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Gay rights and children's rights
Published August 25, 2005
Critics of gay rights insist that in opposing same-sex marriage they are trying to protect children. But when the California Supreme Court said this week that lesbian partners have the same responsibilities to their children as other parents, conservatives took a different line: If what's good for the kids is also good for gay rights, it must be bad.
The court ruled in three different cases, and in each of them, as The Los Angeles Times put it, "delivered a ruling that guaranteed that children born to gay couples have two legally recognized parents." Those decisions elicited blistering comments from some conservative groups, which see them as another step down the road to same-sex marriage.
Mathew Staver of Liberty Counsel, a law firm that filed a brief on the losing side, said the court's action was "nonsense" and "has undermined the family." Said Paul Cameron, head of the Family Research Institute, "This is insanity writ large, and judicial arrogance writ large as well."
In fact, this is not an instance of judges going beyond their rightful role to alter time-honored social arrangements. It's a case of judges applying established law to novel problems created by changing mores. Far from being crazy, the court's action was a sober effort to give priority to what should be our central concern: the best interests of the children.
The most significant decision involved Elisa and Emily, two lesbians who began a relationship in 1993. After moving in together, they decided to undergo artificial insemination, which each did with the other present. Elisa bore a son, and Emily gave birth to twins, a boy and a girl.
The couple proceeded to raise all three kids as their own. Each of the women nursed all three babies, and they gave them the same last name (their own last names combined with a hyphen). Neither went to the trouble of legally adopting the other's offspring, and they didn't register as domestic partners when California created a registry in 1999.
They separated that year, and eventually Elisa refused to pay child support for the twins. A lower court ruled that because she was not a natural parent of the children, they were not her responsibility. But the Supreme Court overruled that decision, based on a conclusion guaranteed to infuriate opponents of gay rights: "We perceive no reason why both parents of a child cannot be women."
That view may sound like an affront to nature. But nature is only one factor in the making of families. Suppose a man were to move in with a woman, consent to her artificial insemination, be present at the birth of the resulting baby and raise the child as his own. In that case, would anyone say he has no paternal rights or duties?
Of course not. One critical element of artificial insemination is that the natural father is not treated as the father for any purpose. The father, in such cases, is the man who serves in the social function of father rather than the one who performs the biological function of providing sperm.
The court found that Elisa may not have been the only mother, but she was a mother. It quoted approvingly from a brief submitted by the California State Association of Counties: "A person who actively participates in bringing children into the world, takes the children into her home and holds them out as her own, and receives and enjoys the benefits of parenthood, should be responsible for the support of those children--regardless of her gender or sexual orientation."
Groups rejecting gay rights argue that kids do best in stable homes with married heterosexual parents. But even if that is true, it's no excuse for shortchanging children in homes headed by cohabiting homosexual partners. It's not illegal for lesbians to set up housekeeping, bear children and raise children in their own version of a family any more than it is illegal for straight couples to do so.
Given that some homosexual couples are going to serve as parents, legislatures have a duty to write laws that cover such modern conventions. And courts are obligated to apply existing laws, which may not have foreseen all contingencies, to protect vulnerable youngsters from falling through the cracks. That's all the California Supreme Court did here.
Some conservatives accuse the justices of defying logic, to the detriment of children, for the sake of an ideological mission. Well, look who's talking.
