- Morgan Wayne ‘Queer law: identity, cluture, diversity, law’ (1995) 5 Australasian Gay and Lesbian Law Journal 1 at 36–7.
- JM v QFG [2001] 1 Qd 373 396 (Thomas JA).
- Harlow Holly ‘Paternalism without paternity: discrimination against women seeking artificial insemination by donor’ (1996) 6 Southern Californian Review of Law and Women's Studies 173 at 176. I use the abbreviation CE for Common Era in place of the anglocentric, Christianity based term AD.
- (1997) EOC ¶92–902.
- Morgan above note 1 at 37–8 and at 41.
- Self-insemination can be performed in the home with the aid of a syringe or diaphram. Instructions are available on the web, for example at www.fertilityplus.org/faq.homeinsem.html. This form of home insemination is commonly know as the ‘turkey baster’ method. For a critique of ‘turkey baster’ terminology see Ikemoto Lisa ‘The in/fertile, the too fertile, and the dysfertile’ (1996) 47 Hastings Law Journal 1007 at 1035.
- In fact, the ‘technology’ of assisted insemination is far from new—see comment in introduction, above.
- See for example Infertility Treatment Act 1995 (Vic) s 7(1); For a discussion of this section see Walker Kristen ‘1950s family values vs human rights: in vitro fertilisation, donor insemination and sexuality in Victoria’ (2000) 11 Public Law Review 292 at 305.
- Mary Ann Coffey cited in Arnup Katherine ‘Finding fathers: artificial insemination, lesbians and the law’ (1994)
- Canadian Journal of Women and the Law 97 at 101.
- Infertility Treatment Act 1995 (Vic).
- Reproductive Technology Act 1988 (SA).
- Human Reproductive Technology Act 1991 (WA).
- Infertility Treatment Act 1995 (Vic) s 8; Reproductive Technology Act 1988 (SA) s 13; Human Reproductive Technology Act 1991 (WA) s 23. As originally enacted, the Victorian statute limited access to married women, however following a finding by the Human Rights and Equal Opportunity Commission in MW, DD, TA and AB v Royal Women's Hospital [1997] HREOCA 6 (5 March 1997) that three unmarried couples had been unlawfully discriminated against on the basis of marital status contrary to s 22 of the SDA, the Victorian Parliament amended the Act to extend access to women in a heterosexual de facto couple: Infertility Treatment (Amendment) Act 1997 (Vic).
- (1996) SASR 486.
- [2000] FCA 1009. An application by the Catholic Bishops to have the decision quashed was dismissed by the High Court: Re McBain; Ex parte Australian Catholic Biships Conference [2002] HCA 16 (18 April 2002).
- Section 22 of the SDA prohibits discrimination, inter alia, on the grounds of marital status.
- The vicarious liability of QFG is ignored for the purposes of this article.
- Anti-Discrimination Act 1991 (Qld) ss 134, 136.
- JM v QFG Queensland Anti-Discrimination Tribunal Atkinson P 31 January 1997 at 15. A summary of the decision with selected extracts is reported at JM v QFG (1997) EOC ¶92–876.
- As above at 77,426; JM v QFG [2000] 1 Qd R 373 at 382–3.
- QFG v JM (1997) EOC ¶92–902 at 77,442.
- At 77,424–5.
- At 77,442.
- JM v QFG [2000] 1 Qd R 373 at 389–90 (Davies JA); at 394 (Pincus JA); at 397 (Thomas JA).
- JM v GK High Court of Australia Transcripts Gleeson CJ, Callinan J 24 June 1999.
- Jennifer Morgan v GK Queensland Anti-Discrimination Tribunal Member Pagini 22 May 2001.
- For a discussion of the reaction to the Tribunal's initial decision, see Millbank Jenni ‘Every sperm is sacred?’ (1997) 22 Alternative Law Journal 126. The newspaper headline ‘Too many rights, little thought for responsibilities’ is typical of the media reaction: at 129, similarly, consider comments of the Queensland Health Minster that associated lesbian access to AI with ‘Hitler's super race scheme’.
