Millbank, Jenni --- "'Which, then, would be the 'husband' and which the 'wife'?': Some Introductory Thoughts on Contesting 'the Family' in Court" [1996] MurdochUeJlLaw 26; (1996) 3(3) Murdoch University Electronic Journal of Law

"Which, then, would be the 'husband' and which the 'wife'?": Some Introductory Thoughts on Contesting 'the Family' in Court

Author: Jenni Millbank Lecturer in Law, University of Sydney Issue: Volume 3, Number 3 (September 1996) Click on the image at left for a 1.1 MB QuickTime video clip of Jenni Millbank speaking. You will be prompted to install the necessary QuickTime plugins for Netscape if they are not currently installed on your machine.

Rights, Gender, Family

1. In the past 10 years gay and lesbian equality claims in Western liberal democratic states have come to rest on family. In the most general way, lesbian and gay legal initiatives seem to have shifted from the right to be privately sexual, that is the right to have same-sex relationships at all (mostly, but not entirely a male issue), to the right to be individual civic subjects, protected from discrimination in the work place and in the provision of services, toward the right to have relationships given status by the law. This shift in rights-focus, from decriminalisation, to civil protection, to civil recognition is, of course, not entirely a linear one. In some jurisdictions the 'first stage' fight over the criminality of sex is still current - notably in Tasmania,[1] and also in several American states[2] (where although not enforced, so-called sodomy statutes are used, for example, to deny lesbian mothers and gay fathers custody as their criminal status renders them unfit.[3]) However, family claims have come to be a major part of, and perhaps even to dominate, a great deal of lesbian and gay rights talk.

2. In many ways, Family - by which I mean partnerships and parenthood - is a natural watershed for lesbians and gays. After all, lesbians and gays, although individuals, are defined as stigmatised groups precisely because of their intimate relationships.[4] It makes sense for lesbians and gays, as well as their opponents, to choose relationships as a focus of contest. The Christian and secular Right has opposed all gains in legal and social status to lesbians and gays on the basis that they are a threat to 'the family'.[5] The Right have vigorously promoted the idea that the heterosexual nuclear family is the basis of social order[6] and must be defended through rights denials to those who do not conform to it. Within this paradigm, lesbians and gays have been characterised as destabilising and inherently anti- social. We have also been characterised as contagious and converting, thus children - our own or anybody else's - must be quarantined as far away from us as possible (a view ironically enshrined in Anti-Discrimination legislation in three Australian states where protections to lesbians and gays specifically exclude "work with children."[7]) From the mid 1980s, while the conservative rhetoric of 'family values' rose to dominance in the USA and also Canada and Australia, lesbians and gays began to counter with their own claims, both legal and rhetorical: 'We are family.'[8]

3. This article will focus on a number of cases concerning 'family' in recent years and the new directions that these claims are taking. Previously such litigation-based rights claims have mostly been run by gay men seeking access to marriage or spousal status (institutions which feminists were simultaneously deconstructing).[9] Lesbians have generally appeared in litigation defensively, almost exclusively as mothers defending their fitness in child custody proceedings with ex-husbands or in welfare proceedings brought against them by the state.[10] Through 1995 and 1996, a number of cases appeared in which women were the litigants, using the courts to seek access to benefits or rights from former partners (such as spousal or child support)[11] or from the state (such as marriage or adoption rights).[12] It therefore seems more justifiable than ever before to see family claims as central within lesbian and gay rights struggles.

4. This paper will focus on Australian case law and then draw links with developments in cases, mostly from Canada, in recent years. I deliberately consider both 'public' actions against the state - for example cases which challenge statutory definitions of spouse under constitutional mechanisms, with 'private' actions - such as cases where a lesbian seeks child or spousal support from her former partner. I do so because all of these actions are about contesting meaning; the meaning of family. I also believe that all of the cases are political, whether they are intended to be or not, because they bring lesbian and gay lives into a public forum and they seek to institute change by doing so.[13]

