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:

  • 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

  • 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 statistics1

  • 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

  • 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

  • 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 amendments7 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

  • 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 202115 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

  • 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.

  • 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

  • “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.

  • 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.

  • 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

  • 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

  • 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

  • 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

  • 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:

  • 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.

  • 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

  • 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

  • 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

  • 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

  • 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.

  • 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:

  • 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.

  • 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

  • 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.

  • 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.

  • 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:

  • Feel uncomfortable, resentful or offended by what occurs in court.

  • Feel that an injustice has occurred.

  • In some cases be treated unfairly and/or unjustly.

    These problems are likely to be compounded if the person also happens to be Indigenous, from an ethnic or migrant background, a young person, female, transgender, a person with a disability, or if they practise a particular religion, or are representing themselves — see the relevant other Section(s).

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.

The boxed areas provide the practical guidance.

8.5 Practical considerations

8.5.1 Appearance and behaviour

Lesbians, gay men and bisexuals must be accorded the same dignity and respect as anyone else.

Points to consider:

  • Be sensitive to the fact that the style of dress (or haircut, make up or lack of make up) of a particular lesbian, gay man or bisexual may or may not accord with the general community’s view of how someone of their gender should dress or look. No discomfort should be shown with any style that is more common in someone of the opposite sex, or with any style that might be seen as the stereotypical presentation of someone who is lesbian or gay (for example, excessively camp, femme or feminine or excessively butch or masculine).

  • Be sensitive to the fact that the behaviour traits of a particular lesbian, gay man or bisexual may or may not accord with the general community’s views about how someone of their gender should behave. Again, no discomfort should be shown with any behaviour that is more common in someone of the opposite sex’s gender, or with any behaviour that might be seen as the stereotypical presentation of someone who is lesbian or gay (for example, excessively camp, femme or feminine or excessively butch or masculine).

  • Apologise if an initial mistake has been made about the gender of a particular gay man, lesbian or bisexual.

  • As prescribed by law, intervene if it appears that any cross-examination is unfairly or inappropriately alluding to any particular allegedly sexuality determined difference in appearance or behaviour.51

8.5.2 Language and terminology

Points to consider:

  • Use sexuality descriptors only when relevant to the matter before the court, and then use only those that are both accurate and acceptable to the particular lesbian, gay man or bisexual. For example, it is generally best to use “lesbian”, “gay man”, “homosexual” or “homosexual man” as opposed to “gay lady/woman”, or “gay”. But it is always best to check with the particular person first — see also 8.2.2 above.

  • Use the word “partner” to describe the person a lesbian, gay man or bisexual is (or was) in a relationship with, or “lover” to describe the person they are (or were) having a short-term affair with.

  • Do not use any form of discriminatory or discriminatory-sounding language — for example, do not state or imply, or allow others to state or imply, that all gay men are sexually promiscuous, or all lesbians hate men.52

  • Treat everyone as an individual, and do not make statements that imply that all those who are lesbian, gay male or bisexual are the same, or likely to act in the same way. Never assume or imply that the way you think the majority of lesbians, gay men or bisexuals behave or think is the standard by which any individual member of that group should be judged.

8.5.3 The impact of a person’s lesbianism, homosexuality or bisexuality on any behaviour relevant to the matter(s) before the court

Points to consider:

  • Be sensitive to the fact that evasiveness about personal life and activities may simply be a reluctance to “come out” in court. You may need to intervene if any such questioning is unnecessary or irrelevant, or consider whether it would be best to close the court.

  • Do not let stereotyped views about lesbianism, homosexuality or bisexuality unfairly influence your (or others’ assessment). For example, you may need to:

    • As prescribed by law, intervene if any of the common misconceptions listed in 8.2.1 appear to be unfairly behind any questioning.53

    • Be mindful of the fact that lesbians, gay men and bisexuals can be victims of domestic and intimate partner violence, in just the same way that heterosexuals can. A national demographic and health and wellbeing survey found significant levels of intimate partner violence in LGBTIQ communities.54 Note that “Battered Spouse Syndrome “has successfully been relied upon by a gay man who killed his partner of 14 years to reduce a charge of murder to manslaughter, and as a mitigating factor in sentencing”.55

    • Be mindful of the widespread criticism within gay male and lesbian communities and general controversy about the use of the “homosexual advance defence” and “homosexual panic defence” — see 8.1 above under “Verbal abuse, intimidation and violence.” However, this defence has not been available in NSW since 13 June 2014. 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.56

    • Assess a same sex relationship appropriately — while many are similar to heterosexual relationships, many are not, and each relationship (just like those of heterosexual couples), is different. For example, many gay male couples allow sexual activity outside the relationship. A same sex couple who live apart might have as strong a relationship as a conventional heterosexual couple. Financial and other such arrangements vary from couple to couple, just as they do with heterosexual couples. But (as indicated in 8.1 above) childcare activities and household duties tend to be more equitably shared than for heterosexual couples.

    • As prescribed by law, intervene if it appears that any cross-examination is unfairly or inappropriately alluding to any particular allegedly sexuality-determined difference.57

  • Has the fact that the person is lesbian, gay male or bisexual, together with any difficulties they might have experienced as a result, been an influencing factor in the matter(s) before the court? If so, where possible, you may need to take appropriate account of these influences. For example, you may need to decide whether the law allows you to take account of any such influences and, then, as necessary and at the appropriate time in the proceedings, so as to ensure that justice is done and seen to be done, explain why any such influences can/should be taken into account, or cannot/should not be taken into account. And, for example, you may need to explain this in any direction you make to the jury during the proceedings or before they retire, and in your decision-making or sentencing — see 8.5.4 and 8.5.5.

