxical given the marginality of sexual minorities in human rights jurisprudence to date. Sexual orientation has only very recently been acknowledged as a valid loci of human rights in international law and is typically still far from widely accepted as the basis for equality claims in many refugee receiving nations.

This paper does not propose that Constitutional equality guarantees are a panacea for discrimination on the basis of sexuality (or indeed on any other basis). Nor do I argue that there is necessarily a direct and demonstrable impact upon refugee decision-making in the countries under discussion. Rather, I suggest that a greater familiarity with lesbian and gay claims across a range of areas in tandem with a deeper and longer standing engagement with equality analysis has meant that Canadian decision-makers, unlike those in Australia and especially those in the UK, have been more ready to connect sexual orientation claims with human rights norms. This, in turn, has had a pervasive impact upon what decision-makers are prepared to construe as persecutory in sexuality based claims.

Sexual orientation, refugee law, refugee determinations, particular social group, lesbians, gay men, persecution, human rights

Abstract:
Prior to 1999, same-sex couples were recognised in only a handful of laws in Australia. There has been an enormous shift in Australian law since that time. Commencing with NSW in 1999, every state and territory except South Australia has undertaken legislative reform affording wide-ranging recognition to gay and lesbian partnerships within their jurisdiction. South Australia has had a Bill before Parliament since 2004 to the same effect, which is likely to be reintroduced in 2006. These reforms place same-sex partnerships on an equal footing with heterosexual de facto couples in literally hundreds of Acts concerning almost every area of law in Australia; although federal law is the notable exception to this trend.

To date very little has been written about these changes, and there is no source of information on how these many and varied reforms compare with one another, or indeed how they combine to form a matrix of recognition around Australia. This article will examine recognition of same-sex couples undertaken in recent years by outlining the sequence of reforms in each jurisdiction and their key features, including how the categories of relationship have been defined and the processes by which change has occurred. It will then examine those areas of law where inequality remains, particularly legislation at the federal level that continues to exclude same-sex couples. A second article, to follow, discusses parenting law and same-sex couples.

same sex couples, law reform, lesbians, gay men, family law, relationship recognition

Abstract:
This paper explores three narratives of violently transgressive lesbians in a prison setting. The stories are two English novels, Nights at the Circus by Angela Carter (1984), Affinity by Sarah Waters (1999) and an English TV series, titled in an apparently tongue in cheek moment, Bad Girls (1999-ongoing). The paper explores a number of disruptive and counter-hegemonic aspects that run through these stories including their portrayal of violence as a reasonable response to oppressive social conditions, a distinct problematising of heterosexuality and the metaphor of a prison panopticon to explore the constraints imposed on all women's lives. The main focus of the paper is on the role of lesbian desire. I argue that the representation of lesbian desire in all three tales is truly radical in that it acts to dissolve unequal power dyads, although I also come to question the extent to which it is possible, even in fiction, to sustain such rupture in the face of dominant cultural imperatives to 're-capture' and 'domesticate' homo-normative images.

Law and literature, popular culture, lesbian sexuality, representation, homonormative, criminality and representation

Abstract:
In refugee determinations on the basis of sexuality, Western decision-makers have to come to terms with a very other Other, a lesbian or gay man from a different culture. They must translate that experience of sexuality and culture not just into the international and national framework of refugee law, but also into something that is intelligible to themselves. This paper explores the role of emphathy and imagination in that process.

Refugee law, sexual orientation, lesbians, gay men, homosexuality, particular social group, empathy

Abstract:
This article explores commonalities between parental claims for lesbian co-mothers and other contexts in which intention is a key aspect to family formation for (mostly) heterosexual families: in particular, surrogacy and pre-birth disputes over embryos. Through a series of case studies drawn from recent reproductive controversies, the paper uses the lens of empathy to argue for social or non-genetic modes of parenthood connecting lesbian mothers and other 'reproductive outsiders'.

assisted reproductive technology, empathy, fathers' rights, lesbian mothers, non-genetic parenthood, surrogacy

Abstract:
"Gay marriage" is often used as a short-hand in popular discourse to stand for any and every form of same-sex relationship recognition. Yet even in some jurisdictions that have now opened marriage to same-sex couples, marriage was not first, and is not the primary, form of relationship recognition. Same-sex relationship rights are in a state of enormous flux with considerable variation apparent among the models, strategies, and substantive effects of recognition around the world.