5. My question in examining these cases is: What happens when lesbians and gays try to fit within existing legal doctrines and definitions of family? Does the process of trying to fit entail sacrificing our own meanings? What if family constricts rather than expands rights to lesbians and gay men? What if we like some of what family means and not the rest - is there any room to pick and choose once the process is under way? As Didi Herman asks, 'Can we say "we are family" and "we are not family" at the same time?'[14]

6. Most family claims cases have focused upon statutory definitions of particular words, usually 'spouse', 'parent' or, less often, 'dependant'. This is because even where statutes or other rules use the term 'family' it tends to then be defined by a sub-rule as involving any of the above categories. I will begin with the contest over the meaning of parent in the recent 'lesbian child support case' the NSW equity decision in W v G[15] and go on to compare the relative successes and compromises tied up in spouse/dependant partnership cases.

   Parent

7. W v G is a landmark in Australia because it is the first case to my knowledge that sees a lesbian co-mother as a parent. In this case two women separated after an eight year lesbian relationship into which two children were born. The plaintiff, Wendy, was the biological mother of both children, born after she had self-inseminated sperm donated by known donor. Wendy approached court asking for 'equitable compensation' from Grace by means of a lump sum towards the cost of maintaining the two children to the age of 18. The claim was successful, and Wendy was granted a lump sum of around $150,000 from Grace's estate.

8. In the absence of statutory recognition of a co-mother as a parent,[16] Wendy's counsel sought to circumvent the statute with a novel use of the promissory estoppel principle from Waltons v Maher.[17] Wendy successfully argued that by virtue of Grace's statements in support of Wendy having children, Grace's (contested) participation in the insemination process and her silence as to any contrary view, Grace had promised that she would 'accept the role of parent to each of the children, and would in so doing accept responsibility for the material and general welfare of both children' (56-57). In reliance on that implied promise, Wendy had two children, which was to her detriment in the sense that she would now be left to support them to adulthood alone.

9. The process by which Grace was constructed as a parent, or not, throughout the case is revealing. The court had to fit the facts into the available legal doctrine - promissory estoppel - so it had to find a promise. In looking for a promise, the court considered letters and cards written by Grace which referred to them as a family and wills made by Grace in favour of Wendy and the children. A major focus, however, was the extent of Grace's involvement in the insemination process itself. Did Grace, or didn't she, inject the sperm with her own hand? The court asked and the parties argued. Grace's position as a co-parent (or not) seemed to hinge rather on the extent to which she could be viewed as akin to a father.[18] Fathers are 'responsible' for children in the sense that they contribute to their birth, and so are 'responsible' in a legal sense for their upkeep. Is this what co-mothers are? Is this what Grace was? And why? Is there no other way to see a co-mother's connection to, and responsibility for, children?

10. Within such a framework, a functional family relationship between Grace and the children became irrelevant to the question of her liability to support them. The case did not mention, for example, whether Grace was present at the birth of either child, whether she supported them financially, whether they related closely to her or saw her as a parent. Thus, as a landmark case recognising a lesbian co-mother as a parent, it sends a decidedly mixed message, as her parenting is never really part of the picture.

11. Moreover, the decision in W v G applied a case about building supermarkets to raising children without acknowledging the wider legal context in which the parties were operating. As I have pointed out elsewhere, Grace was recognised as a parent in that she had a responsibility to pay but she had virtually no rights in connection with the children. [19] In NSW and federal legislation, Grace's legal relationship with the children, in areas such as intestacy, guardianship, worker's compensation and superannuation simply doesn't exist. When the context of co-mother invisibility is taken into account, the recognition of a lesbian co-mother's financial liability in W v G seems a very mixed blessing indeed.

12. The 1995 Canadian case of Re K[20] provides a contrast to W v G in that it successfully attacked the exclusory statute itself,[21] rather than trying to circumvent it, and it was not an intra- lesbian dispute. In that case four lesbian couples who had borne and raised children within their relationships wished for the co-mother to be legally recognised as a parent through adoption. The relevant adoption statute permitted adoption either by a single person or two persons who were spouses, and severed any legal connection with the biological parents in the process. Thus, for a co- mother to adopt her partner's biological child, the biological mother had to be a 'spouse' and co-adopt; and it was the opposite sex definition of spouse which was the subject of challenge. For this reason, although Re K concerned parenting, a claim to parenting depended upon being spouses and the legal arguments were about spousehood.[22] In that case, even if the plaintiffs wanted to make arguments about different family forms, it seems that in legal discourse all roads lead to a hetero-nuclear Rome: marriage or its de facto equivalent(s?). Re K, therefore appears as another spousal case.

