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Judgment
Title:
Zappone & Anor -v- Revenue Commissioners & Ors
Neutral Citation:
[2006] IEHC 404
High Court Record Number:
2004 19616 P
Date of Delivery:
12/14/2006
Court:
High Court
Composition of Court:
Dunne J.
Judgment by:
Dunne J.
Status:
Approved

Neutral Citation Number: [2006] IEHC 404
THE HIGH COURT
[2004 No.19616 P.]
BETWEEN
KATHERINE ZAPPONE AND ANN LOUISE GILLIGAN
PLAINTIFFS
AND
REVENUE COMMISSIONERS, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS
AND
THE HUMAN RIGHTS COMMISSION
NOTICE PARTY
Judgment of Ms. Justice Dunne delivered on the 14th day of December, 2006
The plaintiffs in this case are women who are Irish citizens and domiciled in this jurisdiction. They have lived together as a co-habiting couple in a lesbian relationship since their relationship began in 1981. Since 1983 they have lived together in this jurisdiction. The first named plaintiff is a Public Policy Research Consultant and a member of the Human Rights Commission. The second named plaintiff is an academic who works as a lecturer in St. Patrick’s College Drumcondra.
On the 13th September, 2003, the plaintiffs married one another in Vancouver, British Columbia, Canada. In Canada recognition has now been given to same sex marriage. One of the issues in this case relates to the validity of that marriage in terms of Canadian law but more particularly in terms of Irish law. A number of statements of evidence were submitted to the court by the parties proffering different views on the validity of the marriage in Canada. Assuming that the marriage is regarded as valid in Canada, the question of the recognition of that marriage in this jurisdiction becomes an issue and if it is not entitled to recognition in this jurisdiction, then, the plaintiffs claim a right to marry in this jurisdiction. Throughout this judgment I will refer to the marriage of the plaintiffs as such – by doing so I do not purport to imply any conclusion as to its status either in terms of Canadian law or Irish law.
Subsequent to their marriage, the plaintiffs’ solicitors wrote by letter dated 28th April, 2004, to Oifig an Ard-Chláraitheora seeking confirmation that their marriage was legally binding in Ireland. The response by letter dated 10th May, 2004, was: “the remit of the Registrar General does not extend to making a declaration on the validity of marriages that occur outside the State. This is a matter for the courts under s. 29 of the Family Law Act 1995.”
A letter was also written by the plaintiffs to the first named respondents, the Revenue Commissioners, on 26th April, 2004. That letter requested that the plaintiffs should be able to claim “our allowances as a married couple under the Taxes Consolidation Acts.” Enclosed with the letter was a certificate of marriage, an affidavit of Kenneth W. Smith, a Canadian barrister and solicitor, which dealt with capacity to marry in Canada and the validity of the marriage in Canada. The Revenue Commissioners responded by letter dated 1st July, 2004. It set out the effect of s. 461 of the Taxes Consolidation Act 1997. It went on to state as follows:-
          “Section 1017 TCA 1997 provides for a husband being assessed on his and his wife’s total income. Section 1019 provides for a wife being assessed on her and her husband’s total income. The Taxes Act do not define husband or wife. The Oxford English Dictionary offers the following:
      Husband – a married man especially in relation to his wife.
      Wife – a married woman especially in relation to her husband.
          Revenues interpretation of tax law is that the provisions relating to married couples relate only to a husband and a wife. Therefore I cannot allow your clients for allowances as a married couple.”
Following the decision of the Revenue Commissioners, the plaintiffs herein sought leave to apply for judicial review in respect of that decision. The application for leave to apply for judicial review was granted by the High Court (McKechnie J.) on 9th November, 2004. The order directed the applicants to serve a plenary summons and statement of claim together with copies of the statement of grounds and verifying affidavit and of the order of the High Court on the Revenue Commissioners and the Attorney General. Thus the matter ultimately came on for hearing before the High Court by way of plenary proceedings on 3rd October, 2006.
