Lesbians, gay men and bisexuals
Approximately 773,000 or 4% of the adult population Australia-wide identify as gay, lesbian or other. The purpose of this chapter is to:
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highlight for judicial officers some common misconceptions made about lesbians, gay men and bisexuals, provide some explanations and terminology and discuss how they may impact access to justice, and
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provide guidance about how judicial officers may take account of this information in court — from the start to the conclusion of court proceedings. This guidance is not intended to be prescriptive.
8.1 Some statistics[1]
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Proportion of the population — There are few reliable statistics on the number of lesbians, gay men and/or bisexuals resident in NSW. In 2020, the Australian Bureau of Statistics conducted its General Social Survey and people were asked about their sexual orientation in the survey. Approximately 773,000 or 4% of the adult population Australia-wide identify as gay, lesbian or other. Identification as gay, lesbian or “other” varied by age with the high rates in younger age groups.[2]
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Views of others — There is scant credible evidence on how society views lesbians, gay men and bisexuals. The Human Rights Commission states that “LGBTIQ people in Australia still experience discrimination, harassment and hostility in many parts of everyday life; in public, at work and study, accessing health and other services”.[3] However, attitudes appear to be changing. In November 2017, the Federal Government held the Australian Marriage Law Postal Survey which canvassed attitudes of voters towards amending the Marriage Act 1961 (Cth) by asking the question, “Should the law be changed to allow same-sex couples to marry?”. A “yes” or “no” answer was required. The survey returned a 61.6% Yes vote. This result has been heralded as a major breakthrough for LGBTIQ rights in Australia. On 9 December 2017, the main amendments to the Marriage Act 1961 (Cth) by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced to legalise same-sex marriage in Australia.[4]
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Discrimination — Despite the existence of anti-discrimination protection under NSW anti-discrimination law since 1982,[5] there is little doubt that lesbians, gay men and bisexuals are discriminated against more than heterosexuals. In 2013, the federal Parliament amended the Sex Discrimination Act 1984 (Cth) by inserting s 5A Discrimination on the ground of sexual orientation.[6]
This provision makes it unlawful to discriminate against a person on the basis of sexual orientation under federal law. In addition, same-sex couples are also protected from discrimination under the amended definition of “marital or relationship status” which incorporates the definition from s 2F of the Acts Interpretation Act 1901 (Cth).
These amendments[7] seek to bridge the gap in coverage between the States and territories and the Commonwealth, and introduce more inclusive definitions with the addition of the new ground of intersex status.[8]
Some lesbians and gay men feel that it is easier to be bisexual than to be exclusively lesbian or gay, in that it is easier for bisexuals to “pass” as heterosexual and avoid being discriminated against in the workplace. For example, nearly 60% report being discriminated against at work because of their sexuality.[9] Discrimination has a negative effect on the health and productivity of bisexuals and statistics show that bisexuals are at increased of mental health problems, including depression, anxiety disorders, self-harm and suicide, due to discrimination and abuse.[10] These health outcomes are directly related to experiences of stigma, prejudice, discrimination and abuse on the basis of being LGBTI.[11] They are two and a half times more likely to be diagnosed and treated for mental disorder or anxiety in the past 12 months and have higher levels of psychological distress. [12]
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Verbal abuse, intimidation and violence — Lesbians, gay men, and bisexuals experience much greater levels of verbal abuse and violence than heterosexuals. In a 2021 Report,[13] the NSW Legislative Council’s Standing Committee on Social Issues noted that there were 79 incidents of hate crime reported over the past 12 months by LGBTIQ people. This accounts for 16% of all recorded hate crime involvements, events and information received by police. There is also significant underreporting of such incidents. The Committee also noted a trend of increased violence and harassment experienced by LGBTIQ people, and poorer health outcomes experienced as a result.[14]
Gay bashings have at times been a form of sport, largely among young men in Sydney, and the murders of about 88 gay and transgender people (of which 23 remain unsolved) in Sydney’s eastern suburbs between 1970 and 2010 are the subject of a judicial inquiry announced by the NSW Government in late 2021[15] following a recommendation of the NSW Legislative Council’s Standing Committee on Social Issues Final Report into Gay and Transgender Hate Crimes.[16]
Many lesbians, gay men and bisexuals remain reluctant to report verbal abuse or violence for a variety of reasons, including fear of a homophobic response, fear of “outing” themselves, fear of a distressing investigation process, a belief that little can be done, and concerns about privacy and security.[17]
In the past, the use of the so-called “homosexual advance defence” and “homosexual panic defence”[18] as a mitigating factor in relation to violent behaviour towards someone who is or was perceived to be homosexual was used as a defence of provocations, but has since been largely removed as a result of legal reform. In NSW, there is a partial defence of extreme provocation under s 23 Crimes Act 1900, commenced 13 June 2014. However, s 23(3) provides that conduct of the deceased (ie, the person killed as a result of the alleged provocation) does not constitute extreme provocation if: (a) the conduct was only a non-violent sexual advance to the accused. See Notes — extreme provocation at [6-444] Criminal Trial Courts Bench Book.[19]
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Family support — Some have lost touch with their families and/or previous friends after “coming out” as lesbian or gay. Some young lesbians and gay men leave school (see under “education” below) and home because of their feelings of lack of support. Some of these young people end up living on the streets, and/or as prostitutes, and/or abusing alcohol or drugs.
