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Saturday, October 16, 2010

Sydney's new adoption law advances rights for gay parents

 The gay adoption legislation in NSW is an historic advance.
WHAT does it mean to make history? While much of Australia was preoccupied with forming a minority federal government, history of another kind was being made in NSW. The passing of the Adoption Amendment (Same-Sex Couples) Bill ushered in an end to direct legislative discrimination against same-sex couples in NSW.
While historic, the bill's content was modest. It merely provided definitional changes of terms such as ''couple'', ''de facto partner'' and ''step-parent'' – making them gender neutral. Legal technicalities of the amendments aside, the legislation's effect is to ensure that parenting ability, not gender, is the determinative factor in deciding the best place to raise children.
No one has the right to adopt. Children do, however, have the right to have legally recognized parents, regardless of their parent's sexuality or gender identity. As a consequence of this reform, NSW has significantly advanced social justice for gay men, lesbians and their families.
The path to legislative equality for sexual minorities in NSW has not been an easy one.
It has been a process fraught with insecurity and uncertainty. Until 1984, consenting sexual activity between men was not simply frowned upon - it was criminal.
While today in NSW (and indeed most of Australia) the idea of criminal sanctions for same-sex relationships seem ludicrous, the resistance towards relationship and family recognition remains.
Being non-heterosexual still challenges our social imaginations about what we consider to be ''normal''. Normalcy can be troubling when it is used parochially as a political strategy to refuse acknowledging anything that may be different. When it comes to people of diverse sexual orientations, the politics of the ''normal'' can come at the expense of recognizing the value of different forms of intimacy and kinship that exist outside the heterosexual bonds of matrimony.

So where does the story of civil rights for gay men and lesbians in NSW begin?
In 1999, the state passed its Property (Relationships) Legislative Amendment Act; recognizing same-sex de facto couples in numerous pieces of legislation. The recognition ensured entitlements for property division upon relationship breakdown, accessing a partner's worker's compensation and being able to provide a victim impact statement as a family member.
In pushing for equality, removing the unequal age of consent was crucial for young people, who wished to avoid criminal sanctions for their relationships. After several unsuccessful attempts, legislation was amended in 2003 to allow individuals to consent to sexual activity regardless of their partner's sex.
If recognition as a de facto couple seems relatively uncontroversial to accept, why did it take more than a decade longer to acknowledge the existence of same-sex families?
What the gradual reform process indicates is that the law is no stranger in shaping social messaging about what counts as a family – especially when it is seen as the foundational unit of society.
For years, same-sex couples had been caring for children in crisis as foster carers. Many children were also being raised by the same-sex partner of their biological parent. Yet, these families were being denied legal recognition for failing to conform to the ideal norm of the nuclear family – a family with a mum and a dad.
The NSW parliament, in a groundbreaking move in 2008, made a radical shift away from a legal tradition that had defined ''parents'' as always being of opposite-sex. Following Commonwealth changes to the Family Law Act, the NSW government introduced legislation to amend its  Status of Children Act to recognize the female de-facto partner of a birth mother as a co-parent.
Effectively, same-sex female de facto couples who conceive via assisted reproductive technology could be listed on the birth certificate as parents, with no need to specify a (donor) father. Changes to parentage legislation were also complemented by definitional changes of ''marital or domestic status'' in anti-discrimination laws to protect same-sex de facto partners in the same way as married spouses.
It seems that 2010 is shaping up to be the year of the modern family. In May, NSW introduced a scheme to allow same-sex couples to register their relationship. While no substitute for marriage, the register provided an administrative mechanism for couples to access a range of state and commonwealth rights and entitlements as a couple.
Now that the Adoption Amendment (Same-Sex Couples) Bill will pass into law, same-sex couples will also be eligible to adopt children in NSW. Discrimination, however, does not end with legislative inequality – it must also involve changing our cultural attitudes.
In this sense, it is important to recognize that the law plays an instrumental role not only in delineating rights and entitlements, but also signifying to society what is legitimate or worthwhile. As a result of the recent changes to adoption, we will hopefully see a shift in social, as well as legal, stigmas attached to same-sex families.
NSW has finally made a claim to history by eliminating the last direct piece of legislative discrimination on the basis of sexuality, to protect and acknowledge the many same-sex families in this state.
With all this historic change, all that remains to be asked: will the rest of Australia follow suit?



  1. Hello,
    Sexual health requires a positive and respectful approach to sexuality and sexual relationships, as well as the possibility of having pleasurable and safe sexual experiences, free of coercion, discrimination and violence. For sexual health to be attained and maintained, the sexual rights of all persons must be respected, protected and fulfilled.

  2. Hello,
    Nice post i like it
    Sexual problems include impaired sexual functioning, impaired emotions, compulsive sexual behaviour(s), gender identity conflicts, sexual violence and victimisation, sexually transmitted infections, problems with reproduction and any sexual problems secondary to other medical/health conditions.