- Millbank Jenni Same Sex Couples and Family Law Paper presented at the Third National Conference of the Family Court, Melbourne 20–24 October 1998 at note 19.
- QFG v JM (1997) EOC ¶92–902 at 77,420.
- Walker above note 8 at 299.
- QFG V JM (1997) EOC ¶92–902 at 77,420.
- Morgan Wayne ‘Identifying evil for what it is: Tasmania, sexual perversity and the United Nations’ (1994) 19 Melbourne University Law Review 740 at 746–50.
- QFG v JM (1997) EOC ¶92–902 at 77,420. The problematic use of the word ‘normal’ is discussed below.
- As above at 77,420.
- JM v QFG [2000] 1 Qd R 373 at 376.
- JM v QFG Queensland Anti-Discrimination Tribunal Atkinson P 31 January 1997 at 6.
- Macquarie Concise Dictionary (3rd ed 2000).
- The Tribunal decision, in contrast, refers to the Macquarie Dictionary: JM v QFG Queensland Anti-Discrimination Tribunal Atkinson P 31 January 1997 at 13. While still inherently questionable, the Macquarie is at least Australian and Atkinson used an up to date version.
- For a novel and entertaining account of the history of the Oxford English Dictionary, see Winchester Simon, The Surgeon of Crowthorne Viking London 1998.
- Minow Martha ‘Redefining families: who's in and who's out?’ (1991) 62 University of Colorado Law Review 269 at 272.
- Admittedly, the definitions provided by his Honour independently of the Shorter Oxford Dictionary are less than illuminating. ‘“Inactivity”, he writes, 'is defined to mean the quality or state of being inactive whereas “activity” connotes the state of being active’: QFG v JM (1997) EOC ¶92–902 at 77,424.
- Ambrose here seems primarily concerned with ‘sex’ as identity, rather than sex the act. The fact that he does not even mention this further meaning is also troubling.
- Butler Judith Gender Trouble: Feminism and the Subversion of Identity Routledge New York 1990.
- QFG v J M (1997) EOC ¶92–902 at 77,422.
- At 77,422. This definition is also out of date. From 1993 the Oxford defined lesbian as… ‘Of a woman: homosexual. Also, of, pertaining to, or characterised by female homosexuality’.
- At 77,424.
- At 77,422.
- At 77,422x.
- At 77,424.
- At 77,436–7.
- At 77,436–7.
- See for example Busby Karen ‘The maleness of legal language’ (1989) 8 Manitoba Law Journal 191; Bender Leslie ‘An overview of feminist torts scholarship’ (1993) 78 Cornell Law Review 575; Finley Lucinda ‘A break in the silence: including women's issues in a torts course’ (1989) 1 Yale Journal of Law and Feminism 41; Martin Robyn ‘A feminist view of the reasonable man: an alternative approach to liability in negligence for personal injury’ (1994) 23 Anglo-American Law Review 334, to name just a few.
- QFG v JM (1997) EOC ¶92–902 at 77,422.
- See Sedgwick Eve Kosofskv ‘The epistemology of the closet’ in Henry Abelove, Michele Barale and David Halperin (eds) The Lesbian and Gay Studies Reader Routledge New York 1993 45 at 49; Morgan above note 1 at 10; Smart Carol ‘Law, feminism and sexuality: from essence to ethics?’ (1994) 9 Canadian Journal of Law and Society 15 at 19.
- Smart above note 54 at 19.
- QFG v JM(1997) EOC 192–902 at 77,422.
- See for example at 77,426; at 77,428; at 77429; at 77,437.
- See Butler above note 43 at 7.
- See for example QFG v JM (1997) EOC ¶92–902 at 77,420; at 77,425; at 77,436.
- At 77,419–21.
- At 77,425.
- See discussion below.
- At 77,425.