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.

In your final directions to the jury, you may need to remind them of any points in relation to these aspects that you alerted them to during the proceedings, and/or cover them for the first time now.

This should be done in line with the Criminal Trial Courts Bench Book58 or Local Courts Bench Book (as appropriate), and you should raise any such points with the parties’ legal representatives first.59

For example, you may need to provide specific guidance as follows:

  • That they must try to avoid making stereotyped or false assumptions – and what is meant by this. For example, you may need to specifically remind them that while the particular lesbian’s, gay man’s or bisexual’s behaviour and/or sexuality may not accord with behaviour they themselves regard as morally acceptable, they must “remember that this is a court of law and not a court of morals”.60 And then direct them to the specific questions they must decide. And finally explain that they must decide the matter(s) on the issues without prejudice to anyone.

  • On the other hand, that they may also need to assess the particular person’s evidence alongside what they have learned in court about the way in which lesbians, gay men and bisexuals often have to (or feel they have to) live their lives as opposed to the way in which they themselves might act. In doing this you may also need to provide guidance on any legal limitations that exist in relation to them taking full account of any of these matters. And you may also need to be more specific about the particular sexuality aspects that they need to pay attention to.

8.5.5 Sentencing, other decisions and judgment or decision writing — points to consider

Your sentencing, decision(s) and/or written judgment or decision must be fair and non-discriminatory to (and preferably be considered to be fair and non-discriminatory by), any lesbian, gay man or bisexual affected by or referred to in your sentencing, decision and/or written judgment or decision.61

Points to consider:

  • In order to ensure that any lesbian, gay man or bisexual referred to or specifically affected by your sentencing, decision(s) and/or written judgment or decision also considers it/them to be fair and nondiscriminatory, you may need to pay due consideration to (and indeed specifically allude to) any of the points raised in the rest of 8.5 (including the points made in the box in 8.5.4 immediately above) that are relevant to the particular case.

  • Whether to allow a victim impact statement to be read out in court.62

    A victim may be able to read out a prepared victim impact statement in court at any time after an offender has been convicted but cannot be read out after sentencing. You may allow a member of the immediate family or other representative of the victim to read out the whole or any part of the statement to the court.63

    Do not under-value the significance of a same sex relationship, or non-biological parent-to-child connection, in relation to such matters as compensation, property division and inheritance.

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:

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:
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.


1Unless 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.

2Australian 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.

3Australian 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.

4Schedule 1, Pts 1 and 2 of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced on 9 December 2017.

5Anti-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.

6Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, assent 28 June 2013.

7Second Reading Speech, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, Commonwealth, House of Representatives, Debates, 21 March 2013, p 2893.

8Australian 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.

9Australian 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.

10W 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.

11LGBTIQ+ Health Australia, “The 2021 update”, 13 May 2021 at https://www.lgbtiqhealth.org.au/statistics/, accessed 30 November 2021.

13NSW 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.

14ibid, p 51.

15NSW 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.

16above, n 13.

17NSW 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.

18Although 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.

19The 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).

20National 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.

21Pitts, M et al (2006) Private lives: A report on the wellbeing of GLBTI Australians, Latrobe University, Melbourne.

22Nicholas 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.

24Suicide Prevention Australia Position Statement, “Suicide and self-harm among gay, lesbian, bisexual and transgender communities”, 2009, p 6.

25K 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.

26A 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.

27There 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.

28See for example, Anti-Discrimination Board of NSW, Skool’s out.

29Formative evaluation of the NSW Proud Schools Pilot: Stage 2, Final Report, Department of Education and Communities, 2014.

30above, n 25, p V.

31Australian 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.

32See 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.

33R Graycar and J Morgan, The Hidden Gender of Law, 2nd edn, 2002, The Federation Press, Leichhardt, NSW, p 89.

34ibid.

35above, n 13, p 52.

36People 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.

37MR 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.

38B Adair, “Child Sexual Assault” (1996) 8(5) Judicial Officers’ Bulletin 33 at 33.

39J 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.

40Judicial Studies Board, Equal Treatment Bench Book, see n 2, Section 7.1.

41Supreme Court of Queensland, Equal Treatment Benchbook, see n 8, p 250.

42Beyond blue, Statistics, at https://www.beyondblue.org.au/media/statistics, accessed 30 November 2021.

43ibid.

44Crimes Act 1900 (NSW), s 66C.

45Schedule 1, Pts 1 and 2 of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced on 9 December 2017.

46Schedule 1, Pt 1, cl 58, ibid.

47Family Law Act 1975 (Cth), s 4AA(2).

48Births, 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.

49Section 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.

50H Robert and F Kelly, The legal benefits married couples have that de facto couples do not, La Trobe University, 21 September 2017.

51Note 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.

52ibid.

53ibid.

54above, n 36.

55Supreme 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.

56Criminal Trial Courts Bench Book, [6-440].

57See n 56.

58Judicial 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.

59Judicial Commission of New South Wales, Local Courts Bench Book, 1988, Sydney.

60The “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.

61See 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].

62See 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.

63Crimes (Sentencing Procedure) Act 1999, s 30A.