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Suicide attempts and ideation and self harm of young people — National statistics show that 16% of LGBTIQ young people reported that they had attempted suicide with those who experience abuse and harassment even more likely to make a suicide attempt. Equally, 15.4% of LGBTIQ young people reported that they had current thoughts of suicide in the last 2 weeks. 33% reported having self-harmed and 41% had thoughts of harming themselves.[20]
15.7% of lesbian, gay and bisexuals report current suicidal ideation (thoughts)[21] with the average age of a first suicide attempt being 16 years.[22]
Research and real life experiences have found that LGBTIQ+ people have an increased risk of depression and anxiety, substance abuse, self-harming and suicidal thoughts.[23] LGBT people are between 3.5 and 14 times more likely to try and die by suicide as their heterosexual peers.[24] Sixteen per cent of LGBTI Australians aged between 16 and 27 have attempted suicide and 33% have self-harmed.[25]
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“Coming out” as lesbian or gay — Some people take much longer to “come out” as lesbian or gay than others. Some never fully “come out”. Some have had heterosexual relationships before coming out. Others have never had any heterosexual sexual experience. There is no right or wrong way to come out, it is important to do it in a way that you choose and in a way that you feel comfortable.
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Self-censorship — Because of the discrimination that lesbians, gay men and bisexuals experience, many lesbians and gay men are not completely open or “out” about their sexuality. They adopt a practice of self-censorship in at least some part of their everyday life — for example, they may limit discussion of weekend activities and change the pronoun when referring to a partner or lover, or never hold hands in public.[26] This is likely to be even more the case in a formal setting such as a court. Some lesbians and gay men choose not to live with their (sometimes long-term) partner through fear of public exposure, and some live together but do not identify as living in a same sex relationship.[27] However, anecdotal evidence suggests that this is much less the case than it used to be. And note that some choose not to live together simply because they do not want to live together.
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Education — Those who started to “come out” at school, or who were recognised by other students as different, may not have been able to reach their full educational potential.[28]
There are connections between early school leaving, poor educational attainment and homophobic bullying.[29]
Around 10% of young Australians experience same-sex attraction, most realising this around puberty. They may be more likely to experience bullying at school and/or greater difficulty connecting with others. In an Australian study, 61% of young non-heterosexual people reported experiencing verbal abuse and 18% reported physical abuse.[30]
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Income level People in same-sex couple relationships were more likely than those in opposite sex relationships to have higher personal incomes. (see Section 7)
In 40% of male same-sex couples and 35% of female same-sex couples both partners earned $1,000 or more a week; more than twice the proportion of opposite-sex couples (17%).
Consequently, same-sex couples were more likely to fall into the higher household income brackets.[31]
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Children — Lesbians and gay men are less likely to be parents or live with children than heterosexuals. However, an increasing number of gay male and lesbian individuals and couples live with children — these children may be from previous heterosexual relationships, foster children, children born through surrogacy arrangements, co-parenting arrangements, or children born using artificial or self-insemination.[32] The 2011 Census counted 6,300 children living in same-sex couple families, up from 3,400 in 2001. Children in these same-sex couple families account for only one in a thousand of all children in couple families (0.1%).[33]
The vast majority of these children (86%) were in female same-sex couple families.[34]
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Regional, rural and remote communities — the issues faced by LGBTIQ people in rural and regional communities are often heightened. Communities in rural and regional areas often do not have access to a “community” — “an identified, visible group of LGBTIQ people coming together”. “So those issues around homophobia and visibility can be more acute in regional and rural areas. So if you are a victim of violence or harassment then those issues about reporting just become magnified for those communities”.[35]
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In all other respects — Lesbians, gay men and bisexuals are as diverse as heterosexuals in relation to their level of education, employment status, religious affiliation, ethnic or migrant background, whether or not they have a partner or indulge in sexual activity at all, levels of domestic violence, mental and physical heath, criminality etc. Their sexuality is simply one (albeit important) facet of their make up.
8.2 Some information
8.2.1 Common misconceptions
There are many false assumptions made about lesbians, gay men and bisexuals. Some of the most common are:
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You can tell if someone is lesbian or gay (and possibly if they are bisexual) because they look and/or behave more like people of the opposite sex, or in a “gay” way — Assumptions should not be made about a person’s sexuality based on their actions, appearance or behaviour. People who are lesbian, gay, bisexual and heterosexual behave in different ways, some of which don’t fit within the stereotypical idea of how a person of that sexuality should act.