    Spouse

13. The 'spouse' cases, directly challenging the opposite sex definition of spouse (which in many if not most jurisdictions now includes opposite sex unmarried couples who live together), were uniformly unsuccessful until very recently.[23] They are now achieving a tenuous success in Hawaii and Canada.[24] In 1995 the Supreme Court of Canada declared the opposite sex definition of spouse prima facie unconstitutional in a case brought by a gay male couple Egan (though saved in that instance by Section 1 of the Charter).[25] This was actually put into effect in two cases brought by lesbians, Re K (1995) and M v H (1996) to read same sex couples into statutes which previously had excluded them. So same sex couples are now permitted to apply to jointly adopt children and also to sue for spousal maintenance in Ontario.[26]

14. In the long line of cases that eventually led to this inclusion, the plaintiffs all stressed that their relationships were 'functionally' spousal - and often led their own and expert evidence on this point.[27] Claims to be 'functionally spousal' marginalise the opposite-sex element of spousehood and prioritise all of the other elements. So plaintiffs stressed the fact that they were in sexually monogamous, live-in, financially inter-dependant, lifelong, relationships. Just like straight married people. Or rather, just like the ideal of straight married people. Effectively, these claims posit a homo-nuclear family, just like the hetero-nuclear family, except that it is same-sex.[28] Didi Herman, writing about an earlier Ontario case[29] queries this vision of family, and warns lesbians against contributing to its valorisation by adopting it as a point of conformity. Herman and many other activists and academics have asked whether inclusion in such a model brings with it a corollary of exclusions - eg the exclusion of non- monogamous or non-cohabiting same sex couples.[30] Why should one familial form be privileged above all others? By litigating to be included in it, is this family form further privileged, and attempts to deconstruct it put further out of reach for everyone else? These questions are pressing, and seem as far from resolution within lesbian and gay communities as ever.[31]

15. Whatever reservations one may have about claims to functional spousal status and their use in the Canadian cases, they are considerably more sophisticated and palatable than some recent Australian developments. Of particular concern is the 1995 Australian case, Brown v the Commissioner for Superannuation. [32] In Brown, a gay man appealed to the Administrative Appeals Tribunal (AAT) seeking access to spousal benefits under his deceased lover's superannuation plan. Counsel for Brown claimed that the definition of a 'marital relationship' which included the phrase, 'lived with that other person as that other person's husband or wife' should include same-sex relationships.[33] The major argument was that the words 'husband' and 'wife' were no longer gender specific. To this end, the plaintiff sought to introduce expert testimony, (the tribunal received it but held that it was not admissible to determine the ordinary meaning of English words), and the dictionary was predicably hauled out.[34] The tribunal held that that you can be a husband and wife without getting married, but held that you cannot live as a husband and wife unless you are opposite sex. The tribunal reiterated time and again throughout the judgment that it is opposite sex, not marriage, that makes you married. More pointedly, the tribunal found an 'insurmountable obstacle' to the plaintiff's argument which was that if it were successful,

    [T]hen the question would arise as to how one would categorise the parties in a homosexual relationship. The fact that the partners to the relationship were male would surely not make them both 'husbands', any more than female partners would both be 'wives'. Which, then, would be the 'husband' and which the 'wife'? (385)