Steve Chapman is a member of the Tribune's editorial board. E-mail: email@example.com
Seattle Post-Intelligencer Editorial: Family Law: The best interest
（声）同性愛の議員誕生にエール (朝日・東京本社版 2005/08/23朝刊オピニオン面)
著述業 石川大我（東京都世田谷区 ３１歳）
韓国の出生率低下１．１６に――昨年、世界最低の水準、女性の晩婚化進む (日本経済 2005/08/25朝刊)
2005年08月24日 格林尼治標準時間19:00北京時間 03:00發表
港法院：禁男同性戀性交違反基本法 - BBC
申訴人William Roy Leung認為，這種規定等同阻礙發展親密關係，違反香港的《基本法》和人權法，因此向高等法院提出申訴。
香港司法覆核：少年同志性愛解禁 (多維新聞網 2005/08/24)
申請人 William Leung今年踏入二十一歲，其申請指九一年生效的《刑事罪行條例》中118條C、 F（ 2）（ a）、 H及J（ 2）（ a）條違反人權法。除118C條外，法官昨指其餘三條條文歧視男同性戀者，不合乎人權法及基本法，並指政府作出讓步。
法官夏正民指該四條條例貶低男同性戀者，將男同性戀者標籤為不正常。代表政府的資深大律師麥高義曾指，法例定立原意是要保障未成熟青年免於一時好奇參與同性戀行為，以及免受因肛交而染上愛滋病的危險。 惟法官認為定立條文目的只是阻止脆弱的青年走向主流大眾不認同的生活方式，並不是保障他們在性方面免受剝削或免受疾病傷害。法官認為現今判那些青年入獄，並不是阻止他們走向墮落的正確回應，法官亦質疑同樣法例何以不套用在女性身上。 否定唯一能表達性方式
申請人的代表資深大律師戴啟思曾指，肛交為男同性戀者惟一性交形式。法官指有關條文規定二十一歲以下的男同性戀情侶不能進行親密舉動或肛交，但異性戀或女同性戀者則規定年齡在十六歲以上便可進行有關性行為，即使有第三者在場也不違法，惟男同性戀者若有第三者在場下有親密舉動便屬違法，法官認為這屬歧視，並指條文否定了小眾唯一能表達性的方式，惟主流群眾則有權以自己喜歡的方式表達性，亦屬於歧視。 英國指降年齡效果正面 法官亦引述英國一份醫學報告指，將限制年齡降至十六歲，不會影響男性參與同性戀行為，而根據英國法庭判詞指，降低年齡限制至十六歲可帶來正面效果。
香港高等法院裁決一項針對同性戀的法律違反《基本法》和《人權法》2005.08.24 - 自由亞洲電臺
Thursday, August 25, 2005
Family Law: The best interest
SEATTLE POST-INTELLIGENCER EDITORIAL BOARD
The California Supreme Court unanimously decided on Monday that gay and lesbian couples raising children are lawful parents.
We hope that the Washington Supreme Court applies the same standards to a similar case before it. In Sue Ellen Carvin v. Page Britain, the couple had a daughter via artificial insemination. After they split up six years later, one parent is denying the other any contact with the child. Things could get messy: The 2000 Census shows that more than a million children are being raised by same-sex couples in the United States. In this state, same-sex couples have the right to adopt children.
"The laws are geared to the best interest of the child," said Roger Winters, president of the Legal Marriage Alliance. In the absence of adoption (which is not necessary for straight couples), children are left unprotected. "That children can suffer, and people with reasonable obligations can ignore them are perhaps unintended consequences." The big deal here is that never before had the courts applied the rules and principles of straight families to same-sex families, said Jenny Pizer, senior legal counsel at Lambda Legal, a national organization fighting for recognition of civil rights for gays, lesbians, bisexuals and transgendered people. The books are still loaded with discriminatory laws.
"California case law states that a child cannot have two mothers, leaving the non-biological parent out in the cold," said Pizer. This ruling is a recognition that the same-sex parents constitute real families, and that their children have the same needs of those raised in straight families.
California court affirms gay parenting - Christian Science Monitor
USA > Society & Culture
from the August 25, 2005 edition
California court affirms gay parenting
Ruling sets responsibilities, rights of homosexual parents but spurs backlash by same-sex marriage opponents.
By Amanda Paulson and Daniel B. Wood | Staff writers of The Christian Science Monitor
CHICAGO AND LOS ANGELES – Defining parenthood is far less simple than it used to be.
That fact was made abundantly clear by the California Supreme Court's ruling this week in three cases involving reproductive technology and lesbian relationships.