- Lord Hailsham cited in QFG v JM (1997) EOC ¶ 92–902 at 77,432: ‘Such hyperbole is excusable in ordinary mortals but not in those who have to consider and apply Acts of Parliament.’
- As Graycar observes, the doctrine of judicial notice is often not explicitly mentioned by judges, however it seems ‘they do call on it for aid whenever they rely on assumptions and myths in their decision making’. I submit that this is exactly what is occurring here: Graycar Regina ‘The gender of judgments: an introduction’ in Thornton Margaret (ed) Public and Private: Feminist Legal Debates Oxford University Press Melbourne 1995 262 at 267.
- QFG v JM (1997) EOC ¶92–902 at 77,427 (emphasis added).
- At 77,428 (emphasis added).
- JM v QFG [2000] 1 Qd R 373 at 398 (Thomas JA).
- Graycar above note 65.
- The use of this term in anti-discrimination legislation has been extensively critiqued: see for example Morgan Wayne ‘Still in the closet: the heterosexism of equal opportunity law’ (1996) 1 Critical InQueeries 119 at 126–31; Chapman Anna ‘Anti-discrimination legislation law and sexual orientation: some observations on terminology and scope’ (1996) 3 Murdoch University Electronic Journal of Law at [13]-[14] and discussion below.
- JM v QFG [2000] 1 Qd R 373 at 392 (Pincus JA); at 398 (Thomas JA).
- Morgan above note 1 at 28.
- JM v QFG [2000] 1 Qd R 373 at 391.
- At 396; see also QFG v JM (1997) EOC ¶92–902 at 77,425 (Ambrose J).
- Statham Bronwyn (Re)producing lesbian infertility: discrimination in access to assisted reproductive technology' (2000) 9 Griffith Law Review 112 at 148.
- See Weedon Chris Feminism, Theory and the Politics of Difference Blackwell Oxford 1990 at 9.
- Sedgwick above note 54 at 51.
- This is argument is considered and rejected by Pincus JA: JM: JM v QFG [2000] 1 Qd R 373 at 392.
- As above at 396 (Thomas JA). See also at 391 (Pincus JA).
- As above; see also at 385–6 (Davies JA) and QFG v JM (1997) EOC ¶92–902 at 77,426 (Ambrose J).
- JM v QFG [2000] 1 Qd R 373 at 386 (Davies JA).
- JM v QFG Queensland Anti-Discrimination Tribunal Atkinson P 31 January 1997 at 1.
- at 15.
- Millbank above note 27 at 129.
- Chapman above note 70 at [2].
- See generally Morgan above note 70 and Chapman above note 70. Note the Victorian Equal Opportunity Act (1995) also uses the term ‘lawful sexual activity’, although it is defined as including ‘engaging in or refusing to engage in lawful sexual activity’.
- Chapman above note 70 at [13].
- QFG v JM (1997) EOC ¶92–902 at 77,436.
- JM v QFG Queensland Anti-Discrimination Tribunal Atkinson P 31 January 1997 at 14, referring to the conclusions of the National Bio-ethics Consultative Committee Report.
- Royal Commission on New Reproductive Technologies (Canada) Proceed With Care: Final Report of the Royal Commission on New Reproductive Technologies 1993 at 172–3.
- Ikemoto above note 6 at 1024–7 and at 1030.
- For an excellent analysis of the various cultural and historical meanings of reproduction, see Franklin Sarah and Ragone Helena (eds) Reproducing Reproduction: Kinship, Power, and Technological Innovation University of Pennsylvania Press Philadelphia 1998. I do not mean to imply that society, history and science are mutually exclusive categories, simply that each is an important factor in how fertility is understood and characterised. For an ‘entertaining’ discussion of the way scientific discourse, in particular understandings of conception, are constructed by specific notions of gender roles, see Martin Emily ‘The egg and the sperm: how science has constructed romance based on stereotypical male-female roles’ in Franklin Sarah (ed) The Sociology of Gender Edward Elgar Publishers 1991 at 330.