16. The question at the end of this quote brings a sense of grave unease concerning the ability of current legal discourse in Australia to see lesbian and gay relationships in anything other than a tragically heterosexist light. Moreover, if one must fixate on husbands and wives, the wording of the statute could readily have accommodated two husbands married to each other, or two wives married to each other. The contributor was always gender neutral in the statue under construction[35] - in contrast to, say, the definitions in de facto relationships statutes in all states, except the ACT, which sacrifice all manner of grammatical elegance to stress that they are exclusively opposite sex.. Unfortunately, this argument does not appear to have even been made. Instead, one of the plaintiffs experts argued a definition of 'husband'

    as a "man who takes the 'active' or 'masculine' role in homosexual relations; one who adopts the male role in a quasi-marital homosexual relationship characterised by role playing.' Similarly a secondary definition of 'wife' is "a man taking the traditional female role in a quasi-marital relationship between two men: the effeminate or female-acting partner in a homosexual union characterised by role playing.' (385-6)

17. This was, you have to remember, an argument made on behalf of a gay man. In essence, this was a 'functionally spousal' argument that prioritised a function of opposition - two opposite roles, just like in straight marriages. Or rather, just like the ideal of straight marriages, circa 1950. As a litigative strategy it was oppressive not only to the diversity and originality of lesbian and gay relationships, positing them as mere mimics; it was also oppressive to gender equality within heterosexual relationships - and it was this latter element that the tribunal leapt upon in rejecting the argument.[36]

18. The plaintiff in Brown tried to squash a gay relationship into a statutory definition however he could, and the tribunal refused to allow this. In the process, however, both the plaintiff and the tribunal acted to reinforce an exclusive, binary and oppositional definition of spousal relationships. As such, Brown is a testament to the perils of 'spousal' litigation in Australia thus far. It also stands in contrast to other Australian case law where the contested statutory term was not 'spouse' but 'dependant'.

    Dependant

19. The dependency cases in Australia are mostly, but not entirely concerned with the standing of gay men to bring family provision claims against their deceased lovers estates in New South Wales.[37] The 'dependant' cases have met with far more success in terms of result than 'spouse' cases, and I think this is not surprising, as there is less of an ideological challenge to traditional notions of family in acknowledging same sex couples as dependants rather than as spouses. What is fascinating is the success of the dependant cases in transforming meaning in the litigative process.

20. It seems to me that the meaning of 'dependant' has shifted through the case law. In the earlier cases it was taken to mean being substantially or wholly financially dependant upon to the extent of not engaging in self-support (as in a wage earner/non wage earner partnership).[38] Then the meaning was broadened somewhat, so that dependant was taken as being only partially financially dependant upon as well as emotionally dependant.[39] And, latterly, in Hope v NIB,[40] it has been broadened even further to encompass emotional and financial interdependence.

21. Hope hinged upon whether one member of a gay couple was the 'dependent' of his partner, the contributor, so that the men and the child they were raising could claim 'family' (ie less costly) health coverage. In deciding that the family coverage should apply, the EEO held (in language touchingly and perhaps unconsciously akin to a marriage vow) that 'dependent' is

    'an ordinary word having normal connotations of reliance and need, trust, confidence, favour and aid in sickness and in health including social and financial support and its normal meaning is not limited to financial dependence as contended by [the health insurer]. (76-021)

22. Both men were full time wage earners, and both were held to be 'a dependant of the other.' Thus the term 'dependent', and the traditional heterosexual financial model of wage earner/non wage earner that it implied has actually shifted in meaning to embrace interdependence - arguably a far more flexible and pluralistic concept. In this instance, the attempt to squeeze the relationship of two gay men into the statutory terms led, not to rejection or to an uncomfortable inclusion, but to a broadening of the term itself.

23. However, like so many of the cases, Hope is a conundrum, in that it simultaneously affirmed the earlier exclusive opposite sex definition of 'spouse' that occurred in Brown.[41] The gay couple in Hope were entitled to health cover as a family, because family was defined as a contributor and 'dependants'. The surviving gay partner in Brown was not entitled to a pension because pensions were available to 'spouses.' Thus to lawfully discriminate against same-sex couples one still need only substitute the word 'spouse' for 'dependant'. In Australia, at least, 'spouse' is still a trump card.

