Same Sex Enquiry
Human Rights Unit
Human Rights and Equal Opportunity Commission
GPO Box 5218
Sydney NSW 2001

Email: samesex@humanrights.gov.au

Thank you for the opportunity to make a submission to the National Inquiry into Discrimination against People in Same Sex Relationships.

1. Inner City Legal Centre

This submission is made by Inner City Legal Centre (ICLC). ICLC is a community legal centre based in Darlinghurst in inner Sydney. We receive funding under the Community Legal Centres funding program to provide free legal services and advocate for law and policy reform. Our legal services include information and referral, advice, representation and community legal education.

In addition to providing general community legal services to people in the inner city area, we also specialise in providing legal information, advice and representation to members of the gay, lesbian and transgender communities across NSW. For many years we have run a Gay and Lesbian Legal Advice Service on Wednesday evenings using volunteer solicitors recruited for this role. We also work closely with a range of gay, lesbian and transgender organisations, in particular the Gay and Lesbian Rights Lobby, the Gay and Lesbian Counselling Service, the AIDS Council of NSW and the Gender Centre.

Of the gay, lesbian and transgender clients we see, a substantial proportion of these contacts involve legal issues relating to discrimination. About 33% are related to relationships, children and parenting.

In 2005 we launched the second, updated edition of our online publication, “Talking Turkey: A Legal Guide for Lesbian Mothers and Sperm Donors in NSW”. It can be found at www.iclc.org.au/talking_turkey/

In July 2006 we will be launching “Love, Loss and the Law”, a pamphlet for people whose same sex partner has died.

2. Relevant human rights principles 

We have considered the material in s6.1 of the Discussion Paper relating to international human rights law. This is not an area of expertise for this centre, but in relation to the International Covenant on Civil and Political Rights (ICCPR) we agree with the suggestion that discrimination on the basis of sexual preference or sexual orientation is more properly classified as discrimination on the grounds of “other status” rather than an aspect of sex discrimination. We submit that sexuality, (or sexual preference or sexual orientation) is a characteristic that is distinct from the sex of a person.

It our experience that Australia is failing to comply with the ICCPR in relation to the treatment of people who are in same sex relationships. In the last decade the NSW government has amended many laws with the effect that people in same sex relationships are treated equally with people in opposite sex defacto relationships. However, there remain some areas of NSW legislation, such as adoption, where people in same sex couples are not treated equally.

In the area of Federal legislation, there has been very little progress in removing discrimination against people in same sex relationships. (Although, as noted in the discussion paper, in relation to eligibility for Centrelink payments, the discrimination can operate to the financial benefit of people in same sex relationships and their children.) 

ICLC has many clients in same sex relationships who have children. Some of these children have been born in previous heterosexual relationships. However, we have many clients who are lesbians who have conceived children using donor sperm. Of these women, a majority are in a same sex relationship and have made a decision to raise a child or children together as a couple. We submit that these children and their families are disadvantaged and discriminated against by both Federal, state and territory laws, and that as a result Australia is failing to comply with the Convention on the Rights of the Child. The main reason for the disadvantage to the child is that the female partner of the birth mother is not recognised as a legal parent.

This can be contrasted with the position of a heterosexual couple who conceive a child using donor sperm. The male partner, who has no biological relationship with the child, is the legal parent of the child by operation of the Status of Children Act 1996 NSW

3. Gay and Lesbian Parents and their Children

We are not able to provide data on the numbers of children who have gay and lesbian parents. However, we note the following information from the NSW Gay and Lesbian Rights Lobby publications “Meet the Parents” (2002) and “And Then .....the Brides Changed Nappies (2003):
•	Up to 10% of gay men and 20% of lesbians are parents
•	Up to half of these parents have had children in previous heterosexual relationships, but this proportion appears to be gradually declining
•	The vast majority of lesbian mothers now having babies are doing so through donor insemination
•	Most lesbian mother now having babies are doing so as a member of a lesbian couple (85%)
•	Many lesbian mothers having children through donor insemination do so with known donors
•	Most known donors are gay men

The first edition of the ICLC publication “Talking Turkey” was published in 1999, and was written in response to the large numbers of lesbians and gay men approaching ICLC for advice in relation to donor insemination arrangements. ICLC continues to have lesbian couples, individual lesbians and gay sperm donors come to us for legal advice on a regular basis.
In February 2006 the Gay and Lesbian Counselling Service held a forum on parenting. It attracted an audience of one hundred and thirty people and others had to be turned away because of lack of space.

We understand that the Leichhardt Womens Health Centre has been running sessions on pregnancy and parenting for lesbians for the past eight years.

Despite the lack of data, our experience confirms that there are significant and increasing numbers of gay and lesbian people who have children, or are planning to have children.. By far the most common family pattern among our clients is a lesbian couple who have one or more children using a known donor who is a gay male friend. However, there is a significant minority of lesbian couples who use anonymous donor sperm.

The lack of recognition of the families of gay and lesbian people has implications for employment and financial entitlements.

Leave entitlements
The provisions in the Workplace Relations Amendment (Work Choices) Act 2005 providing for a ‘guarantee of paternity leave’ apply only to a ‘male employee’ who is the ‘spouse’ of a woman giving birth. This precludes the female partner of a woman who has given birth from receiving parenting leave.

The provisions in the Industrial Relations Act (NSW) 1996 are similarly restrictive.

Under section 93D of the Workplace Relations Amendment (Work Choices) Act 2005 paid or unpaid carer's leave may only be taken by an employee to provide care or support to a member of the employee’s ‘immediate family’. This may be ‘a spouse, child, parent, grandparent, grandchild or sibling of the employee’.