In their pleadings, the plaintiffs referred to a number of provisions of the Tax Code and pointed out that they would benefit financially under the Tax Code, if recognised as a married couple living together. Alternatively they say that they are disadvantaged financially in Irish tax law through the lack of recognition for their marriage. It is further pleaded that although the words married persons, spouses, husband and wife are used in the various tax legislation referred to by the plaintiffs, no definitions for any of these terms are contained in the Tax Code. It is also pleaded that there is no definition of married persons so as to exclude persons of the same sex. It is pleaded that the defendants wrongfully and in breach of the plaintiffs’ constitutional rights interpreted tax law to mean that the provisions relating to married couples relate only to husband and wife. It is further pleaded that in their interpretation of tax law and the refusal to treat the plaintiffs as a married couple the defendants acted without lawful authority, subjected the plaintiffs to unjust and invidious discrimination and acted in breach of the constitutional rights of the plaintiffs under Article 40 and 41 of the Constitution with particular reference to the provisions of Article 40.1, Article 40.3.1, Article 40.3.2, Article 41.1, Article 41.3.1 and Article 43. The plaintiff seek to have the relevant provisions of the Tax Code declared invalid having regard to the provisions of the Constitution if as interpreted they confine tax benefits to marriages consisting of husbands and wives and exclude same sex marriages. Alternatively reliance is placed on the provisions of the European Convention on Human Rights and it is pleaded that in failing to recognise the marriage of the plaintiff and to apply the provisions in tax law relating to married persons to the plaintiffs as a married couple that the defendants have discriminated against the plaintiffs on the grounds of their gender and/or sexual orientation in breach of article 14 of the Convention and have violated their right to respect for their private and family life and their right to marry under articles 8 and 12 of the Convention. Various reliefs are then sought in furtherance of the matters claimed in the statement of claim.
The defence delivered herein was to a large extent a traverse of the plaintiffs’ claim together with a plea that the legislative provisions and the acts and wishes of the defendants which are impugned herein are required by and/or valid having regard to the provisions of the Constitution of Ireland and the defence goes on to particularise the specific provisions relied on in this regard.
The Evidence
Katherine Zappone outlined her background, her meeting with Anne Louise Gilligan and the commencement of their relationship. She described how they exchanged “life partnership vows” with one another in October, 1982, in Rockport, Massachusetts. Subsequently they came to Ireland and have lived here together since then. On November 27th, 1995, she acquired Irish citizenship.
Dr. Zappone then outlined her concerns about the taxation implications in respect of the sale of any property they owned and in particular her concerns in relation to the taxation implications in the context of the death of one or other of them. She pointed out that she herself didn’t have any pension provision. For that reason a second property was bought by the plaintiffs and intended to be a resource for her pension. She pointed out that because their marriage was not recognised the survivor would suffer a significant tax liability as compared to the survivor of a heterosexual married couple. She expressed a concern that a gift to her from Dr. Gilligan of an S.S.I.A. which had recently matured could carry tax implications for her.
Dr. Zappone was then asked about the circumstances in which she and Dr. Gilligan decided to go to British Columbia to get married. She pointed out that the social context was changing with regard to the understanding of the normality of her sexual identity. She opined that lesbian and gay people started to seek the same right to marry that heterosexuals had enjoyed. She said that the rights, responsibilities and benefits and obligations that come with the institution of marriage are extremely diverse and varied but within those obligations she described those as being to care for Dr. Gilligan in sickness or in health, to be faithful to her for the rest of her days and to live together as a couple. Although she said that at this point in their lives the issues relative to taxation and financial security had become more important they were secondary to the desire to make a life commitment to her partner and consequently to marry her. She pointed out that apart from some practical reasons of convenience the reason for choosing to get married in British Columbia was because that was the only place where they could marry as there was not a requirement for citizenship or for residency prior to marriage.