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In lesbian and gay male couples, one is more masculine and takes the traditional male role and the other is more feminine and takes the traditional female role — The form of lesbian and gay male couple relationships is as varied as the form of heterosexual couple relationships. Some couples have loving, mutually supportive and life-long relationships. Other relationships can be short-term, destructive, and/or domestically violent.[36]
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Gay men are more likely to sexually abuse children or youths — Children and young people who are sexually abused are most commonly abused by an adult of the opposite sex. There is no research evidence that homosexual men are any more likely to sexually abuse boys aged under 18 than heterosexual men are likely to sexually abuse girls aged under 18.[37] In addition, men who sexually abuse boys aged under 18 “are not necessarily homosexual. They are sexually attracted to children”.[38]
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Homosexuality breeds homosexuality/lesbianism and gay men make bad parents — There is absolutely no evidence that gay or lesbian parents produce greater numbers of gay/lesbian children than heterosexual parents. Most gay men, lesbians and bisexuals have heterosexual parents. There is also no discernible difference between the children who live with one or two lesbian or gay male parent(s) and the children who live with one or two heterosexual parent(s) in relation to such things as the children’s level of happiness, social adjustment, satisfaction with life and/or moral or cognitive development. In addition, lesbian mothers are generally “more concerned than heterosexual women that their children should have contact with men and positive male role models”.[39]
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Lesbians, gay men and bisexuals could choose to be heterosexual — While it is true that a few make an active decision not to have heterosexual relationships, most feel that their lesbianism, homosexuality or bisexuality was there from birth, and is not something they can change. There is some research evidence that sexuality may be biologically determined.[40]
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People who call themselves bisexual are really gay or lesbian but do not want or dare to describe themselves as such, or they are really heterosexual but just like the idea of describing themselves as capable of having sexual relationships with anyone — Bisexuals “live their lives in a diverse range of ways, including remaining single, marrying, and having a same sex partner. They may engage in sexual activity with partners of the same sex, the opposite sex or partners of both sexes”[41] — at the same time or sequentially. They are therefore too diverse to categorise in either of these ways.
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Same sex relationships do not have the same significance as heterosexual relationships — Same sex relationships have the same significance to each partner (and any children living with the couple) as heterosexual relationships (and families) do to heterosexuals. To accord them less significance because they are same sex, do not fit the “norm”, or do not match the way heterosexuals arrange their everyday life is unfair and discriminatory. Note also that same sex parents tend to share all parenting activities and parenting decisions in much the same way as heterosexual couples (although, as noted in 8.1 above, they tend to share the actual work more equitably). This happens despite the fact that only one parent is the biological parent — see 8.3.2.
8.2.2 Explanations and terminology
8.2.2.1 Homosexuality and homosexual
“Homosexuality” is used to describe both lesbian and gay male sexuality — that is, as a term for people who are sexually and emotionally attracted to people of the same sex.
“Homosexual” is used as either an adjective or a noun to refer to both a lesbian and a gay man.
However, many lesbians regard both these words as male and exclusive of women. Some gay men prefer to use “gay man”, “gay male”, or “gay” — see 8.2.2.2.
“LGBTIQ” refers collectively to people who are lesbian, gay, bisexual, transgender, intersex and/or queer.
8.2.2.2 Gay
“Gay” is a term mostly used to describe men whose primary emotional and sexual attraction is towards other men. However, it can be used to describe both men and women who are attracted towards people of the same sex.[42] While technically an adjective, it is often used as a noun as well — particularly when used in the plural — “gays”.
Again, some lesbians prefer the term lesbian instead.
The term “gay man” is the closest match for the term “lesbian”.
8.2.2.3 Lesbianism and lesbian
A lesbian is a woman whose primary emotional and sexual attraction is towards another woman.[43] “Lesbianism” (as opposed to “homosexuality”) and “lesbian” as opposed to “homosexual” or “gay”, are preferred terms.
8.2.2.4 Coming out, out, outed and closeted
“Coming out” is used to describe the process of being able to openly describe oneself as lesbian or gay and then live openly, or relatively openly, as lesbian or gay. All forms of the verb are used depending on the tense required.
Someone who has “come out” may be described as “out”.
Lesbians and gay men who have “come out” are sometimes said to have come “out of the closet”.
Those who are not open about their sexuality are described as “in the closet” or “closeted”.
People who are closeted are sometimes “outed” (that is, publicly named as lesbian or gay) — usually by others who wish to embarrass them, shame them or for political purposes.
8.2.2.5 Same sex relationships
A lesbian or gay male relationship.
8.2.2.6 Homophobia and lesbophobia
“Homophobia” (literally fear of homosexuals/homosexuality) describes the inability of others to tolerate lesbians and gays and accept that they should be treated fairly and their different needs allowed for. It embraces discriminatory views and actions.
“Lesbophobia” is preferred by some lesbians when describing homophobia towards lesbians.
8.2.2.7 Queer and queer-identifying
Some (particularly younger) gay men, lesbians and bisexuals use “queer”, and/or “queer-identifying”, as both nouns and adjectives, to describe anyone who is not completely heterosexual.
8.2.2.8 Bisexuality and bisexual
“Bisexuality” describes the sexuality of people who are sexually and emotionally attracted to members of both sexes.