    Winning the Family Fight

24. Another question which arises for me from W v G, and many of the other cases under discussion is: what exactly is the prize in winning the family fight? Family, as a legal and policy construct, is often the site at which the state seeks to privatise costs, as well as a site which is privileged in taxation and other matters. Susan Boyd argues that,

    it is not necessarily a radical achievement to be equated with heterosexual people and relationships. It may invoke and reinforce the history of heterosexist and patriarchal family law and support its use to privatise economic responsibility for dependent persons.[42]

25. W v G is a particularly tricky case in this regard, as on close reading it is possible that the imperative to hold Grace financially liable was not so much law's desire to validate a lesbian family as a somewhat more fiscal impulse to find a source of private support, whatever the gender of the source. Wendy had received social security support for both of the children throughout their lives and at the conclusion of the judgment, Hodgson J states that it is necessary to protect the interests of the community, which has already paid substantial child support to the plaintiff and no doubt will continue to do so, by ensuring that this award is used appropriately ...(at 48)

26. The judge goes on to say that a copy of the judgment should be given to the Department of Social Security.

27. As I have noted elsewhere, same sex couples in Canadian cases have had far more success when recognition of their relationship saved the state money in contrast to when recognition would have cost the state money. [43] I am not suggesting that cost-cutting is the sole or even dominant motive for courts choosing to recognise same sex relationships. However I do think that in an era in which the welfare state is being dismantled, 'the family' as an institution and site of policy direction is not necessarily going to be a haven.

28. In the Canadian context, Claire Young has analysed the effects of including same sex couples as spouses for taxation and employment purposes.[44] She finds that recognition would be of benefit to high earner couples, of greatest benefit to couples with one high earner and one non earner, and would actually be impoverishing to couples with two low earners. Applying a class analysis to the situation, Young argues that same sex spousal recognition 'results in more privilege for the already privileged' and, taking the gender wage gap into account, will benefit gay men far more than lesbians.[45]

29. The question of whether the benefits of familial recognition in federal or state laws in Australia would outweigh the costs remains to be seen - and cannot be determined until there is reliable information on lesbian and gay living and income patterns. At the very least, federal recognition of same sex couples would serve to further impoverish couples where both partners received welfare, or where one partner received welfare and the other was employed.

    Conclusion

30. This paper is a very tentative introduction to research on lesbian and gay family litigation. I am interested in analysing the discomfort involved in trying to fit lesbian and gay lives within existing legal categories of family. This is an ongoing process, and quite a new one in Australia, so this paper concludes, as it began, with more questions than answers.

31. The litigative process to date has mostly been one of claiming 'likeness' with heterosexual couples and the hetero-nuclear family. It is only recently that any such claims have been successful. Those successes brings with them hesitation as well as celebration. It is possible that as time goes by, litigative strategies will become both more imaginative, and more respectful of lesbian and gay diversity. It is essential, however, to ask now: What are we asking for? And what if we get it?

Notes

[1] See the Toonen case, Communication No 488/1992 reported by Ivan Shearer, (1995) 69 Australian Law Journal 600. The United Nations Human Rights Committee declared admissible Nicholas Toonen's complaint that sections of the Tasmanian Criminal Code criminalising gay male sex breached articles 17 (privacy) and 26 (equality) of the ICCPR. However the Committee based its decision in his favour on the privacy ground and left the equality ground undecided.

[2] The constitutionality of statutes criminalising gay sex was upheld by the US Supreme Court in Bowers v Hardwick [1986] USSC 194; 478 US 186 (1986). Notably Bowers was not once mentioned in the recent US Supreme Court decision Romer v Evans 1996 WL 262293 (which held that ballot driven constitutional amendments preventing the state of Colorado from protecting lesbians and gays from discrimination were unconstitutional).