She then gave evidence as to the correspondence with the Registrar General and with the Revenue Commissioners. As reference has already been made to that correspondence, it is not necessary to set it out again. She indicated her disappointment with the response of the Registrar General and her view that the lack of an opportunity to marry in this jurisdiction amounted to discrimination on the basis of her sexual identity. In relation to the correspondence from the Revenue Commissioners she indicated that she also experienced a sense of great discrimination. As a result of that correspondence it was decided by the plaintiff to take legal proceedings on the basis that they had experienced discrimination by virtue of the failure to recognise them as a married couple.
She said that in the past Dr. Gilligan had suffered from breast cancer and accordingly she, Dr. Zappone, ceased working for a period of time to care for her partner. She pointed out the difference in tax benefits for a married couple in circumstances where one ceased, for whatever reason, to work for a period of time and someone in the position of the plaintiffs herein who would not benefit from the same tax regime. She confirmed that the proceedings were commenced in order to get recognition of what she described as her legally valid solemnised marriage in Vancouver, British Columbia. In the circumstances that the State declined to recognise that marriage the decision was made to commence these proceedings.
Dr. Zappone was then cross examined and she confirmed that as a result of legal changes in British Columbia the plaintiff made a decision to obtain legal recognition for their life partnership in British Columbia. They obtained legal advice from Mr. Kenneth Smith, a Canadian barrister and solicitor after their marriage there. They did not get legal advice in this jurisdiction prior to the marriage.
Before the marriage she had looked at the internet and at a document entitled “How to get married in British Columbia”. She saw the part of that document which advised that it was not necessary to be a British Columbia resident in order to be married there. She noted that the licence to marry was only valid in British Columbia. She didn’t see the part of the document that stated:-
          “If you are coming to B.C., to get married, please contact the appropriate authorities in the jurisdiction where you are a resident to determine whether your marriage will be recognised.”
She was then questioned as to how the response of the Registrar General to the effect that the question of the validity of a marriage was one for the courts and not for that office amounted to discrimination. Notwithstanding her evidence that she experienced the response as discrimination she accepted that her solicitors did not subsequently take issue with the Registrar General as to whether the Registrar General could deal with such issues.
Dr. Zappone confirmed that she became aware of the Civil Registration Act, 2004, during the course of these proceedings. She indicated that she is now aware of the specific provisions of that Act to the effect that there is an impediment to a marriage if both parties are of the same sex.
She was further asked about her reaction to the response of the Revenue Commissioners to the correspondence referred to above. She confirmed that she did not think the reasons given in that correspondence, saying that the relief contained in the Taxes Consolidation Act were applicable to heterosexual married people only and not otherwise, was very satisfactory.
Dr. Zappone was then asked in some detail about changes in the situation of gay and lesbian people brought about through the political process and in particular by means of legislation protecting rights and ensuring no discrimination. She accepted that since the decriminalisation of homosexuality 13 years ago, that there was strong anti-discrimination legislation although she was of the view that certain aspects of equality legislation did not protect the plaintiff particularly in the light of the action they were currently embarked upon.
She was then asked briefly about the nature of these proceedings and she confirmed that the case as it started off originally sought the recognition of the Canadian marriage. (I should note that at this stage there was some discussion between Counsel as to whether or not part of the original relief sought in the judicial review proceedings included the right to marry in this jurisdiction. I will come back to that point later.)