In California, the landmark decisions - which granted full parenthood to former partners despite the absence of legal adoption or, in two of the cases, a biological connection - have made the terrain a little clearer and solidified the direction in which many courts are moving: conferring the rights and responsibilities of parenthood based on intent and psychology rather than biology, adoption, or marriage.
But as the decisions have been lauded and decried across the country, they've also underlined the vastly different patchwork of how states handle the often-murky relationships at the nexus of reproductive technology and shifting family structures.
"I regard these three decisions as unprecedented because they go so far toward protecting children without regard to marital status or biology or gender of the parent, but at the same time they're not unique," says Joan Hollinger, an adoption and parentage law expert at the University of California in Berkeley. "They're part of the quest on the part of so many states to figure out how to define parentage when sex is separated from reproduction."
At least nine states officially allow second-parent adoption - often sought by gay couples - and several confer visitation rights or have ordered child support from nonbiological or nonadoptive parents.
But the California cases are the first in which such individuals have been declared full legal parents, with the rights of, say, inheritance or social-security benefits.
The rulings also affect heterosexual couples who use reproductive technology but this week, much of the reaction has focused on the court's statement that "We perceive no reason why both parents of a child cannot be women."
"Same-sex couples are now able to procreate and have children, and the law has to catch up with that reality," says Shannon Minter, legal director of the National Center for Lesbian Rights. Like many gay-rights advocates, he applauded the decision for recognizing parental bonds outside of gender or marital status.
The three decisions, while all involving reproductive technology, addressed very different situations. In one, a woman was ordered to pay child support for the biological children of her former lesbian partner, who has relied on welfare since the two split up.
In the second, a woman who years earlier had gotten a court order - and birth certificate - declaring both herself and her partner to be parents, was told she could not terminate her former partner's rights.
Perhaps the most unusual case involved a couple in which one woman donated an egg to her partner, who bore the twin children. At the time of donation the woman, whose initials are K. M., signed a form giving up parental rights, although both women cared for the twins for six years.
Two dissenting judges in that opinion noted that ignoring the release form might hold implications for other sperm and egg donors who sign waivers believing they've relinquished their obligations. But the majority felt that the intent and act of par- enting were sufficient to grant K.M. the rights she sought.
"As the only existing precedent on the issues that it covers, it will be a significant point of reference" for other states, notes Jill Hersh, K.M.'s lawyer.
While these three rulings apply only in California, the state is often at the forefront of reproductive-technology decisions, and may give guidance to other states that increasingly are faced with complex family structures.
Technology outpaces law
"I tell my students I couldn't invent the kind of family situations in which people actually live," says Nancy Polikoff, a professor at the American University Law School. "And it's the job of the courts to resolve these disputes with the law they have at their disposal."
Such law, formed decades before sperm donors, surrogate parents, and same-sex parents were common concepts, is often hardly adequate. But increasingly, say experts, courts are ruling based on the individuals' intent to act as parents and principles like parenthood by "estoppel" - in which an acting parent-child relationship creates legal parenthood.
Resolving conflicting state laws can be tricky, however. In one much-publicized case, a couple who had a civil union in Vermont and had a daughter through artificial insemination is battling in courts in both Vermont and Virginia, where the biological mother now lives with her child.
A Vermont court awarded the former partner visitation rights, but the other mother is now hoping to use Virginia's Affirmation of Marriage Act - which declares that the state does not recognize civil unions - to declare her the sole parent.
"It's an example of a situation where the fact that different states have different laws can cause a problem," Professor Polikoff says.
Critics of the California rulings warned of a "slippery slope" in which biology is ignored and the number of parents a child has keeps growing.
"This blows apart the definition of family more than ever," says Randy Thomasson, president of the Campaign for Children and Families in California. "It's about the courts pushing social engineering on the unsuspecting public."
Meanwhile, California opponents of gay marriage are pressing to put constitutional amendments on the June 2006 ballot that aims to push back currently recognized domestic partnership benefits and ban gay marriage.
But even as advocates on both sides debate repercussions of the court's rulings, K.M. is thrilled just knowing that she'll soon be reunited with her twin daughters, who have been living in Massachusetts with their other mother for several years.
