NewsWrap
for the week ending August 27, 2005
(As broadcast on This Way Out program #909, distributed 8-29-05)
[Written by Cindy Friedman, with thanks to Graham Underhill, Rex Wockner, and 
Greg Gordon]


Reported this week by Christopher Gaal and Cindy Friedman


  A Hong Kong judge has struck down four laws criminalizing sex between men 
with the island's first affirmation by a court that sexual orientation is a 
basis for protection from discrimination.  Over the last five years, 63 men have 
been arrested under those statutes, leading to 31 prosecutions and 26 
convictions.
20-year-old gay plaintiff William Roy Leung said of his victory, "I can 
finally have a loving relationship without being scared of going to jail."


  The government actually admitted that three of the four challenged articles 
of Section 118 of the Crimes Ordinance are unfairly discriminatory in 
violation of Hong Kong's constitution -- known as the Basic Law -- and its Bill of 
Rights.
Those three laws criminalize acts between men that are legal if women are 
involved once all parties are 16 years old.  One is the so-called "gross 
indecency" law, which provides for two years' incarceration for men who engage in sex 
acts other than anal intercourse if one or both of them is under age 21.  The 
other two criminalize private consensual acts among more than two men 
regardless of age.
But the government defended the so-called "buggery" law providing for 
sentences up to life imprisonment for private consensual anal intercourse between men 
if one or both is under age 21, because heterosexual anal intercourse is also 
illegal if either party is under 21.  But for those heterosexual acts, only 
the male participant is prosecuted, while both parties to homosexual anal 
intercourse are.  The government maintained that difference served to prevent 
extortion.


  Justice Michael Hartmann of the High Court, also known as the Court of 
First Instance, declared that, "Put plainly, heterosexual couples may have sexual 
intercourse under the age of 21, homosexual couples may not."
He said, "For gay couples, the only form of sexual intercourse available to 
them is anal intercourse..."  To him the buggery statute "is disguised 
discrimination founded on a single basis:  sexual orientation.
"The four sections are demeaning of gay men who are, through the legislation, 
stereotyped as deviant.  The sections also constitute ... a grave and 
arbitrary interference with the right of gay men to self-autonomy in the most 
intimate aspects of their private lives."


  The government is considering whether to appeal this ruling, but the Hong 
Kong group Human Rights Monitor said that now a court has deemed the laws 
unconstitutional, there is no legal authority for their enforcement.


  A High Court Justice in Fiji this week similarly found laws criminalizing 
sex between men there to be unconstitutionally discriminatory and inconsistent 
with privacy rights, as he overturned the convictions and two-year sentences 
of a Fijian and an Australian which had caused an international outcry.  Carlos 
Perera of Fiji's Sexual Minorities Project said the decision served to 
legalize "consensual relationship between two men within the privacy of their home." 
 But although he called it a "huge step," defense counsel Natasha Khan had 
hoped the ruling would go even farther to decriminalize homosexual acts in 
public as well.
Australian Thomas McCosker and Fijian Dhirendra Nand had pleaded guilty in 
April to violations of two articles of Section 175 of the Penal Code -- known as 
"carnal knowledge against the order of nature" -- and of Section 177, which 
prohibits "gross indecency".


  Justice Gerard Winter recognized that those pleas came under pressure by 
police and the magistrate after the men were arrested and tried without legal 
representation.  
Winter criticized some remarks the magistrate made from the bench as 
inappropriate.  One such remark was that what the men had done would make "any sane 
person vomit."
Justice Winter found that Section 177 discriminated against males and denied 
them equal treatment under the law, since it criminalizes behavior between men 
that is legal when women are involved.  He further found that while the 
language of Section 175 did not single out acts between men, its enforcement had 
been primarily and perhaps exclusively directed towards homosexuals.  The laws 
provide for sentences of up to 14 years behind bars.
Justice Winter wrote that, "What the constitution requires is that the law 
acknowledges difference, affirms dignity and allows equal respect to every 
citizen as they are.  A country so founded will put sexual expression in private 
relationships into its proper perspective and allow citizens to define their own 
good moral sensibilities, leaving the law to its duties of keeping sexual 
expression in check by protecting the vulnerable and penalizing the predator."
He also called for faster action on legislation to reform the laws.
Fiji's government may decide to appeal the ruling to the Supreme Court.