Dr. Zappone was then asked about the consequences of her proceedings in the event that she was successful. It was pointed out that amongst the reliefs sought was the striking down of various provisions of the Taxes Consolidation Act of 1997. She indicated that her understanding was that if those provisions were struck down on the basis that they are unconstitutional if they did not include the right to same sex marriage that they would be re-introduced with the inclusion of same sex couples. She conceded that she and Dr. Gilligan are not treated any differently in relation to taxation provisions from heterosexual cohabiting couples that were not married. She agreed that in 1937 when the institution of marriage was given constitutional protection the consensus as to what marriage involved was a marriage between people of the opposite sex. She believed that the view of society at that time was that homosexuals were of an inferior status and in that context were not allowed to participate in the institution of marriage. It was her belief that that view has now changed in that there is now a stronger consensus in relation to the acceptance of the normality of the sexual identity of people who are homosexual. Over time the understanding of marriage has changed and therefore the law has changed to reflect that. She expressed the view that in terms of recognising same sex marriages that the attitude or consensus as to same sex marriage is changing. Nonetheless she accepted that, although there had been changes in the law such as the Employment Equality Act in 1998 and the Equal Status Act in 2000 in terms of protecting the rights of individual gay and lesbian people, the Civil Registration Act in 2004 imposed a statutory impediment to same sex marriage notwithstanding the changes in relation to the law for the purpose of bringing about greater protection against discrimination. She accepted that a Bill sponsored by Senator Norris was presented to the Houses of the Oireachtas in relation to civil partnership but she did not think that the same had any relevance to the facts of this case. Finally she accepted that the statistics from the 2002 census indicated that there were 77,000 cohabiting couples and approximately 1,300 of those are gay cohabiting couples.
Dr. Ann Louise Gilligan then gave evidence. She described her background. Her evidence did not differ in any material respect and thus it is not necessary to set it out. Following her direct evidence, Dr. Gilligan was not cross examined by the State.
The evidence of Dr. Zappone and Dr. Gilligan was not challenged to any significant extent. The only point to note was the concession made by Dr. Zappone that there is no difference in the tax treatment of cohabiting couples who are either heterosexual or homosexual.
At that stage it was agreed by counsel for the defendants that a witness statement from Mr. Cremins of Price Waterhouse Coopers in relation to taxation matters could be handed in to the court. The purpose of the report was to deal with the taxation issue raised in the case. The report was then submitted in evidence subject to one matter which was under discussion between the parties and upon which clarification may have been required. This was subsequently dealt with. The report was written into the court record without being read out in full. The summary of the report noted that whilst the income tax regime does not hold an immediate identifiable disadvantage for the plaintiffs in their current circumstances capital gains tax capital acquisition tax and stamp duty regimes could do. He pointed out that current capital gains tax, capital acquisition tax and stamp duty legislation impact adversely on the ability of one plaintiff to provide for the other plaintiff in the case of their death or as the case may be if the relationship were to break down, in comparison to a married heterosexual couple.
Professor Henry Kennedy, a Consultant Forensic Psychiatrist who is the Clinical Director of the Central Mental Hospital and Professor of Forensic Psychiatrist at Trinity College Dublin then gave evidence. In addition to his oral evidence a report was also furnished by Professor Kennedy. He noted that in all eras and all cultures, homosexuality has been described. At times homosexuality was unremarked upon and open and at other times a repressed manifestation associated with particular consequences of that such as being a sub-culture. The Napoleonic code decriminalised homosexuality at a time when it was not decriminalised in England and that in countries which adopted the Napoleonic code, generally, homosexuality was decriminalised. He pointed out that psychiatry and medicine became involved in homosexuality and its consideration because psychiatrists were called upon to provide evidence in mitigation or defence of those charged with homosexual offences which carried extreme penalties.
Asked to consider the past 30 years in terms of the modern view of homosexuality he described the work of the Wolfenden Committee in the United Kingdom and stated that it was informed by the psychiatric opinion of its day and took the view that the function of the law was not to intervene in the private lives of citizens. It defined the role of law in relation to sexuality thus:
          “to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced or in a state of physical or economic dependents” …
and he went on to quote that it was not “the function of the law to intervene in the private lives of citizens”. He noted that the American Psychiatric Association statement in 1973 was of a similar view as to homosexuality. Its diagnostic and statistical manual for what counts as a mental illness or mental disorder dropped homosexuality from the classification as a mental illness or disorder. This followed a review of scientific literature and consultation with experts in the field which found that homosexuality does not meet the criteria to be considered a mental illness. In 1992 the American Psychiatric Association noted:-
          “Whereas homosexuality per se implies no impairment in judgment, stability, reliability or general social or vocational capabilities, the American Psychiatric Association calls on all international health organisations and individual psychiatrists in other countries to urge the repeal in their own country of legislation that penalised homosexual acts by consenting adults in private. And further the APA (American Psychiatric Association) calls on these organisations and individuals to do all that is possible to decrease the stigma related to homosexuality wherever and whenever it may occur.”