[3] The most recent, and notorious, case concerns Sharon Bottoms, who was found to be an 'unfit' parent by virtue of her (criminal) lesbian relationship. The trial court stated: I will tell you first that the mother's conduct is illegal. It is a Class 6 felony in the Commonwealth of Virginia. I will tell you that it is the opinion of this Court that her conduct is immoral. And it is the opinion of this court that the conduct of Sharon Bottoms renders her an unfit parent. Sharon successfully appealed to the Court of Appeals, but this decision was overturned by the Supreme Court of Virginia where the criminality of the 'conduct inherent in lesbianism' was again an 'important consideration in determining custody'. See Bottoms v Bottoms WL 234222 (VA. Supreme. 1995), 444 SE 2d 276 (VA. App. 1994). For a recent appearance of 'illegality' in Australian case law see: Hartigan v Widdup (1992) (Unreported ACT SC, 23 March 1992, Master Hogan). The legal title holder sought to have the constructive trusts claim of his ex-partner of 17 years struck out on the basis of illegality -as gay sex was illegal in the ACT at the time their cohabitation began. The court circumvented the argument and denied the motion.

[4] Although the fact that lesbians and gays tend to engage in same-sex relationships somehow seemed to pass the NSW EEO tribunal by when in 1985 it decided that the exclusion of two gay couples from an employment rostering system (which ensured married and heterosexual de facto couples would not be separated for lengthy periods) was not discrimination on the basis of marital status or homosexuality: see Wilson & Anor v Quantas Airways (1985) EOC 92-141.

[5] See Didi Herman, Rights of Passage, University of Toronto Press, Toronto, 1994. In Australia see eg Family Leave Test Case (1994) 57 IR 121 where the Australian Family Association put a submission to the tribunal which did not engage in the merits of the case at all; the sole purpose was to argue that 'family' should exclude lesbian and gay relationships.

[6] This view is widespread, and appears in many legal forums, both implicitly and explicitly. See for instance the International Covenant on Civil and Political Rights (Art 23(1)) and the Family Law Act 1975 (Cth) (s 43(b)) which both assert that 'the family' is 'the natural and fundamental unit of society'.

[7] See Anti-Discrimination Act 1991 (QLD) s 28; Anti-Discrimination Act 1992 (NT) s 37; Equal Opportunity Act 1995 (VIC) s 25. Many gays and lesbians are currently concerned that the focus of the NSW Royal Commission into Police Corruption (and consequent media coverage) on so- called 'homosexual assault' - the sexual abuse of male children by adult men - and the implicit conflation of homosexuality and paedophilia will give this anti-gay rhetoric a new breath of life.

[8] This was, for example, the theme supporting Karen Andrews' legal battle in Canada in the late 1980s. In Australia this was the theme of the 1993 Stonewall March and Rally, and the slogan on at least one of several photos of lesbians with their mothers, lovers and children in the 1993 'Lovely Mothers' poster series by the Word of Mouth arts collective.

[9] See eg the classic but much criticised book by socialist feminists Michele Barrett and Mary McIntosh, The Anti-Social Family, London, Verso, 1st ed 1982, 2nd ed 1991. Didi Herman deals with this conflict of approaches in 'Are We Family? Lesbian Rights and Women's Liberation' (1990) 28 Osgoode Hall Law Journal 789.

[10] This is consequently the issue with most academic and media coverage which I won't reiterate here. For a recent and thoughtful discussion of lesbian child custody issues see Susan Boyd, 'What is a Normal Family? C v C (A minor)(Custody Appeal)' (1992) 55 Modern Law Review 269.

[11] Eg in Ontario, Canada M v H (1996) 27 OR (3d) 593, in Australia W v G (1996) 20 Fam LR 49.

[12] In Hawaii, USA, Baehr v Lewin, 852 P 2d 44 (Haw, 1993) two lesbian couples and one gay couple challenged the exclusion of same sex couples from marriage and were successful in having the exclusion declared prima facie unconstitutional as sex discrimination. The State of Hawaii is now arguing that this discrimination is justifiable: see note WHAT. In New Zealand, Quilter, Pearl et al v The Attorney General (1996) (Unreported, NZ High Court, Auckland, 28 May 1996, Kerr J) was brought by three lesbian couples seeking marriage and was unsuccessful. In Ontario, Canada, Re K (1995) 15 RFL (4th) 129 (Ont. CJ) four lesbian couples successfully challenged a statute that prevented them from jointly adopting the children they co-parented. However it still seems, from the cases under discussion, that lesbian claims are more likely than gay men's claims to be made of necessity, because there are no or few other options, rather than to 'make a point' or strive for symbolic recognition. This is an issue I hope to explore in later research.