  An appellate court this week ordered Aruba's government to officially 
register the Netherlands marriage of a lesbian couple.  As the decision stated 
plainly, "Since Aruba is part of the Kingdom of the Netherlands, it must comply 
with demands of the Kingdom," including recognizing legal documents such as 
marriage certificates.  But the government of the Caribbean island and former 
Dutch colony was appealing the similar finding of a lower court in December, and 
has vowed to appeal the latest ruling to the Supreme Court.  
A spokesperson for the Prime Minister, Nelson Oduber, responded to the ruling 
with a declaration that, "We give neither legal nor moral recognition to 
same-sex marriages."  


  The couple in the case, Charlene and Esther Oduber-Lamers, married in 2001 
but filed a lawsuit last year after Aruba's Public Registry refused to 
recognize that marriage.  As their situation became known, Arubans so harassed the 
couple that they returned to the Netherlands and have remained there for the 
last ten months.  Charlene is an Aruban citizen, but without registration of the 
marriage, Netherlands citizen Esther could not stay in Aruba for more than six 
months at a time or receive spousal health benefits from Charlene's employer. 
 Esther would also not have been recognized as a parent of the daughter 
Charlene bore two years ago, even though Esther herself donated the egg.


  And that's just one of the lesbian parental situations that were clarified 
in law by a ground-breaking decision of California's state Supreme Court this 
week.  The court ruled in three cases where a lesbian partner's status with 
respect to a child conceived by artificial insemination was disputed after the 
couple had broken up.  The decision laid full parental rights and 
responsibilities on both partners in each case -- even without a couple's having officially 
registered with the state as domestic partners or having formally adopted a 
child -- because the women had cooperated in conceiving and rearing the 
children.
Two of the couples had one partner carry a child resulting from implantation 
of an egg donated by the other, giving each a biological claim to motherhood.  
But when those couples split, the women who had been pregnant maintained that 
only they should be legally recognized as parents, to the exclusion of the 
genetic mothers.  One child-bearer was seeking to remove the egg donor from the 
child's birth certificate, while one egg donor was petitioning to be 
recognized as a parent in order to gain visitation rights.
The state's highest court declared, "We perceive no reason why both parents 
of a child cannot be women. ... When partners in a lesbian relationship decide 
to produce children in this manner, both the woman who provides her ova and 
her partner who bears the children are the children's parents."  The ruling said 
that for each couple, both mothers should be legally recognized with equal 
rights and obligations.  For one of these couples, the court reached this 
decision unanimously.  For the other, the court split 4-to-2 because the egg donor 
had signed a formal waiver of parental rights at the time of the donation.


  In the third case conception came by the more common method of artificial 
insemination of the bearing mother's own egg, although a little less typically 
the couple agreed that both of them would bear children.  But when it came to 
the breakup, the partner who'd served as breadwinner did not want to pay child 
support for the children borne by the other, who had served as stay-at-home 
caregiver to all the children.  It was the county that provided welfare to the 
stay-at-home mother that was trying to collect from the former breadwinner, 
just as it would do with a so-called "deadbeat dad".  The court found 
unanimously that the breadwinner had financial responsibilities to the children borne by 
her partner as well as the one she bore herself.
The impact of the decision potentially affects thousands of children in 
California, and the ruling is expected to influence courts in other U.S. states as 
well.  Lesbigay advocacy groups praised the ruling and called it historic.


  And finally... apparently many women are looking for sperm donors -- the 
Netherlands' TV station Talpa has given them their own reality show.  Men can 
volunteer via e-mail.  The pilot edition features a lesbian couple, Belgian 
national Kristel and her partner Emmelyn.  Kristel describes their yearning for 
children, their thus-far failed search for the right donor, and her own aversion 
to using an anonymous donor.  Laying out their specifications for the role -- 
male aged 18 to 55, preferably tanned with blue eyes -- Kristel tells the 
camera, "I want your child and nothing more."  And that's the name of the show, 
brought to you by John de Mol, the father of "Big Brother".  Whether what the 
press has dubbed "the sperm show" actually becomes a series will depend on how 
it fares in competition with other sample reality shows airing the same week.