"I am just like over the moon," she says. "I woke up today for the first time in four years and looked at the photos of my daughters by the bed and could do it without any pain or sadness.... I hope this means that all children and families will be protected from here out."
A church's struggle over gay marriage 07/01/05
Catholic leaders in Spain join gay-marriage protests 06/20/05
Tug of war intensifies on gay-marriage issue 05/05/05
SJ Mercury News Editorial: Children are the winners in state high court ruling
Fact or fiction: Sex-change funding
25.08.05 - New Zealand Herald
An occasional election feature highlighting claims made on the campaign trail.
New Zealand First leader Winston Peters yesterday tried to trade on a story about an elderly Taranaki transsexual's bid for sex-change surgery.
"Peters slams $30,000 state-funded sex-change operation," his media release was headlined.
The release said Mr Peters was outraged that 73-year-old transsexual Vicki Harvey, a man who considers himself a woman, was able to secure the state-paid operation when thousands of New Zealanders who needed urgent medical care were on waiting lists or were suffering from debilitating illnesses.
Fact: Vicki Harvey has not yet been assessed for a taxpayer-funded sex-change operation.
The story in Saturday's Taranaki Daily News, which kicked off the debate, said the Ministry of Health "will pay for the operation".
But a spokesman for Health Minister Annette King last night told the Herald that no decision had been made on whether Vicki Harvey qualified for a state-paid sex-change. A strict psychiatric assessment was needed first.
"This guy hasn't been assessed yet."
The Daily News' website had quoted Ms King saying virtually the same thing on Monday.
New Zealand: Outrage as transsexual seeks Govt-funded op - stuff.co.nz
Sodomy is no longer criminal, court rules
August 25, 2005 - The Standard
In a landmark decision, the High Court ruled Wednesday that current laws on the age of consent discriminate against homosexuals.
Justice Michael Hartmann acted in favor of William Leung, 20, who launched a Judicial Review against the government for what he considered unfair laws against gays.
Hartmann said existing laws were ``demeaning of gay men,'' stereotype them as ``deviant,'' and interfere with their private lives on the assumption that homosexuality was ``morally reprehensible.''
Civil rights groups described the ruling as ``a historical moment for the Hong Kong gay community.'' Hartmann declared that four sections of the law covering homosexual acts, on the books since 1991, were unconstitutional.
The Basic Law ``must allow for a remedy in appropriate circumstances to those who say that their fundamental rights have been undermined by primary legislation,'' he ruled.
Hartmann said that Leung, should not have to face prosecution and life imprisonment before he can use the courts to challenge the constitutionality of laws that infringe upon his rights.
Previously, sexual intimacy between two men below the age of 21 was a criminal offence even though sexual intimacy between heterosexuals and lesbians is allowed after the age of 16.
Group sex between gay men, even though in private and conducted by consenting adults, was also criminal, while such activities between heterosexuals and lesbians above 16 was allowed.
An act of sodomy, submitted as the natural sexual expression of gay men, below the age of 21 was a criminal offence with possible life imprisonment if it was conducted between two men.
During the trial in July, the government conceded that three of the four sections were in breach of the Bill of Rights and Article 25 of the Basic Law safeguarding equal rights because they unfairly distinguished between homosexuals and heterosexuals.
However, it maintained that the criminalization of sodomy between men under the age of 21 was not in breach of the constitution since sodomy between a man and a woman under 21 was equally a criminal offence.
The judge added that the proposal not to make women criminally liable ``demonstrates a reliance on the stereotyped view that the female is per se submissive, the man always sexually the active partner.''
The reason put forward by the government to make both partners of a homosexual act of sodomy below the age of 21 was the ``potential for blackmail.''
Citing an Equal Opportunities report to Legco in 2001, Hartmann ruled this attitude exemplified ``stereotypical assumptions made of the homosexual community.''
Hartmann also declared that criminalizing sodomy for homosexuals below the age of 21 was indirectly discriminatory of gay men since it deprives them of their natural sexual expression.