[13] Furthermore, any attempt to divide lesbian family litigation into public and private collapses when Canadian cases are taken into account - as Constitutional challenges can be undertaken as part of an inter-parte dispute, such as occurred in M v H (1996) 27 OR (3d) 593.

[14] (1990) 28 Osgoode Hall LJ 789 at 815.

[15] (1996) 20 Fam LR 49.

[16] The court held that the donor was not liable under federal Child Support legislation, as the Artificial Conception Act 1984 (NSW) defines donors of sperm, even known donors, as not fathers. Nor was Grace liable under child support legislation, as it only contemplates the liability of biological and adoptive parents. See Child Support (Assessment) Act 1989 (Cth) s s 3, 5, 29

[17] Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 (HC). Promissory estoppel as a 'sword', a way of actively enforcing what would otherwise not be a legal obligation, stems from this case.

[18] See also Anderson v Luoma (1986) 50 RFL (2d) 127, where the co-mother was continuously characterised as 'like' a father, even though the judge noted that 'The term "father" was not used of course...' at 135.

[19] 'An Implied Promise to Parent: Lesbian Families, Litigation and W v G (1996) 20 Fam LR 49' 10 Australian Journal of Family Law forthcoming.

[20] (1995) 15 RFL (4th) 129 (Ont. CJ).

[21] Child and Family Services Act, RSO 1990.

[22] Notably, however, the court also expressed the opinion that the co-mothers were prima facie liable to support the children under the relevant Family Law Act prior to the adoptions taking place: per Nevins J at 136.

[23] William Rubenstein extracts three unsuccessful cases by gay men in the USA in the 1970s in his text, Lesbians, Gay Men and the Law, New Press, NY, 1993. There appear to me to be far fewer cases brought by women seeking to marry, although there are some, including the ones noted above, supra note 12

[24] In 1993 in Baehr v Lewin the Hawaiian Supreme Court found the opposite-sex definition of spouse prima facie unconstitutional as sex discrimination: 852 P 2d 44 (Haw 1993). A parliamentary committee was established to consider responses to the case, and it recommended that same sex marriage and/or same sex domestic partnerships be made available in Hawaii: see State of Hawaii, Report of the Commission on Sexual Orientation and the Law, located at http://www.hawaii.gov/lrb/solcvr.html The report has not been acted upon. The next stage of the case, now titled Baehr v Miike, will be heard through September 1996. The government of Hawaii caries the burden of proving a compelling state interest in continuing the discrimination - and will focus on child rearing as its defence. For updates on the case, see http://www.qrd.org/qrd/usa/hawaii/marriage.update/. Baehr v Lewin and subsequent discussion has led to at least 20 other US states introducing laws to bar recognition of same-sex marriage and overriding federal legislation, ('The Defence of Marriage Act' no less) to the same effect.

[25] Egan et al v Canada (1995) 124 DLR (4th) 609. Section 1 permits the court to uphold statutes which breaches the equality provisions of the Charter if the legislation is 'demonstrably justified in a free and democratic society'. M v H took a very different view of this provision.

[26] M v H concerned the Family Law Act, RSO, 1990. The case is in the process of being appealed.

[27] Both Andrews and Re K utilised the expert evidence of sociologist Margrit Eichler regarding functional family relationships. Didi Herman discusses the role of sociological evidence in Andrews in her article supra note 9, and other Canadian litigation prior to Re K in her book, supra note 5.

[28] This criticism was certainly levelled at the mothers in Thomas S v Robin Y in 1993, when they fought a gay sperm donor's claim to paternity and access. See Katherine Arnup and Susan Boyd, 'Familial Disputes? Sperm Donors, Lesbian Mothers and Legal Parenthood' in Didi Herman and Carl Stychin (eds), Legal Inversions: Lesbians, Gay Men, and the Politics of Law, Temple University Press, Philadelphia, 1995.