Although homosexuality is no longer considered to be a mental illness or mental disorder, the stigma attached to it by social discrimination gives rise to mental illnesses in those who are subject to that stigma or discrimination. He commented that homosexuality is a feature of the human condition just as one can be young, old, right handed or left handed. It is an aspect of normality. He referred to the past when attempts were made to provide treatments, so called, to cure homosexuality. He pointed out that there is scientific literature showing that none of those treatments succeeded and he added that one would now say they did not succeed because there was not anything capable of being changed.
He noted that in psychiatry there was now an awareness of the distinction between stigma and disability. The social perception of homosexuality is such that stigma attaches to homosexuality. He added that that stigma can give rise to distress shame, embarrassment and loneliness. In turn those reactions to the stigma can cause illnesses such as depression and anxiety. He quoted in particular from the Oxford Textbook of Psychiatry which offers an authoritative statement of the relationship between homosexuality and psychiatric disorder as follows:-
          “Most homosexual men are as contented as heterosexual and have a stable relationship with a partner. For others, homosexuality can lead to difficulties at several times of life. In adolescence there may be distress as sexual orientation is recognised for the first time, and a decision has to be made as to whether to follow or suppress homosexual feelings. With the approach of middle age, sexual partnerships may become difficult to arrange; there may be loneliness and depression if a man does not have other relationships built on friendship. A few middle aged homosexuals find it increasingly difficult to obtain sexual partners of their own age, and so turn towards younger homosexual prostitutes. It is exceptional for these men to turn to pre-pubertal children. Homosexual men vary in personality as much as heterosexual men. In homosexual men (as in heterosexual men) disorder of personality is more likely to lead to difficulty with other people or with the law, and more likely to lead to referral to a psychiatrist” (Oxford Textbook of Psychiatry, 3rd Edition 1996, p. 483).
Professor Kennedy went on to note that the consequence of any form of stigma and discrimination is the imposed limitation and adversity which can give rise to mental illness. He summarised his views by saying that from his point of view as a psychiatrist he found it useful to compare what he described as the rights perspective and the health perspective. From a rights prospective, inequality and discrimination lead to material adversity in careers and many other aspects of citizenship and social inclusion. These imposed handicaps, this stigma, lead to economic loss and they also lead to marginalisation and loss of social supports. These adversities which arise from inequality and discrimination have both direct and indirect effects on mental health. He went on to add that the direct effects of inequality and discrimination on mental health arise from adverse life events and difficulties and these are well established by research evidence as both the causes and the continuing factors for mental illness particularly depression. The indirect effects of inequality and discrimination leading on to mental illness arise from stigma and from denial of identity. Stigma leads to shame and loss of self esteem. He described this as a vulnerability factor for mental illnesses. He explained that in societies where there is stigma and discrimination, it is common for sub-cultures to arise as the only means of expressing openly the identity, in this case the homosexual identity, and with that goes the necessity of hiding the identity in broader society. It is that which gives rise to a continuing source of stress, distress and ultimately to mental illness.
In cross examination he agreed with counsel for the defendants that the effect of stigma that he described are the general effects of stigma or discrimination that might have effect on heterosexuals as well as homosexuals. In other words any form of discrimination or stigma could have those effects.
The next witness who gave evidence was a Professor Daniel Maguire, a professor of moral theological ethics at Marquette University, a Catholic Jesuit institution in the United States. Professor Maguire is a theologian. His evidence was admitted for a very limited purpose. It did not advance the Plaintiffs’ case to any extent. For that reason I do not propose to refer to it again.