“Bisexual” is used (as a noun and adjectivally) to describe people who are sexually and emotionally attracted to members of both sexes.
8.2.2.9 Straight and bent
Lesbians, gay men and bisexuals often use “straight” to describe heterosexuals, and its opposite “bent” to describe themselves. It is generally not appropriate to use “bent” unless you are lesbian, gay, or bisexual, or have been given specific permission to use the particular term.
8.2.2.10 Other terms
Other terms used to describe lesbians and gay men, such as “dyke”, “lemon”, “leso”, “poof”, “poofter”, “fag”, “faggot”, “camp”, “fairy”, “butch”, “queen” and “femme” are generally not appropriate to use unless you are lesbian or gay, or have been given specific permission to use the particular term. Indeed, many are considered derogatory when used outside gay male and/or lesbian communities.
8.3 Legal recognition
8.3.1 Age of consent
The age of consent in NSW is now the same for everyone, whether heterosexual, bisexual, lesbian or gay — that is, 16 years.[44]
8.3.2 Same sex relationships
The definition of “marriage” in the Marriage Act 1961 (Cth) has until recently excluded same sex unions. After the success of the “Yes” campaign in the Australian Marriage Postal Survey, on 9 December 2017, the main amendments to the Marriage Act 1961 (Cth) by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced to legalise same-sex marriage:[45] see 8.1 for further discussion of the Australian Marriage Postal Survey.
Previously, s 88EA of the Marriage Act did not recognise a union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman. Section 88EA was repealed by the Marriage Amendment (Definition and Religious Freedoms) Act 2017.[46]
Same sex couples who live together as de facto couple enjoy many of the same rights as heterosexual de facto couples. However:
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Those who live apart generally do not have the same rights, despite the fact that it is more common for same sex couples to choose not to live together — sometimes for fear of being recognised as lesbian or gay. For example, the Health Insurance Act 1973 (Cth) requires that for a person to be recognised as a spouse, they must not live, on a permanent basis, separately and apart from that person.
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To gain access to some of these rights, same sex couples must provide significant proof that they are in a de facto relationship. They may need to provide evidence of living and child care arrangements, sexual relationship, finances, ownership of property, commitment to a shared life and the reputation and public aspects of the relationship.[47]
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Same sex couples who are parenting can both be recognised as legal parents in some circumstances. For example, a lesbian couple who plan and conceive a child together can both be recognised as parents on a child’s birth certificate in NSW.[48] The Family Law Act (Cth) recognises same sex couples as parents.[49] In some cases, the courts have held that contrary to the intentions of the same sex couple or express agreements with another, a person who has donated sperm is a parent in the circumstances of the case. In Masson v Parsons (2019) 266 CLR 554, where the appellant provided semen to the respondent (who was in a same sex relationship), so that she could conceive a child through artificial insemination, the High Court determined that the appellant was a parent of his daughter, and that s 60H of the Family Law Act, which provides rules in relation to parentage of children born via artificial conception procedures, is not exhaustive of the persons who may qualify as a parent of a child born as a result of an artificial conception procedure. The appellant had provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent; that he would be registered on her birth certificate as her parent; and that he would, as her parent, support and care for her, as since her birth, he has done. To characterise the appellant as a “sperm donor” was in effect to ignore all but one of the facts and circumstances which, in this case, have been held to be determinative: at [54]. See also ND v BM [2003] FamCA 469 where a lesbian couple had an express agreement with a man that he was to be a sperm donor with no legal rights or liabilities. The Family Court held that the fact that the pregnancy was achieved through sex rather than assisted conception meant that the legal presumption of parental status applied, regardless of the intentions of all concerned to the contrary.
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To access IVF treatment or reproductive technologies through Medicare, a woman must be diagnosed as “medically infertile”. Medicare rebates for these types of treatments are unavailable to a woman who has no pre-existing fertility condition. This means women in same sex relationships who have no infertility condition would be unable to access benefits to conceive a child. Medicare rebates are also not available for surrogacy arrangements.
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Same sex couples may also need to prove they are in a de facto relationship to be able to make care and treatment decisions on behalf of a partner; to be listed as a spouse on a death certificate and be involved in funeral planning and to be provided for under an estate when the partner dies without leaving a will.[50]
8.4 The possible impact of a person’s lesbianism, homosexuality or bisexuality in court
The discrimination and abuse that many lesbians, gay men and bisexuals have experienced (often many times) may make some of them more likely to name any perceived problem, or any perceived difference in treatment as being a form of sexuality discrimination, even when it is not. However, if you follow the guidance provided in 8.5, below, this should be less likely to occur.
In addition, unless appropriate account is taken of any needs specific to their sexuality, lesbians, gay men and bisexuals are likely to:
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Feel uncomfortable, resentful or offended by what occurs in court.
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Feel that an injustice has occurred.
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In some cases be treated unfairly and/or unjustly.
Section 8.5, following, provides additional information and practical guidance about ways of treating lesbians, gay men and bisexuals, so as to reduce the likelihood of these problems occurring.