[29] Andrews et al v Minister of Health for Ontario (1988) 49 DLR (4th) 584.

[30] See eg Herman, supra note 9, Susan Boyd, 'Expanding the "Family" in Family Law: Recent Ontario Proposals on Same Sex Relationships' (1994) 7 Canadian Journal of Women and the Law 545, Gwen Brodsky, 'Out of the Closet and Into a Wedding Dress? Struggles for Lesbian and Gay Legal Equality' (1994) 7 Canadian Journal of Women and the Law 523, 'Paradise Lost, Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian and Gay Engagement to Law' (1993) 31 Osgoode Hall Law Journal 589.

[31] Consider for example the different approaches taken to law reform proposals to define and recognise lesbian and gay relationships. In Canada, see Boyd, supra note 30. In Australia peak lesbian and gay groups were divided in their support for the Sexuality Discrimination Bill 1995 (Cth) which proposes recognition of same sex couples as de facto couples in federal (but not state) legislation.

[32] [1995] AATA 130; (1995) 21 AAR 378.

[33] There were two arguments. The first was that the word 'as' in the sentence 'as that other person's husband or wife' should be as including analogous situations. Effectively this was a functional family claim wrapped in the guise of statutory interpretation, and was swiftly rejected as it would 'confound all principles of certainty [in statutory interpretation] and defeat the purpose of much legislation' (at 390).

[34] The tribunal rather thought the dictionary was behind the times on these issues, as it didn't include heterosexual de factos in its definition - which makes you wonder why they relied on it in the first place.

[35] Superannuation Act 1976 (Cth)

[36] The tribunal went to some lengths to claims that old gender based stereotypes are breaking down in straight relationships, then went on to add that, 'a great many people in homosexual relationships, be they male or female, would find it deeply offensive to be described in these terms' at 386. Well, they got that part right all right.

[37] In NSW lesbians and gays can make a claim upon a deceased lover's estate under the Family Provision Act 1982 if they had lived with the deceased at some stage and been dependent upon him or her. See eg Ball v Newey (1988) 13 NSWLR 489, Benney v Jones (1991) 23 NSWLR 559, and McKenzie v Badderly (1991) (Unreported, NSW CA, 3 December 1991).

[38] This was Young J's view at first instance in Ball v Newey, overturned on appeal (1988) 13 NSWLR 489.

[39] Ball v Newey (1988) 13 NSWLR 489. Although emotional dependence has never been considered sufficient, and Young J has always been quick to find that relationships in question were not gay and that they did not contain elements of financial dependence: see Benney v Jones (1991) 23 NSWLR 559, especially Preistley JA. In McKenzie v Badderly (1991) (Unreported, NSW CA, 3 December 1991) the majority held that $20 per week income (earned through the property of the deceased) for the pensioner applicant was sufficient to make him dependent on the deceased. Nevertheless, it should be noted that on rehearing Young J held against the applicant, including costs: see McKenzie v Badderly (1994) (Unreported, NSW SC, 26 October 1994, Young J). The principle has been more generously, and less homophobically applied in NSW in other cases: see eg Gray v Public Trustee (1993) (Unreported, NSW SC, 25 November 1993, Master McLaughlin).

[40] Hope & Anor v NIB Health Funds Ltd (1995) 8 ANZ Insurance Cases 61-269.

[41] And doubted, but did not overrule the earlier NSW EEO case Wilson & Anor v Quantas Airways (1985) EOC 92-141 which found that exclusion of same sex couples from couple based schemes was not marital status discrimination nor discrimination on the basis of homosexuality.

[42] Supra note 30, at 548.

[43] 'An Implied Promise to Parent: Lesbian Families, Litigation and W v G (1996) 20 Fam LR 49' 10 Australian Journal of Family Law forthcoming.

[44] 'Taxing Times for Lesbians and Gay Men: Equality at What Cost?' (1994) 17 Dalhousie Law Journal 534.

[45] ibid, at 554 and 555. Moreover, because claiming spousal benefits involves outing not only yourself but also your partner, Young notes that the existence of such benefits does not in any way ensure access to them.