Following the evidence of Professor Maguire there was some discussion about the statement of evidence of Dr. Evelyn Mahon as to figures available from the census and other demographic information. That statement was handed in. An appendix setting out the position in other E.U. countries relating to the issue of recognition of same sex marriage together with the issue of recognition of civil partnerships was included with that statement.
Professor Richard Green then gave evidence. He is a psychiatrist and lawyer. He was asked to deal with the issue as to whether or not there was evidence to show that the children of a same sex couple or raised by a same sex couple are any worse off from an emotional or any other relevant perspective than they would be compared to children raised by heterosexual couples. He had prepared a written report setting out findings from studies he himself had conducted and other studies in this area. His evidence was to the effect that children raised by same sex couples are not disadvantaged in terms of their psychological development, their psycho-sexual development, their social relations and that the extent of positive effective parenting that they obtain from their parents is not significantly different from that of the male/female heterosexual couple. He outlined the studies and research that have taken place in this area. Such research has now been ongoing for about 30 years. He himself published a paper in 1978. At the time, he assessed 11 boys and ten girls being raised by homosexual mothers. They were aged between five and 14 years and at the time of assessment they had lived with their lesbian mothers from between two and six years. Their psycho-sexual development was normal. Four of the children were old enough to report sexual interests in sexual partners and they recorded as being heterosexual. One of the concerns was to assess whether the children had been subjected to teasing by peers and three of the children had reported some teasing which had been of relatively brief duration. The other 18 children reported no teasing.
He conducted a further study with co-investigators in 1986, which was a study of lesbian mothers and their children compared to solo heterosexual mothers and their children. This study involved ten U.S. States and children aged between three and 11 years. There were 50 lesbian mothers and their 56 children and they were contrasted with 40 heterosexual divorced mothers and their 48 children. He pointed out that the mothers had lived as single parents for an average of four years. The majority of lesbian mothers lived with another female adult in addition to the children. He noted that with respect to peer group ratings of popularity there was no significant differences between the two groups of boys or the two groups of girls in the two family sets. No group differences were found on any indicators of the children’s discontent with their own gender as boys or girls. On no measure of psycho-sexual development were any group differences found between the boys or girls in the two samples. He concluded that the quality of parenting by the parents of same sex couples or perhaps single mothers who were lesbian mothers did not have any significant difference as compared to the quality of parenting of heterosexual mothers and their children. He concluded that the findings of the study were that there was no evidence of detriment to the children or of compromised parenting to the children.
He then referred to the findings from a longitudinal study carried out by Golombok and Others. Those involved were assessed in the mid 70’s aged ten and reassessed 15 years later, in 1991/1992, aged on average 25. The conclusions of that study were that children from the lesbian mother families reported more positive relationships with their mother’s female partners both as adults and during adolescents than the comparison group whose mothers had male partners. It was noted that if the mother had a stable long term same sex relationship at the time of the original study, the children were more likely to be accepting of their family background during their teenage years. Young adults from lesbian mother families were not significantly more likely than those from heterosexual backgrounds to report having been picked on by classmates although there was a small tendency to remember being teased about their own sexuality, particularly for the boys. However, he noted that the children were no more likely to report difficulty in bringing friends home and as a group they continued to experience good peer relationships. The conclusion of their researches with respect to the children’s own sexual orientation was that there was no difference between the proportions of young adults who report at least some same sex attraction. Those from lesbian families were more likely to have had a same sex relationship; however 23 of the 25 were heterosexual.
He discussed the issue of the quality of mother child interaction. The study carried out by Brewaeys and Others, including Golombok reported on this issue in 1977. The children concerned were from lesbian mothers whose mothers did not have a male partner and where the children had no contact with the biological father. These were pregnancies from donor insemination. The 30 homosexual mothers who were donor inseminated were compared with 38 heterosexual families. The children were aged eight years. The quality of mother/child interactions did not differ. The quality of interaction between the social mother, that is to say the lesbian mother’s female partner, and the child was found to be superior to the father/child relationship in heterosexual families. Social mothers were regarded more as a parent than the fathers were. It was noted in that study that the children of lesbian mother families were well adjusted and their gender role development did not differ from the children in heterosexual families.