8.5 Practical considerations
8.5.1 Appearance and behaviour
8.5.2 Language and terminology
8.5.3 The impact of a person’s lesbianism, homosexuality or bisexuality on any behaviour relevant to the matter(s) before the court
8.5.4 Directions to the jury — points to consider
As indicated at various points in 8.5, it is important that you ensure that the jury does not allow any ignorance of lesbianism, homosexuality or bisexuality, or stereotyped or false assumptions about lesbians, gay men or bisexuals to unfairly influence their judgment.
8.5.5 Sentencing, other decisions and judgment or decision writing — points to consider
8.6 Further information or help
Organisations that can provide information or expertise about lesbianism, homosexuality or bisexuality or related issues, are:
NSW Gay & Lesbian Rights Lobby
www.glrl.org.au
Convenors
Email:convenors@glrl.org.au
Inner City Legal Centre
(Includes Gay and Lesbian Advice Service)
Street Address:
Basement, Kings Cross Library
50-52 Darlinghurst Rd
Kings Cross NSW 2011
Postal Address:
PO Box 25
Potts Point NSW 1335
Phone: 02 9332 1966
Fax: 02 9360 5941
Web: www.iclc.org.au
Equality Australia:
Email: info@equalityaustralia.org.au
Web: https://equalityaustralia.org.au/
8.7 Further reading
Australian Bureau of Statistics, Year Book Australia, 2012, ABS Cat No 1301.0, 2012, Canberra.
Australian Bureau of Statistics, Couples in Australia, 4102.0 — Australian Social Trends, March 2014, at www.abs.gov.au/socialtrends, accessed 30 October 2017.
Anti-Discrimination Board of NSW, Annual Reports, at www.antidiscrimination.justice.nsw.gov.au/about-us/annual-reports, accessed 23 November 2017.
Australian Centre for Lesbian and Gay Research, The pink ceiling is too low — Workplace experiences of lesbians, gay men and transgendered people, 1999.
Australian Medical Association, AMA Position Statement: Sexual Diversity and Gender Identity, 2002, citing AF Jorm, AE Korten et al “Sexual Orientation and Mental health: Results from a community survey of young and middle-aged adults” (2002) 180 British Journal of Psychiatry at 423–427.
M Flood and C Hamilton, Mapping homophobia in Australia, Australia Institute Webpaper, 2005, at www.glhv.org.au/files/aust_inst_homophobia_paper.pdf, accessed 23 November 2017.
Twenty10 incorporating Gay and Lesbian Counselling Service’s website, at www.twenty10.org.au, accessed 27 October 2017.
Gay and Lesbian Rights Lobby’s website, at http://glrl.org.au, accessed 23 November 2017.
R Graycar and J Morgan, The Hidden Gender of Law, 2nd ed, 2002, The Federation Press, Leichhardt, NSW.
Inner City Legal Centre, “Talking turkey: a legal guide for lesbian, gay, bisexual, transgender, intersex and queer parents and donors in New South Wales”, 2015, at www.iclc.org.au/talking-turkey/, accessed 23 November 2017.
Judicial Studies Board, Equal Treatment Bench Book, 3rd edn, 2013, London, Pt 12, “Sexual orientation”, at https://www.judiciary.gov.uk/wp-content/uploads/2013/11/12-sexual-orientation.pdf, accessed 23 November 2017.
J Millbank, Meet the parents: A review of the research on lesbian and gay families, Gay and Lesbian Rights Lobby, 2002, at www.gaylawnet.com/ezine/parenting/MeettheParents.pdf, accessed 23 November 2017.
NSW Attorney General’s Department, You shouldn’t have to hide to be safe — A report on homophobic hostilities and violence against gay men and lesbians in NSW, 2003.
NSW Attorney General’s Department, Understanding your Legal Rights: A Guide for Lesbians and Gay Men in NSW, 2009, at www.illawarraqinfo.com/Understand_Your_Legal_Rights_09.pdf, accessed 23 November 2017.
MR Stevenson, “Public Policy, homosexuality and the sexual coercion of children” (2000) 12(4) Journal of Psychology & Human Sexuality 1–19.
CJ Simone, “Kill(er) man was a battered wife: The application of battered woman syndrome to homosexual defendants: The Queen v McEwen” (1997) 19 Sydney Law Review 230 at 235.
Supreme Court of Queensland, Equal Treatment Benchbook, 2016, Supreme Court of Queensland Library, Brisbane, Chapter 15, “Gender Identity and Sexual Orientation”, at www.courts.qld.gov.au/__data/assets/pdf_file/0004/94054/s-etbb.pdf, accessed 23 November 2017.
ANROWS, “Crossing the line: lived experience of sexual violence among trans women of colour from culturally and linguistically diverse backgrounds in Australia: key findings and future directions, Research to policy and practice, Issue 14, June 2020.
8.8 Your comments
The Judicial Commission of NSW welcomes your feedback on how we could improve the Equality before the Law Bench Book.
We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.
