: Current Trends in the Regulation of Same-Sex Relationships

Current Trends in the Regulation of Same-Sex Relationships

Wayne Morgan

Law in Content Special Edition 28(1)Paula Gerber and Adiva Sifris (eds); Law in Context Special Issue 28(1); Federation Press, 2011; 122 pages; $66.00 (paperback)

This special issue of Federation Press’s Law in Context series includes seven articles, all relatively brief, by Australian authors (most from Victoria) focusing on issues of same-sex parenting and same-sex marriage. No attention at all is paid to the regulation of same-sex families under de facto law or under the Australian civil union schemes that continue to proliferate, and I thus find the title of the special issue somewhat misleading. Given that it is entitled ’current trends’, I would have thought some analysis of civil union schemes in particular was warranted. Leaving this aside, the special issue is a useful collection of current work on same-sex parenting and same-sex marriage.

The editors’ introduction, entitled ’The Wind of Change is Blowing’, sets the scene for the collection by emphasising that ‘change’ is the dominant theme and by asserting that never before in Australia have laws regulating gay men and lesbians been changing at such a pace. My only quibble with this introduction is that the editors adopt (as many commentators do) Kees Waaldijk’s five stage ‘standard sequence’ to achieving full equality for lesbians and gay men to frame their introduction and the articles in the volume1. In my opinion, Waaldijk’s ‘standard sequence’ is at odds with the historical record in Australia, where reform has not neatly progressed from decriminalisation to anti-discrimination protection to relationship recognition and parenting reforms. Waaldijk’s ‘standard sequence’ also assumes a lineal progression in law reform, which over-simplifies how reform has been achieved in Australia. Nevertheless, this is a small point and largely irrelevant to the substantive articles that follow.

The first substantive piece in the volume, by Adiva Sifris, looks at lesbian parenting. Focusing on the federal reforms of 2008 and the Victorian reforms to laws concerning lesbian parenting of the same year, Sifris states in her introduction that she wishes to use these case studies to investigate what drives ‘change’: law reform, demography, societal attitudes or a combination of these. Sifris thus adopts the concept of ‘demosprudence’ to frame her analysis. This concept, borrowed from recent US scholarship, is defined as ‘a methodology … that systematically views lawmaking from the perspective of popular mobilizations’ (p 14). Having adopted this framework, I then expected that this article would attempt to analyse the various social forces that shaped the changes in Australian law. However, it did not. In reality, this article focuses on two cases McBain and Re Patrick, and the influence that these two cases had on public opinion and the reforms in question. Sifris’ analysis of McBain is uncontroversial and largely material already published. I do, however, disagree with Sifris’ analysis of Re Patrick. Sifris asserts that the death of the child at the hands of its mother after Re Patrick ‘ignited the flame for a culture shift’ and that, somehow, this had a major influence on the 2008 federal reforms (p 20). Sifris presents little evidence for either of these propositions. Indeed, being someone intimately involved in the 2008 reforms, I can remember little discussion of the aftermath of Re Patrick. Instead, it was the substantial lobbying of lesbian and gay groups that largely shaped the reforms. This is given no attention by Sifris.

Next follows an article by Paula Gerber on the concept of ‘the best interests of the child’ when applied to same-sex families. Gerber notes the continuing assertions that same-sex families can never be in the best interests of children. Using the concept of ‘best interests’ as articulated in Article 3 of the Convention on the Rights of the Child (‘CROC’), Gerber argues against such assertions. Whilst noting the ‘illusive’ content of this concept, Gerber argues that it must be informed by reference to other provisions of the CROC, such as non-discrimination, rights to family relations and the autonomy rights of the child. Gerber then uses the first two of these (non-discrimination and rights to family relations) to argue that ‘the best interests of the child’ entail full legal recognition of the child’s family.

In what I found to be the most fascinating piece in the collection, Andrew Gorman-Murray and Chris Brennan-Horley use 2006 Census data to map same-sex families in Australia. Lawyers normally pay little attention to geography. Yet these authors argue convincingly that ‘subversive’ maps can visually challenge dominant views and advance minority rights. They provide a fascinating picture (complete with tables and maps) of the distribution of same-sex families around Australia, both in the cities and regionally and on the basis of gender and child-rearing.

In the next article, Damien Riggs shifts the focus of the collection to foster carers. Based on empirical data drawn from surveys and interviews with foster carers in four Australian states (the three eastern mainland states and South Australia), Riggs focuses on the experiences of same-sex foster carers in seeking support from agencies and in negotiating what Riggs calls ‘pragmatic imbalances’: the disparity between the rights of lesbian and gay foster carers and the rights of the children in their care. The article forcefully illustrates the legal problems, as well as the experiences of foster carers and makes useful suggestions for reform based on the empirical findings.

Charlotte Frew then turns attention to the issue of same-sex marriage. Drawing heavily on submissions made to the Senate’s 2009 inquiry into the Marriage Equality Amendment Bill 2009 (Cth), Frew examines basic notions of what ‘marriage’ means and how various participants in the debate about marriage envisage this social form. Not surprisingly, Frew records how most opponents to same-sex marriage draw on ‘natural law’ arguments and position marriage as a largely ‘static’ concept ordained by God. Also not surprisingly, Frew notes that most proponents of reform characterise marriage as a social construct that changes over time. Utilising Australian historical material, Frew examines these themes and traces how the concept of marriage has evolved in Australia and the forces that have shaped that evolution. Frew concludes that Australian marriage laws have historically been shaped by concepts of liberty, pragmatism and civil (as opposed to religious) concepts and that this makes same-sex marriage recognition inevitable.

The final two articles put the Australian material so far covered into an international context. Jamie Gardiner reviews the first decade of the current century and records the changes that have occurred overseas with respect to same-sex marriage. Largely descriptive, the conclusion to this article does, however, attempt to discern a number of ‘trends’. These are that same-sex marriage often evolves from other forms of relationship recognition (eg civil unions); that federal jurisdictions produce sporadic reform before uniform reform; that marriage follows, once discrimination on the basis of sexuality is proscribed (particularly in constitutions) and that the role of lesbian and gay lobby groups is crucial. Jacqueline Heaton concludes the volume by focusing on same-sex marriage in South Africa, the process that led to reform and current debates within that country as to whether true marriage equality has been achieved. Largely descriptive, this piece is useful in recording the ongoing debates in South Africa and the areas in which reform remains necessary.

As noted above, the editors’ introduction designates ‘change’ as the major theme of this special issue. The collection usefully records and analyses some of the substantial changes taking place with respect to same-sex family law reform, both in Australia and overseas.

WAYNE MORGAN is a Senior Lecturer in Law at the ANU College of Law.


1. Kees Waaldijk, ‘Standard Sequences in the Legal Recognition of Homosexuality’ (2004) 4 Australian Gay and Lesbian Law Journal 50.

(2012) 37(2) AltLJ 142
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