Professor Green then discussed the American Academy of Paediatrics Committee on psycho-social aspects on child and family health which reported their professional opinion on children of lesbian mothers in 2002. No substantial differences were found between the children raised by homosexual parents and heterosexual parents. It was noted that in the case of male homosexual parents, there were “more similarities than differences in the parenting styles of gay and non gay fathers”. Lesbian mothers scored the same as heterosexual mothers in “self esteem, psychological adjustment and attitudes towards child rearing”. None of the children had gender identity confusion, wished to be of the other sex or consistently engaged in cross gender behaviour. For older children in the study there were no differences in sexual attraction or self identification as homosexual. The children showed no differences in personality measure, peer group relationship, self esteem, behavioural difficulties or academic success. A number of other parts of that report were read to Professor Green and it may be helpful to quote those in full:
          “A growing body of scientific literatures demonstrates that children who grow up with one or two gay and/or lesbian parents fare as well in emotional, cognitive, social and sexual functioning as do children whose parents are heterosexual. Children’s optimal development seems to be influenced more by the nature of the relationships and interactions within the family unit than by the particular structural form it takes.”
The summary at the end of the report states:
          “The small and non representative samples studied and the relatively young age of most of the children suggest some reserve. However, the weight of evidence gathered during several decades using diverse samples and methodologies is persuasive in demonstrating that there is no systematic difference between gay and non gay parents in emotional, health, parenting skills and attitudes towards parenting. No data have pointed to any risk to children as a result of growing up in a family with one or more gay parents. Some among the vast variety of family forms, histories and relationships may prove more conducive to healthy psycho-sexual and emotional development than others.”
The final sentence in the summary of that report stated as follows:
          “Although gay and lesbian parents may not, despite their best efforts, be able to protect their children fully from the effects of stigmatisation and discrimination, parents’ sexual orientation is not a variable that, in itself, predicts their ability to provide a home environment that supports children’s development.”
Professor Green noted that those passages accorded with his professional view as well.
Finally Professor Green referred to an article in the Scandinavian Journal of Psychology by Anderssen and others, which was a review of studies published between 1978 and 2000 reporting on some twenty studies of children of lesbian mothers. The studies concerned covered six hundred and fifteen children. They ranged in age from young childhood to adulthood. On outcomes of emotional functioning, sexual preferences, stigmatisation, gender role behaviour and behavioural adjustment, it noted that children raised by lesbian mothers did not systematically differ. They did not experience an adverse outcome.
Accordingly he summarised the situation by saying that there was great consistency in the findings from several studies conducted in the U.S., England and continental Europe spanning at least two decades. No clinically significant differences are found comparing boys and girls raised by lesbian mothers solo or with a female partner when compared with boys and girls raised by single heterosexual mothers or heterosexual mothers living with the father of their children. Sexual orientation data for the children do not differ. The quality of parenting between the groups is comparable. Peer group relations of the children, with minor exceptions, do not appear to be negatively impacted by the minority sexuality pattern of the children’s mother. His overall conclusion was that studies of children being raised by gender or sexually atypical parents do not demonstrate adverse impact on the children. It is the quality of the parent/child relationship and not the typical versus atypical status of the parent that is the essential ingredient of effective parenting and the best interest of the child.