In addition, you may discover errors, or wish to add further references to legislation, case law, specific Sections of other Bench Books, discussion or research material.
Section 14 contains information about how to send us your feedback.
[1] Unless otherwise indicated, these statistics are drawn from information on the Gay and Lesbian Rights Lobby’s website, at www.glrl.org.au, accessed 26 September 2017, and from information on the Gay and Lesbian Counseling Service’s website, at www.twenty10.org.au/, accessed 26 September 2017.
[2] Australian Bureau of Statistics, General Social Survey, 2020 (ABS Cat No 4159.0), Canberra at https://www.abs.gov.au/statistics/people/people-and-communities/general-social-survey-summary-results-australia/latest-release, accessed 30 November 2021.
[3] Australian Human Rights Commission, “Face the facts: lesbian, gay, bisexual, trans and intersex people”, 2014 at https://humanrights.gov.au/sites/default/files/FTFLGBTI.pdf, accessed 30 November 2021.
[4] Schedule 1, Pts 1 and 2 of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced on 9 December 2017.
[5] Anti-Discrimination Act 1977 (NSW), Pt 4C, assented 12 December 1982. From 1 August 2013 it became unlawful to discriminate against a person on the basis of sexual orientation, gender identity and intersex status under the Sex Discrimination Act 1984 (Cth). Protections for same-sex relationships were also introduced in 2008 (Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 (Cth)) and in 2013 with the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth). The Sex Discrimination Act 1984 (Cth) makes it unlawful for people to be treated unfairly because of their: sex; gender identity; intersex status; sexual orientation and marital or relationship status (including same-sex de facto couples). These protections apply to lesbian, gay, bisexual, transgender, gender diverse and intersex people. A complaint mechanism is available through the Australian Human Rights Commission if anyone has been discriminated against on the basis of their sexuality or gender status.
[6] Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, assent 28 June 2013.
[7] Second Reading Speech, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, Commonwealth, House of Representatives, Debates, 21 March 2013, p 2893.
[8] Australian Human Rights Commission, New protection against discrimination on the basis of sexual orientation, gender identity and intersex status at www.humanrights.gov.au/our-work/sexual-orientation-sex-gender-identity/projects/new-protection, accessed 30 November 2021.
[9] Australian Centre for Lesbian and Gay Research, The pink ceiling is too low — Workplace experiences of lesbians, gay men and transgendered people, 1999, p 28, available to order from http://sydney.edu.au/arts/centres/aclgr/publications.html, accessed 8 February 2011. For broader information see, for example, the considerable amount of information on the Gay and Lesbian Rights Lobby’s website available, at http://glrl.org.au, accessed 30 November 2020; Anti-Discrimination Board of NSW, What is lesbian discrimination?, 1990; and Annual Reports of the Anti-Discrimination Board of NSW, at https://antidiscrimination.nsw.gov.au/anti-discrimination-nsw/about-us/reports-and-submissions/annual-reports.html, accessed 30 November 2021.
[10] W Leonard, et al, Private Lives 2: The Second National Survey of the Health and Wellbeing of GLBT Australians, Australian Research Centre in Sex, Health & Society, at www.glhv.org.au/files/PrivateLives2Report.pdf, accessed 27 November 2017.
[11] LGBTIQ+ Health Australia, “The 2021 update”, 13 May 2021 at https://www.lgbtiqhealth.org.au/statistics/, accessed 30 November 2021.
[12] ibid at https://d3n8a8pro7vhmx.cloudfront.net/lgbtihealth/pages/549/attachments/original/1620871703/2021_Snapshot_of_Mental_Health2.pdf?1620871703, accessed 30 November 2021.
[13] NSW Legislative Council’s Standing Committee on Social Issues Final Report into Gay and Transgender Hate Crimes, Report 58, May 2021, p 48 at https://www.parliament.nsw.gov.au/lcdocs/inquiries/2562/Report%20No%2058%20-%20Committee%20on%20Social%20Issues%20-%20Gay%20and%20Transgender%20hate%20crimes%20between%201970%20and%202010.pdf accessed 30 November 2021.
[14] ibid, p 51.
[15] NSW Government, Premier’s press release, “Inquiry into gay hate and transgender hate crimes beteween 1970 and 2010 announced”, 4 November 2021 at https://www.nsw.gov.au/media-releases/inquiry-into-gay-hate-and-transgender-hate-crimes-between-1970-and-2010-announced, accessed 30 November 2021.
[17] NSW Attorney General’s Department, You shouldn’t have to hide to be safe — A report on homophobic hostilities and violence against gay men and lesbians in NSW, see n 9, pp xi, 23.