This Article reflects on the approaches that Australia, and to a lesser extent New Zealand, have taken to relationship recognition, focusing in particular on the ways in which they have differed profoundly from what has happened in the United States. Specifically, the relationship recognition debate in Australia through the 1990s was characterized by the absence of any real interest in marriage and instead focused on developing more functional and adaptive models of relationship recognition, primarily through presumption-based models.

same-sex relationship recognition, lesbians, gay men, same-sex couples, gay marriage, same-sex marriage, de facto relationships, interdependency, family law

Abstract:
Britain's approach to refugee claims by lesbians and gay men has been notably hostile in comparison with other Western refugee receiving nations. For many years decision-makers in the UK refused to accept that those fleeing persecution on the basis of sexual orientation were even capable of being refugees under the terms of the Refugees Convention. Since accepting eligibility in 1999, UK decision-makers have repeatedly held that asylum seekers are under a duty to protect themselves by hiding their sexuality. They have also been extremely reluctant to hold that criminal sanctions for gay sex are themselves persecutory and have frequently failed to appreciate the relationship between violence against lesbians and gay men and the existence of criminal provisions.

This article suggests that there is a discernible national response in the Courts and Tribunals of Britain to sexual orientation based refugee claims. That response carries echoes of the 1956 Wolfenden Report, most notably its 'solution' to the 'problem' of homosexuality: privacy.

Refugee law, homosexuality, privacy, wolfenden committee, particular social group, criminal law

Abstract:
Our argument in this paper is that the evidentiary practices and procedures that have been developed by the Australian Refugee Review Tribunal are operating at a routinely low standard. Such practices contribute to decisions that are manifestly unfair and potentially wrong in law. Our conclusions are drawn from our detailed study of more than 300 refugee tribunal decisions made in Canada and Australia in response to asylum claims brought by lesbians and gay men.

refugee law, lesbians, gay men, homosexuals, evidence, human rights, administrative decision-making

Abstract:
This research paper outlines all Australian federal legislation that grants rights and entitlements to couples and families, and, in some instances, imposes obligations on them. In all, more than 60 statutes and regulations are examined. The research is current as at 1 September 2006.

The objective of the research is to gather, in one place, information about federal entitlements for same-sex couples. The paper seeks to inform debate and to prompt further comment about the issues discussed.

Some tentative suggestions for definitions of couples and parent-child relationships are outlined in the Appendices. They are included to generate comment about whether they are workable, useful, or desired alternatives to the current law.

This research was commissioned by the Human Rights and Equal Opportunity Commission as part of the National Inquiry into Discrimination against People in Same-Sex Relationship.

same sex relationships, lesbians, gay men, relationship rights, family law, de facto relationships, same-sex families, anti-discrimination, gay law reform

Abstract:
Australian empirical research on why people entered into guarantee transactions on behalf of spouse and family members. Discusses the role of financial institutions and legal professionals in such transactions and highlights considerations for future reforms.

relationship debt, guarantee transactions, third party debt, debt, unfair contracts

Abstract:
Credibility assessment has always been a major issue in refugee determinations and its importance increases in the context of widespread introduction of 'fast-track' processes and the manifest trans-national trend to truncate (or indeed remove) avenues for review. This article explores the practice of credibility assessment in lower level tribunals using a case study of over 1000 particular social group ground (PSG) decisions made on the basis of sexual orientation over the past 15 years.

Credibility played an increasingly major role in claim refusals, and negative credibility assessments were not always based on well-reasoned or defensible grounds. The article uses this specific case study in order to ground recommendations for structural and institutional change aimed at improving the credibility assessment process in refugee determinations more broadly.

refugee law, asylum, credibility, particular social group, fact finding, guidelines, sexual orientation

Abstract:
This article contends that a ‘functional family’ model falters in the context of lesbian and gay intra-family disputes. Functional family arguments have frequently been misused by birth-mothers in child-related disputes between separated lesbian parents. Moreover, functional family claims have been completely excluded from consideration in disputes between lesbian mothers and known sperm donors/biological fathers. I argue that the rise of fathers’ rights movements and increasing emphasis on biological family gives both discursive and legal authority to essentialized, gendered and symbolic status claims made by biological parents, valorizing distant biological fathers over mother-led family units, and separated biological mothers over non-biological mothers. Finding that the functional family approach cannot usefully resist the current ideological climate, this article concludes with exploration of an alternative: framing a form of parental status for lesbian co-parents based on intentionality.

Abstract:
This article contends that the 'functional family' model falters in the context of lesbian and gay intra-family disputes. Functional family arguments have frequently been misused in disputes between separated lesbian mothers who are contesting issues around children and in disputes between lesbian mothers and known sperm donors/biological fathers. I argue that the rise of fathers' rights movements and increasing emphasis on biological family gives both discursive and legal authority to essentialised, gendered and symbolic status claims made by biological parents, valorising distant biological fathers over mother-led family units, and separated biological mothers over non-biological mothers.