Professor Green was vigorously cross examined. He explained that the motivation for the research he had described was in part due to a recognition of the importance of family structure in terms of child welfare. The other motivation for the research carried out sprung from the fact the thirty years ago it was unusual for same sex parents or lesbian or gay parents to have children and to argue that they should be allowed to maintain the parenting relationship with their children. There was much more stigmatisation of homosexuality at the time, there was concern as to whether homosexuality was a mental illness and whether that might impact on children. There were other aspects that the behaviour of homosexual parents, which in many jurisdictions were then criminalised, would have an impact on the children concerned. Accordingly as there was concern about how the various influences would impact on the children, a number of investigators set about studying important parameters of the parent child relationship in terms of the child’s development psycho-sexually and socially.
In terms of children’s welfare one of the first issues to consider was the psycho-sexual development of children if one has a parent whose psycho-sexual development is atypical, in other words what impact would that have on the child or children. Accordingly one of the considerations was to measure the extent to which boys and girls would adopt conventionally boyish and girlish behaviour during childhood. For children who were old enough to acknowledge or experience their sexual orientation to male or female partners, it was examined whether those children would themselves be heterosexual, bi-sexual or homosexual. Various other criteria were used in measuring child welfare for the purpose of ascertaining the children’s physical, mental and emotional health and development, such as the academic performance and levels of attainment of the children, the avoidance of crime and other forms of destructive behaviour and their functioning as adult in the areas of employment, citizenship and family formation. It was agreed that these were variables that might well be examined, though not necessarily in every single study.
Having identified various indicators that would be important to study in the context of child welfare, Professor Green accepted that there were indeed relevant indicators and that their importance would depend on the immediate focus of a particular research project.
He was cross examined extensively in relation to the methodology or scientific basis for carrying out the various studies referred to in his evidence. Without going into all of the detail, reference was made to the numbers involved in the types of studies carried out, the nature of those studies as to whether they were cross sectional studies or longitudinal studies, the nature of the indicators that were measured in the particular studies. In addition the manner in which the sampling for the various studies was done was examined. In this regard there was discussion as to the difference between probability sampling, snowball sampling and so on. It was put to Professor Green that there was controversy in the literature as to the ability to draw any meaningful conclusions at this stage of development as to the welfare effects on children growing up in lesbian households. Professor Green did not agree that there was such a degree of controversy, but accepted that there was a minority of those who wrote in this area who were of the view that it was too early to draw meaningful conclusions as to the welfare of children being brought up in households where the sexual orientation of the parents was homosexual. It was suggested that it was not appropriate to draw any long term reliable conclusion on the basis of the studies to date. The overall view of Professor Green was that there was such consistency in the various studies that the conclusions were reliable. He did not entirely agree with the proposition that there is a consensus amongst scientists who study family structures of the importance in terms of children’s welfare of the presence of both biological parents. He agreed that that was important but was uncertain as to whether there was a consensus that that was the ideal family structure. Even if it was the consensus, he was of the view that that was not the relevant issue. The relevant issue is the quality of the parents. He pointed out that there was nothing guaranteed to promote a child’s welfare simply by virtue of the presence of a mother and father in the home.
In re-examination, Professor Green was asked to refer to the report from the American Academy of Paediatrics. That report was a summary of research evidence on the topic of co-parent or second parent adoption by same sex parents. It noted at page 342 that
          “The focus of research has been on four main topic areas. Investigators have concentrated on describing the attitudes and behaviours of gay lesbian parents and the psycho-sexual development, social experience and emotional status of their children”
The report noted that the small and non representative samples studied and the relatively young age of most of the children suggest some reserve and Professor Greene accepted that that was in essence the gist of the cross examination by Mr. Gallagher. The report went on to note
          “The weight of evidence gathered during several decades using diverse samples and methodologies is persuasive in demonstrating that there is no systematic difference between gay and non gay parents in emotional health, parenting skills and attitudes towards parenting.”
Having been referred to further studies, one of which entitled “Does the Sexual Orientation of Parents Matter?”, was a critique of most of the research carried out in relation to the developmental outcomes of children raised by lesbian/gay parents, Professor Green noted that that study was referred to by Golombok and Others in the Avon Study which he had described and in which it was stated:










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