[18] Although no such defence exists at law, the term “homosexual advance defence” is used to describe those “cases in which criminal defendants have claimed they acted either in self-defence or under provocation when committing acts of violence against homosexual men who had made sexual advances towards them”: J Keane, Sentenced Homicides in New South Wales, 1994–2001, Research Monograph 23, 2004, Judicial Commission of NSW, Sydney, p 98. The term “homosexual panic defence” is used to describe the uncontrollably violent response of a person to a homosexual advance and operates as “some form of insanity or diminished capacity defence”: Criminal Law Review Division, Homosexual Advance Defence: Final Report of the Working Party, 1998, Sydney, para 2.2, at <www.lawlink.nsw.gov.au/lawlink/clrd/ ll_clrd.nsf/pages/CLRD_had>, accessed 8 February 2011. As to the pre-13 June 2014 position see: Green v The Queen (1997) 191 CLR 334. In this case, the High Court “upheld the view that the defence of provocation may be available to a person who kills in response to a non-violent homosexual advance”: Supreme Court of Queensland, Equal Treatment Benchbook, see n 8, p 254 — but see Kirby J’s powerful dissenting view in this case and similar comments by McPherson JA in R v Irving [2004] QCA 305. See also I Potas, “Sexuality-related hate crime”, (2004) 16(3) Judicial Officers’ Bulletin 18.
[19] The Crimes Amendment (Provocation) Act 2014 repealed s 23 of the Crimes Act 1900 and substituted what is described as “extreme provocation”. These legislative changes were introduced following the Legislative Council’s Select Committee on the Partial Defence of Provocation which “unanimously recommended retaining but significantly restricting the partial defence … to ensure that it could not be used in cases where the provocation claimed was infidelity, leaving a relationship or a non-violent sexual advance”. Section 23(2) provides an act is done in response to extreme provocation if and only if: (a) the accused acted in response to conduct of the deceased towards or affecting the accused; and (b) the conduct of the deceased is a serious indictable offence (punishable by 5 years imprisonment or more); and (c) the deceased’s conduct caused the accused to lose self-control; and (d) the deceased’s conduct could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased. Section 23(3) excludes conduct from being provocative if the conduct was a non-violent sexual advance to the accused, or the accused incited the conduct in order to provide an excuse to use violence against the deceased. The provocative conduct does not need to occur immediately before the act causing death: s 23(4).
[20] National LGBTI Health Alliance, Snapshot of Mental health and suicide prevention statistics for LGBTI people, July 2016, at http://lgbtihealth.org.au/wp-content/uploads/2016/07/SNAPSHOT-Mental-Health-and-Suicide-Prevention-Outcomes-for-LGBTI-people-and-communities.pdf, accessed 2 November 2017. See further https://d3n8a8pro7vhmx.cloudfront.net/lgbtihealth/pages/549/attachments/original/1620871703/2021_Snapshot_of_Mental_Health2.pdf?1620871703, for a 2021 update which breaks down the percentage based on LGBTQA+, transgender and gender diverse statistics, comparing them to the general population.
[21] Pitts, M et al (2006) Private lives: A report on the wellbeing of GLBTI Australians, Latrobe University, Melbourne.
[22] Nicholas J and J Howard (1998) Better dead than gay? Depression, suicide ideation and attempt among a sample of gay and straight-identified males aged 18–24, Youth Studies Australia, 17(4): 28–33.
[23] Beyond Blue, Factors affecting LGBTI people at https://www.beyondblue.org.au/who-does-it-affect/lesbian-gay-bi-trans-and-intersex-lgbti-people/factors-affecting-lgbti-people, accessed 8 November 2021.
[24] Suicide Prevention Australia Position Statement, “Suicide and self-harm among gay, lesbian, bisexual and transgender communities”, 2009, p 6.
[25] K Robinson et al, “Growing up queer: issues facing young Australians who are gender variant and sexuality diverse”, Young and Well Cooperative Research Centre, 2014, p V.
[26] A Chapman, “Sexuality and Workplace Oppression” (1995) 20 Melbourne University Law Review 311 at 315; Supreme Court of Queensland, Equal Treatment Benchbook, see n 8, p 247.
[27] There was an Australia-wide increase of 32% of same-sex couples identifying as such since 2006 representing 1% of all couples in Australia. In the 15 years between 1996 and 2011, the number of same-sex couples more than tripled: Couples in Australia, 4102.0 — Australian Social Trends, July 2013, at www.abs.gov.au/AUSSTATS/ abs@.nsf/Lookup/4102.0Main+Features10July+2013, accessed 27 September 2017. In the 15 years between 1996 and 2011, the number of same-sex couples more than tripled.
[28] See for example, Anti-Discrimination Board of NSW, Skool’s out.
[29] Formative evaluation of the NSW Proud Schools Pilot: Stage 2, Final Report, Department of Education and Communities, 2014.
[31] Australian Bureau of Statistics, Australian Social Trends (ABS Cat No 4102.0), July 2013 at www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4102.0Main+features10July+2013, accessed 26 September 2017.
[32] See for example, J Millbank, Meet the parents: A review of the research on lesbian and gay families, Gay and Lesbian Rights Lobby, 2002, at http://glrl.org.au, accessed 8 February 2010. The 2006 Census reports that only 1.0% of couples with children are same sex couples, at www.abs.gov.au/, accessed 18 February 2011.
[33] R Graycar and J Morgan, The Hidden Gender of Law, 2nd edn, 2002, The Federation Press, Leichhardt, NSW, p 89.
