Cases about LGBTQI (4)

Campbell v Australia (HRC, 2017)

Remedy's assessment: Partially remedied

Dr Campbell and her partner of 10 years, Ms A, had a daughter together and are both recognised as the child’s legal parents. Without access to marriage equality in Australia, the couple travelled to Canada to marry. They separated and Campbell assumed sole care of their daughter. They obtained a formal separation and division of property, but no formal proceedings concerning the custody and care of their daughter. Ms A stopped contributing to their mortgage and to child support.

Australia forbids child marriage, polygamous marriage and same-sex marriage, although these kinds of marriages are lawful in certain other countries. Australian law provides divorce proceedings for the former two types of marriage, but forbids same-sex couples who have married abroad from obtaining a divorce in Australia. Campbell alleged that this distinction constitutes discrimination on the basis of sexual orientation, with difficulties and harms arising both from discrimination and denial of divorce.

The Committee found Australia in breach of article 26 of the ICCPR (equality before the law).

Read more on Campbell v Australia.

G v Australia (HRC, 2017)

Remedy's assessment: Unremedied

Ms G is a transgender woman. She changed her name on her birth certificate and had her driver’s license, Medicare card and credit cards reissued in her new name and successfully applied for a passport in her new name and gender. She married a woman, and subsequently underwent gender affirmation surgery.

Because Australia did not, at the time, permit same-sex marriage, it would not change the gender on the birth certificate of someone who is married. The same restriction did not apply to other identity documents, such as passports.

Ms G’s birth certificate stated that she was born male, but presents and identifies female. It thereby reveals private information about the fact that she is transgender and is a violation of her right to privacy (art 17).

Requiring Ms G to divorce in order to obtain a birth certificate that correctly identifies her gender is arbitrary interference with her right to family (art 17).

Further, “by denying transgender persons who are married a birth certificate that correctly identifies their sex, in contrast to unmarried transgender and non-transgender persons, the government is failing to afford the author and similarly situated individuals equal protection under the law”. The HRC found Ms G experienced discrimination on the basis of her marital status and her transgender identity (art 26).

Australia must make “full reparation” to Ms G, including providing her with a birth certificate consistent with her sex. Australia must also prevent similar violations in the future by revising its legislation to comply with the Covenant.

Read more on G v Australia.

Toonen v Australia (HRC, 1994)

Remedy's assessment: Remedied

Nick Toonen was a gay Tasmanian in a state where consenting sex between adult men in private was still punishable by up to 25 years’ gaol. Mr Toonen alleged that this violated his right to privacy and that the only effective remedy would be repeal of the relevant provisions of the Tasmanian Criminal Code. The Australian Government agreed with Mr Toonen, noting that homosexuality had been decriminalised in all other Australian jurisdictions. The Tasmanian Government defended its laws, however, on public health and moral grounds. The HRC found the laws were an arbitrary interference with Mr Toonen’s right to privacy and that an effective remedy would require the repeal of those laws. It also established that the prohibition on discrimination on the basis of ‘sex’ found in articles 2(1) and 26 includes sexual orientation. Australia enacted the Human Rights (Sexual Conduct) Act 1994 (Cth) to prohibit laws that arbitrarily interfere with the sexual conduct of adults in private. Tasmania subsequently amended its Criminal Code.

Read more on Toonen v Australia.

Young v Australia (HRC, 2003)

Remedy's assessment: Remedied

Edward Young was in a same-sex relationship with war veteran Larry Cain for 38 years until the latter’s death. Mr Young was denied the pension paid to the dependants of war veterans who have died of war-related causes. The Veterans’ Entitlements Act 1986 (Cth) explicitly stated that eligible partners are of the opposite sex to the veteran, and this was the reason given for refusing Mr Young’s application. The Toonen case had established sexual orientation as a proscribed ground for differentiation under article 26, and the HRC found in Mr Young’s favour. It suggested Mr Young’s application for the pension be reconsidered without prejudice, and the law amended, if necessary. In 2008, Australia amended many instances of same-sex discrimination in federal legislation in a broad range of areas including veterans’ entitlements, and cited Young v Australia as an influencing factor. Mr Young has still not received the pension, however, as the Department of Veterans’ Affairs now contests his claim that Mr Cain died of war-related causes. The dispute is now one of medical opinion. The HRC has deemed Australia’s response unsatisfactory and follow-up dialogue ongoing.

Read more on Young v Australia.