- QFG v JM (1997) EOC ¶92–902 at 77,434.
- JM v QFG [2000] 1 Qd R 373 at 385–6 (Davies JA); at 392 (Pincus JA); at 395 (Thomas JA); QFG v JM (1997) EOC ¶92–902 at 77,434 (Ambrose J).
- I borrow the terms ‘clinical’ and ‘social’ infertility from Walker above note 8 at 298 who uses them in the context of critiquing Gavan Griffith's interpretation of the Federal Court decision of McBain v Victoria [2000] FCA 1009; see also Walker Kristen ‘Equal access to assisted reproductive services: the effect of McBain v Victoria’ (2000) 25 Alternative Law Journal 288 at 289.
- Cussins Charis ‘Producing reproduction: techniques of normalisation and naturalisation in infertitility clinics’ in Sarah Franklin and Helena Ragone (eds) Reproducing Reproduction: Kinship, Power, and Technological Innovation University of Pennsylvania Press Philadelphia 1998 66 at 75.
- Walker above note 8 at 298.
- Royal commission on New Reproductive Technologies (Canada) above note 90 at 457.
- Statham above note 75 at 138.
- Such reasoning obviously extends to the position of single women.
- QFG v JM (1997) EOC ¶92–902 at 77,434.
- At 77,426.
- At 77,430 (emphasis added).
- JM v QFG Queensland Anti-Discrimination Tribunal Atkinson P 31 January 1997 at 13–14; see also the discussion in the report of the Royal commission on New Reproductive Technologies (Canada) above note 90 at 455–8.
- For a discussion of choices in legal decision-making see for example Frug Gerald ‘A critical theory of law’ (1989) Legal Education Review 43.
- Ikemoto above note 6 at 1028.
- Thomson Michael Reproducing Narrative: Gender, Reproduction and the Law Ashgate Publishing London 1998 at 181.
- QFG v JM (1997) EOC ¶92–902 at 77,434.
- JM v QFG [2000 1 Qd R 373 at 381 (Davies JA); see also at 394 (Thomas JA).
- QFG v JM (1997) EOC ¶92–902 at 77,439.
- Anti-Discrimination Act 1991 (Qld) s 28. The provision excuses discrimination by employers on the grounds of ‘lawful sexual activity’ (and only that ground) if the work to be undertaken by the employee involves contact with children. See Morgan above note 70 at 132–4; Chapman above note 70 at [24]-[29]
- Although one wonders what he means by ‘financial’ concerns—is he perhaps referring to the inequalities that exist in the workplace which result in women earning a lower than average income than their male counterparts? Presumably a lesbian family would endure this burden twice over…
- The assumptions behind the view that lesbian parents are not in the child's best interest are exposed and analysed by Walker above note 8 at 300–3.
- Walker above note 8 at 303 for a summary of the various studies.
- JM v QFG Queensland Anti-Discrimination Tribunal Atkinson P 31 January 1997 at 8; see also Walker above note 8 at 300–3; Royal Commission on New Reproductive Technologies (Canada) above note 90 at 456; Nicholson Alistair ‘The changing concept of family: the significance of recognition and protection’ (1996) 3 Murdoch University Electronic Journal of Law at [64]-[66]
- See Walker above note 8 at 294–6.
- Statham above note 75 at 148. This conclusion is particularly ironic considering the persistent criticism of gay men and lesbians based on the assumption of excessive promiscuity and the myth that same sex relations are typically non-monogamous.
- See for example Nicholson above note 115.
- Morgan above note 1 at 29.
- Arnup Katherine and Boyd Susan ‘Familial disputes? Sperm donors, lesbian mothers, and legal parenthood’ in Herman Didi and Stvchin Carlv (eds) Legal Inversions Temple University Press Philadelphia 1995 77 at 78.
Australian Feminist Law Journal
Volume 16, 2002 - Issue 1