[34] ibid.
[36] People who identify as LGBTIQ experience intimate partner violence at similar rates as those who identify as heterosexual. Service providers generally lack awareness and understanding of the LGBTIQ population and their experience of intimate partner violence: see M Campo and S Tayton, “Intimate partner violence in lesbian, gay, bisexual, trans, intersex and queer communities”, Australian Institute of Family Studies, December 2015 at https://aifs.gov.au/cfca/publications/intimate-partner-violence-lgbtiq-communities, accessed 8 November 2021. See also, C Chan, “Domestic violence in gay and lesbian relationships”, Australian Domestic and Family Violence Clearing House, 2005, at www.adfvc.unsw.edu.au, accessed 10 February 2011. The Inner City Legal Centre operates the Safe Relationships Project, which provides court assistance in accessing legal representation and to apply for ADVO’s or APVO’s and other support for people who are gay, lesbian or bisexual; people who are transgender; and people who are intersex and are experiencing or escaping an abusive relationship: see https://www.iclc.org.au/our-services/safe-relationships-project/, accessed 8 November 2021. Information about same sex domestic violence is also available at “Another Closet”: http://ssdv.acon. org.au.
[37] MR Stevenson, “Public policy, homosexuality and the sexual coercion of children” (2000) 12(4) Journal of Psychology & Human Sexuality, 1–19; see also statistics cited and fully referenced in an article on the website of the National Gay and Lesbian Task Force (USA): S Cahill and K Jones, “Child Sexual Abuse and Homosexuality”, (2002) at www.pinktherapy.com/downloadables_new/youth/Child_Sexual_Abuse_&_Homosexuality.pdf, accessed 18 February 2011.
[38] B Adair, “Child Sexual Assault” (1996) 8(5) Judicial Officers’ Bulletin 33 at 33.
[39] J Millbank, Meet the parents: A review of the research on lesbian and gay families, Gay and Lesbian Rights Lobby, 2002, p 7, at http://glrl.org.au, accessed 9 February 2011.
[42] Beyond blue, Statistics, at https://www.beyondblue.org.au/media/statistics, accessed 30 November 2021.
[43] ibid.
[44] Crimes Act 1900 (NSW), s 66C.
[45] Schedule 1, Pts 1 and 2 of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced on 9 December 2017.
[46] Schedule 1, Pt 1, cl 58, ibid.
[47] Family Law Act 1975 (Cth), s 4AA(2).
[48] Births, Deaths and Marriages Registration Act 1995 (NSW), arising from amendments made by the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW), commenced 22 September 2008.
[49] Section 18 as amended by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 (No 144, 2008). This Act amended about 85 Commonwealth laws to take account of same sex relationships and give same sex couples in a de facto relationship or registered relationship the same rights as de facto opposite sex couples.
[50] H Robert and F Kelly, The legal benefits married couples have that de facto couples do not, La Trobe University, 21 September 2017.
[51] Note that s 41 of the Evidence Act 1995 (NSW) provides that a judicial officer must disallow improper questions (for example, misleading or confusing, or unduly annoying, harassing, intimidating, offensive, humiliating or repetitive) questions and also provides that questions must not be put to a witness in a “manner or tone that is belittling, insulting or otherwise inappropriate” or “has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability”). Sections 26 and 29(1) of the Evidence Act 1995 also enables the court to control the way in which witnesses are questioned, the manner and form of questioning of witnesses, and s 135(b) of the Evidence Act 1995 allows you to exclude any evidence that is unfairly prejudicial to a party or is misleading or confusing.
[52] ibid.
[53] ibid.
[55] Supreme Court of Queensland, Equal Treatment Benchbook, 2016, see n 26, p 253, citing R v McEwen (unrep, WASC, 18/3/96) and CJ Simone, “Kill(er) man was a battered wife: The application of battered woman syndrome to homosexual defendants: The Queen v McEwen” (1997) 19 Sydney Law Review 230 at 235.
[58] Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, 2002, Sydney, at www.judcom.nsw.gov.au/publications/benchbks/criminal, accessed 9 February 2011.
[59] Judicial Commission of New South Wales, Local Courts Bench Book, 1988, Sydney.
[60] The “Court of Morals” Direction, NSW Criminal Law Review Division, Homosexual Advance Defence: Final Report of the Working Party, 1998, para 6.12, cited in Supreme Court of Queensland, Equal Treatment Benchbook, see n 26, p 253.
[61] See also Judicial Commission of New South Wales, Sentencing Bench Book, 2006, Sydney, at [1-000], see www.judcom.nsw.gov.au/publications/benchbks/sentencing, and R v Henry (1999) 46 NSWLR 346 at [10]–[11].
[62] See Div 2, Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Charter of Victims Rights (which allows the victim access to information and assistance for the preparation of any such statement). Note that any such statement should be made available for the prisoner to read, but the prisoner must not be allowed to retain it.
[63] Crimes (Sentencing Procedure) Act 1999, s 30A.