``Put plainly, heterosexual couples may have sexual intercourse under the age of 21, homosexual couples may not,'' he said.
Leung said that previously, he could not form physical homosexual relationships because of this ``criminal threat above my'' head.
However, he said he was too young to think about gay marriage.
Article 35 of the Basic Law states that ``all Hong Kong residents shall be equal before the law.''
Law Yuk-lai, director of the Hong Kong Human Rights Monitor, said the ruling was long overdue. ``The Hong Kong government should have reviewed its legislation in 1994 when the United Nations Human Rights Committee declared that discrimination on the basis of sexual orientation was a violation of human rights,'' Law said.
Liz Whitelam, of Amnesty International, congratulated those who brought the case .
But Choi Chi-sum, general secretary of the Hong Kong Alliance for Family, a conservative Christian and family values group, described the decision as regrettable.
``This is about anal intercourse, not homosexuality,'' he said. ``Anal sex is a high risk activity and participants are much more likely to contact sexually transmitted diseases,'' Choi added.
Choi warned that amending the law to make gay sex legal for those between the ages of 16 and 21 would encourage the activity.
Pardons urged for jailed gays
August 25, 2005 - The Standard
The High court's ruling on gay discrimination not only sparked a legal challenge, but also demands for erasing past criminal records for consensual sex between men under 21.
``It is good news. After all these years, finally we see no difference between heterosexual and homosexual's legal age of consent,'' a spokesman for a homosexual rights group said in a radio program.
Paul Lui, spokesman for the Tongzhi Community Joint Meeting, a gay and lesbian pressure group, said the group will ask the government to erase criminal records of 63 homosexuals convicted of sodomy under 21 between 1998 and 2003.
Under Section 118 of the crimes ordinance, such men face life imprisonment. They can also be sentenced to a two-year prison term if they commit ``acts of gross indecency.'' But this ordinance does not apply to heterosexuals and lesbians who are free to have sex from the age of 16.\ The group also plans a public campaign calling for an anti-discrimination law.
Lui said yesterday's ruling also renewed calls for equal rights for homosexual and heterosexual marriage.
Hong Kong University law professor Eric Cheung admitted the anti-discrimination law will become a hot issue after the case. However, same-sex marriage may still have a long way to go because it concerns many moral judgments, he said.
Same-sex marriage is legal only in Belgium, Canada, Netherlands and Spain. A Civil Partnership Act will come into force in 5 December 2005. The act creates a new legal relationship of ``civil partnership,'' which two people of the same-sex can form by signing a registration document . It also provides same-sex couples who form a civil partnership with parity in a wide range of legal matters as with married heterosexual couples.
Hong Kong strikes down gay ban
Wednesday 24 August, 2005 12:49
A judge in Hong Kong’s High court has ruled that a ban on gay sex between men under 21 is unconstitutional and must be amended.
The former British colony, handed back to Chinese rule in 1997, currently allows heterosexual and lesbian sex from 16, but gay men can be imprisoned for life if caught having sex before 21.
Judge Michael Hartmann ruled that the ban was discriminatory against gay men and should be dropped by the government, after a 20-year-old man challenged the law.
The gay man said he should be allowed to have sex with his partner legally before he turns 21.
So far, the government has not said whether it will drop the ban, although it has said it was “study” the decision, the BBC reports.
It says the judge decided the legislation loophole was “demeaning” to gay men.
This is not the first time Hong Kong has faced criticism for its stance on gay issues.
In May this year, the Human Rights Monitor said the Chinese territory had a “poor standing” on gay issues.
However, a protest was held in Hong Kong in the first International Day Against Homophobia earlier this year, with demonstrators calling for more recognition and rights.
Last Updated: Wednesday, 24 August 2005, 09:41 GMT 10:41 UK
HK gay sex rules 'discriminatory' - BBC
A Hong Kong judge has ruled that laws prohibiting gay sex by men under the age of 21 are unconstitutional.