Finding that the functional family approach cannot usefully resist the current ideological climate, the article concludes with an exploration of an alternative: framing a form of status claim for lesbian co-parents based on intentionality.

functional family, lesbian mothers, same-sex parents, biological family, fathers' rights, non-biological parents

Abstract:
Explores and critiques same-sex relationship recognition in New South Wales, the first Australian state to grant comprehensive recognition to gay and lesbian relationships. Discusses the parliamentary process.

Same-sex relationships, lesbians, gay men, homosexual law reform, relationship recognition

Abstract:
This article draws upon psychological and sociological literature to explore the issues that arise in eliciting and presenting a refugee narrative when the claim is based upon sexual orientation. Rigid notions of homosexual identity may consciously or subconsciously shape decision-makers' approaches in this field. First, we identify psycho-social issues of particular significance to lesbian, gay and bisexual claimants which may act as barriers to eliciting their narrative of self-identity, including: a reluctance to reveal group membership as the basis of a claim, the experience of passing or concealment strategies, the impact of shame and depression on memory, common experience of sexual assault, and sexualisation of the identity narrative in the legal process. Secondly, we explore factors which inhibit the reception of such narratives in the legal process. In particular we explore the psychological 'stage model' of sexual identity development and examine the pervasive impact this model has had upon decision-makers' 'pre-understanding' of sexual identity development as a uniform and linear trajectory.

refugee narratives, sexual orientation, lesbian, gay, bisexual refugees, sexual identity, particular social group

Abstract:
This community law reform project reports on law reform options for the recognition of gay and lesbian families. Although discussion centres on the law of the Australian state of New South Wales, the issues raised and models discussed for the recognition of non-biological parents are of wider use and interest.

Lesbian mothers, gay fathers, homsexual families, law reform, legal recognition of same-sex families

Abstract:
A reivew of the process of same-sex relationship recognition in the Australian state of New South Wales, the first such jurisdiction in Australia to enact comprehensive reforms. The article compares the Australian experience with that of other jurisdictions such as Canada.

Same-sex relationships, law reform, lesbians, gay men, de facto relationships

Abstract:
In Appellants S395/2002 and S396/2002 v. Minister for Immigration and Multicultural Affairs, the High Court of Australia was the first ultimate appellate court to consider a claim to refugee status based upon sexual orientation. By majority the court rejected the notion prevalent in earlier cases that decision-makers could 'expect' refugee applicants to 'co-operate in their own protection' by concealing their sexuality. This paper explores the impact of S395 and S396 on the refugee jurisprudence of Australia and the United Kingdom five years on. Refugee decision-makers in both countries have been slow to fully appreciate the fact that sexual minorities are secretive about their sexuality and relationships as a result of oppressive social forces rather than by 'choice'. In addition, in Australia there has been a clear shift away from discretion towards disbelief as the major area of contest, with a significant increase in decisions where the applicant's claim to actually being gay, lesbian or bisexual is outright rejected. In an alarming number of cases tribunal members used highly stereotyped and westernised notions of 'gayness' as a template against which the applicants were judged.

refugee law, asylum, particular social group, sexual orientation, sexuality, gay, lesbian, credibility, discretion

Abstract:
In October 2008 a suite of major reforms concerning family relationships passed federal parliament. Broadly speaking these reforms include same-sex couples within the category of ‘de facto relationship’ in all federal laws (previously limited to unmarried heterosexual couples), extend the definition of ‘parent’ and ‘child’ in much federal law to include lesbian parents who have a child through assisted reproductive means and, in more limited circumstances, to include parents who have children born through surrogacy arrangements. The reforms also bring de facto couples, both heterosexual and same-sex, from the territories and referring states within the federal family law property division regime. This article is divided into two main parts, examining the reforms relating to de facto partners first and then exploring those concerning parental status. The major provisions of the new laws are examined and a selection of cases critiqued to assess whether the aims of the reforms are being, or are likely to be, met.

Abstract:
Credibility assessment has always been a major issue in refugee determinations and its importance increases in the context of widespread introduction of ‘fast-track’ processes and the manifest trans-national trend to truncate (or indeed remove) avenues for review. This article explores the practice of credibility assessment in lower level tribunals using a case study of over 1000 particular social group (PSG) ground decisions made on the basis of sexual orientation over the past fifteen years. Credibility played an increasingly major role in claim refusals, and negative credibility assessments were not always based on well-reasoned or defensible grounds. The article uses this specific case study in order to found recommendations for structural and institutional change aimed at improving more generally the credibility assessment process in refugee determinations.