- ‘Spouse’ is defined as including ‘a de facto spouse’ who is ‘a person of the opposite sex to the employee who lives with the employee as the employee's husband or wife on a genuine domestic basis although not legally married to the employee’, and

- ‘Child’ is defined as including ‘an adopted child’.

Workchoices now covers a majority of employees in Australia. For these employees there appears to be no statutory entitlement to carer’s leave for a woman who is not the birth mother to care for her child, or for people in same sex relationships to care for a partner.

Child Support
An obvious example of discrimination against children based on the status of their parents is the operation of the Child Support Act. Where a lesbian couple agree to raise a child or children, and the child is conceived by artificial insemination using donor sperm, difficulties can arise if the couple later separate.  If the birth mother is the residential parent after separation, her former same sex partner is not compelled to pay child support under the provisions of the Child Support Act. This can be compared to the situation where a woman with a male partner conceives a child using donor sperm. Although her male partner has no biological relationship to the child, he is deemed to be the father of the child and if the couple separate, the male former partner would have a liability to pay child support for the benefit of that child.

Inheritance
Another example is related to intestacy. In New South Wales, same sex partners are treated in the same way as heterosexual de facto partners when a person dies without a will. However, if a member of a lesbian couple with a child dies without a will, and she is not the birth mother, the child will not inherit under intestacy provisions. A child may well have a claim under the Family Provision Act, but this can be a lengthy and expensive process.

4. Discrimination laws

The NSW Anti Discrimination Act 1977 prohibits discrimination on the grounds of homosexuality in the prescribed areas of employment, education, accommodation, the provision of goods and services and registered clubs. . It is a significant gap in Federal discrimination laws that there is no equivalent protection. We submit that the Commonwealth Sex Discrimination Act does not provide a remedy in circumstances where the discrimination was based on sexual orientation.

In addition to removing discrimination against people in same sex relationships from the operation of federal, state and territory laws, in compliance with the ICCPR, a Federal law to protect people from discrimination on the ground of their homosexuality, bi sexuality, or same sex partnership is required. Anti discrimination laws go beyond the government and public arena to provide remedies to people who are discriminated against by private individuals and organisations, such as clubs, retailers, education providers and employers. Actions by these kinds of bodies can relate to financial entitlements and benefits, such as membership fees, discounts for family members, benefits for de facto partners etc.

5. Case studies

We have extensive experience advising large numbers of gay and lesbian clients. We provide the following case studies as examples of discrimination or less favourable treatment of people in same sex relationships.

1. Superannuation
Our client has been in a same-sex relationship for the past seven years. He wants his partner to be paid his superannuation benefits in the event of his death.

Our client is an employee of a local council in Sydney. His conditions of employment are governed by the Local Government (State) Award 2004. Under this Award, the Council is required to make superannuation contributions to the Local Government Superannuation Scheme (‘LGSS’).

The LGSS Trust Deed provides that the payment of benefits by a Trustee shall be subject to the Superannuation Law and the Trustee shall not be required to pay a Benefit to the Beneficiary, dependant, legal personal representative or any other person other than in accordance with the Superannuation Law. 

The LGSS is subject to the Superannuation Industry (Supervision) Act 1993 (“The SIS Act”). Section 10 of the SIS Act defines a dependant as the spouse of a person, the child of a person or any person with whom the person has an interdependency relationship.

Defacto heterosexual couples are included in the definition of ‘spouses’ in Section 10 of the SIS Act, and accordingly do not need to meet the interdependency test.

As our client and his partner are in a same-sex relationship, they need to satisfy the interdependency test.

Section 10 A of the SIS Act defines an interdependency relationship as being a relationship where two persons:

a)	Have a close personal relationship; and
b)	They live together; and
c)	One or each of them provides the other with financial support; and
d)	One or each of them provides each other with domestic support.

The terms ‘close personal relationship’, ‘financial support’, and ‘domestic support’ are not defined within the SIS Act. The discretion rests with the Trustee to decide whether our client’s relationship is interdependent. Whilst our client lives with his partner, the property is in our client’s name and his partner pays him rent. They have a joint bank account for common expenses, but also keep separate bank accounts.

Our client is not able to choose a fund which allows binding death benefit nominations as the LGSS does not enable this.

2. A lesbian family
Our clients, Liz and Michaela, have been in a de facto relationship for five years. They decided they wanted to have children, and each of them conceived a child using sperm from the same anonymous donor. They consider themselves to be the parents of their two children and the family live in a Sydney suburb. Liz’s parents consider both the children to be their grandchildren, and they regularly spend time with the children. Michaela’s parents live overseas.

Liz and Michaela have orders made under the Family Law Act by consent giving each of them parental responsibility in relation to the child they did not give birth to. This creates a legally recognised relationship, but does not make Liz and Michaela the parent of each other’s birth child. Under the NSW Adoption Act it is not possible for Liz and Michaela to adopt each other’s birth child.

Lisa and Michelle work for companies in the hospitality industry under Federal Awards. They were not entitled to parenting leave when their partner had a child. Neither of them has an entitlement to carer’s leave for their partner or the child they did not give birth to.

The discussion paper identifies the range of rebates and entitlements to which they will not have access relating to tax rebates, the Medicare levy, the Pharmaceutical Benefits safety net, and childcare rebates.
6. References

Talking Turkey: A legal Guide for Lesbian Mothers and Sperm Donors in NSW
Inner City Legal Centre 2005
www.iclc.org.au/talking_turkey/

Inner City Legal Centre Annual Report 2004/2005
www.iclc.org.au

And then .....the Brides Changes Nappies
Final Report 
Jenni Millbank and the Gay and Lesbian Rights Lobby Inc 2003
www.glrl.org.au

7. Contact person

Natalie Ross
Principal Solicitor
Inner City Legal Centre

[Details removed]