The High Court judge, Michael Hartmann, said the current laws discriminated on the basis of sexual orientation.
A 20-year-old gay man, William Roy Leung, had challenged Hong Kong's existing laws on the issue.
They allow sex between heterosexuals and lesbians from the age of 16, but anyone under the age of 21 who engages in sodomy could face life in prison.
The government says it will study the judgement.
Mr Hartmann said the current laws were "demeaning of gay men who are, through the legislation, stereotyped as deviant".
The laws prohibit "gross indecency" or sexual intimacy between men if one or both are younger than 21.
Gay rights activists welcomed the ruling, saying that 63 men have been arrested under the laws in the past five years.
They said that the law was now unenforceable.
"It is a landmark case and a long overdue judgement," said activist Roddy Shaw.
"It's the first time that sexual orientation has been upheld as a protected ground against discrimination in a Hong Kong court," he was quoted as saying by the Associated Press.
Hong Kong is now holding consultations on the legislation. The territory's security bureau said it was studying the ruling.
Gay Hong Kong Man Wins Legal Battle
Wednesday August 24, 2005 11:31 PM
By SYLVIA HUI
Associated Press Writer
HONG KONG (AP) - A judge struck down Hong Kong's sodomy laws on Wednesday, siding with a 20-year-old homosexual man who challenged the measures - including one that demanded a life sentence for gay sex when one or both men are younger than 21.
As he left the High Court, William Roy Leung said his legal victory means that ``I can finally have a loving relationship without being scared of (being) thrown into jail for life imprisonment.''
The judge ruled the anti-gay laws ``discriminate on the basis of sexual orientation'' and ``are demeaning of gay men who are, through the legislation, stereotyped as deviant.''
In the ruling, High Court Judge Michael Hartmann also said that the laws are a ``grave and arbitrary interference with the right of gay men to self-autonomy in the most intimate aspects of their private lives.''
The laws prohibited ``gross indecency'' or sexual intimacy between men if one or both are under 21. But heterosexual and lesbian couples who are 16 or older can legally have such relations.
Under the laws, gay men who engage in consensual sodomy when either is under 21 face life imprisonment.
``It is a landmark case and a long overdue judgment,'' said Roddy Shaw, a gay activist. ``It's the first time that sexual orientation has been upheld as a protected ground against discrimination in a Hong Kong court.''
Shaw said police have arrested 65 men under gay sex laws in the past five years, and 26 were convicted.
The laws have been on the books for 14 years - well before the former British colony returned to Chinese rule in 1997.
Some Christian groups condemned Wednesday's decision, saying it would encourage more young people to try sodomy.
Homosexuals are treated differently throughout Asia. Countries like the Philippines and Thailand tend to be more tolerant, while ethnic Chinese cultures like Hong Kong are less open.
In Europe, an EU charter of rights adopted in 2000 protects against discrimination, including sexual orientation, in the 25 European Union nations. Spain, the Netherlands and Belgium also legally recognize same-sex marriage.
In June 2003, the U.S. Supreme Court ruled that sodomy laws were unconstitutional, striking down a Texas law that made homosexual sex a crime. The ruling invalidated sodomy laws in 13 states.
Hong Kong's government, which said Wednesday it was reviewing the decision, can still appeal Wednesday's ruling.
But Law Yuk-kai of the Hong Kong Human Rights Monitor said the decision meant the government no longer had a legal basis for enforcing the law.
``Once a judge strikes down a law as unconstitutional, the government has lost its legal authority to enforce the law, even though the law is still on the books,'' Law said.
The ruling came as Hong Kong debates whether a law prohibiting discrimination against homosexuals is needed. There has been heated arguments on call-in radio shows, and religious groups have been taking out large newspaper ads urging the public not to support such legislation.
The government has so far provided few details about what an anti-discrimination bill would say, but Shaw said he thought Wednesday's ruling would help advance the bill.
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性はいま ジェンダーフリー 日本女性学会幹事 伊田広行さんに聞く (東京 2005/08/25朝刊)