“Irrational and illogical” to believe that sexual orientation can never change: Federal judge

A judge of the Federal Court of Australia, Justice Jagot, handed down a decision recently in which her Honour said that a Tribunal’s reasoning, based on the assumption that a person could never change their sexual orientation, was “affected by illogicality of the kind required to constitute jurisdictional error”- para [15]. The decision, in Abboud v Minister for Immigration and Border Protection [2018] FCA 185 (2 March 2018), was a sharp reminder that bureaucratic decisions must be based on evidence and not pre-conceived policy stances. The comments may have wider implications for arguments that are often unthinkingly presented about the possibility of someone changing their sexual orientation.

Factual Background

The facts of this case at first seem unlikely to raise fundamental issues about human sexuality. Ms Abboud had arrived in Australia on a student visa and over-stayed her visit. Later, however, she married Mr Abboud, who was himself originally from Lebanon, but had become an Australian citizen. Ms Abboud was then seeking the grant of a “partner” visa, based on her marriage, and also the fact that she and her husband had a child. Such a visa, in short, could only be granted if the couple could demonstrate, under s 5F of the Migration Act 1958 (Cth), that they had a “mutual commitment to a shared life as a married couple to the exclusion of all others” and that “the relationship between them [was] genuine and continuing”.

The reason the question of sexuality was raised, however, was that Mr Abboud had been initially granted asylum in Australia because he claimed, at the time, to be a homosexual man who would be persecuted on account of his sexual orientation if he returned to Lebanon. In short, this led the Tribunal which was considering the partner visa application to conclude that the claimed marriage between Mr and Ms Abboud was effectively a “sham”, and indeed that Mr Abboud was not the father of their child. According to the Tribunal, if he was indeed a homosexual, he could not have changed his sexual orientation and entered into a genuine heterosexual marriage.

Mr Abboud’s lawyers, when responding to initial comments of this sort, had written on his behalf to say that their client had “reformed”, and regarded his previous behaviour and lifestyle as “unvirtuous”- see para [8]. They also commented:

Furthermore, it is respectfully submitted that past homosexual desires and subsequently entering into a genuine heterosexual relationship should not be viewed as being mutually exclusive.  It is not irrational or unreasonable for a former homosexual man to undergo a radical change in his sexual desires and now be fully in love and dedicated to his wife and family.  The same also applies to the contrary, whereby a previously married heterosexual man, may subsequently leave his wife and family and enter into a homosexual relationship with another man.

Comments on this issue made by the Tribunal included the following, which is worth extracting in detail:

59. It seems to the Tribunal that the gay rights movement has, for decades, fought for the acceptance of homosexuality as a sexual orientation from birth, NOT something that the sponsor appears to be claiming is a matter of choice or will or accident. If the applicant can choose to be a heterosexual man, then presumably he can again choose at some time in the future to be a homosexual man again.  He could also have chosen not to be a homosexual man while he was in Lebanon and hence not have been in a position where he had to flee his country for fear of persecution on the basis of that homosexuality.  Certainly, if he had told the delegate that his homosexuality was a matter of choice and something he could change and become a heterosexual man, his claims for the protection of the Australian government and community would have been rejected.

60. Nor does the Tribunal accept the generalised argument that it is not unknown for a previously heterosexual man who has been married and has children, to enter into a homosexual relationship. Without wishing to continue to generalise, it is most likely that such homosexual men have always been homosexual and have married and had children to comply with what were considered societal norms.  Their ‘outing’ as homosexual is not a sudden or miraculous conversion, or matter of choice to become a homosexual man, even though it may be a choice to finally decide to finally put expression to who they believe they are and have been since they were born.

61. The Tribunal also takes issue with the sponsor’s use of the term “reformed” in relation to his homosexuality. He did not merely claim that he had homosexual desires or even had a homosexual relationship; his statement is much stronger than that:  he claims to have been a homosexual man but that he has ‘reformed’.

62. If indeed he does feel that he has “reformed” in that he now confirms with the role society expects of a man, which is to have a wife and children, then he clearly continues to see himself as a homosexual man, albeit one performing the role expected of a heterosexual man. He is not, in the Tribunal’s view, now a “heterosexual man” – he can only ever be, at best, a “reformed homosexual man”.  The Tribunal cannot be satisfied in these circumstances that the sponsor would continue to want to, or be authentically able to, remain a “reformed homosexual man” and hence be able to be in a committed, genuine, ongoing and exclusive relationship as man and wife with the applicant.

63. The Tribunal does not disagree that it may well be the case that some heterosexual men have homosexual desires, or vice versa, or that some people are genuinely bisexual. However, this is not what the sponsor is claiming.  The sponsor is claiming that he was a homosexual man – not that he merely had homosexual desires or homosexual relationships.  Be that as it may, the Tribunal is also concerned that if the sponsor considers that his past homosexuality was “unvirtuous”, he arguably remains deeply conflicted and it is not clear to the Tribunal that he is genuinely committed to his “reformation” from a homosexual man to a heterosexual man.  This leads the Tribunal to form a view that he has no genuine commitment to being in an ongoing, exclusive spousal relationship with the applicant, or indeed, that he ever has been in such a relationship.

Comments of Jagot J

In response to these comments, Justice Jagot made it clear that she viewed the decision of the Tribunal (and the intervening decision of the Federal Circuit Court, upholding this decision) as clearly wrong. Even accepting that her jurisdiction did not extend to a “merits” review, her Honour commented that these mistakes were so serious that they gave rise to “jurisdictional error”:

[1] I have decided this appeal should be allowed on the basis that the decision-making process of the Administrative Appeals Tribunal miscarried in a manner constituting jurisdictional error.  Whether the error is described as the failure of the Tribunal to properly satisfy itself about critical facts due to irrational or illogical reasoning … or as a failure by the Tribunal to engage with the claims on the basis of the material before the Tribunal and thus a failure to fulfil its statutory obligation (which I also consider to be the case), I am satisfied the error is one which is properly described as jurisdictional. (emphasis added)

In essence, her Honour found that the Tribunal’s decision was so deeply infected by unjustified presuppositions about “gay people” in general, that it was not able to properly deal with the claims that were made, and the evidence presented, by Mr Abboud.

[15] I consider the Tribunal’s process of reasoning involves assumptions, pre-conceptions or pre-judgments which prevented the Tribunal from engaging with the claims of the appellant and her sponsor that their marriage was and is genuine and the material which supported those claims (such as the child of the marriage). Further, these assumptions appear to be based on a premise about homosexual men in general, rather than the sponsor in particular.  The premise is that if, as the Tribunal’s view of the “gay rights movement” would have it, males are born either heterosexual or homosexual (or, in the Tribunal’s words, “genuinely bisexual”), then a man born homosexual can never enter into a genuine spousal relationship with a woman.  By proceeding on the basis of this premise as if it represents a universal truth, I consider that the Tribunal has disabled itself from engaging with the material before it.  Alternatively, I am satisfied that the Tribunal’s process of reasoning is affected by illogicality of the kind required to constitute jurisdictional error. (emphasis added)

The whole of her Honour’s careful demolition of the Tribunal’s reasoning is worth reading. She concludes at the end of this discussion as follows:

[26] I consider this part of the Tribunal’s reasons exposes both kinds of jurisdictional error – extreme illogicality and failure to engage with the material before it. It is not apparent how the sponsor’s consideration of his past homosexuality as “unvirtuous” or his arguable conflict about his past homosexuality could mean that the sponsor is not genuinely committed to his life as a man married to a woman, with a child.  The only apparent logical connection between the propositions is the premise that people who do or have identified as homosexual were born and thus must remain homosexual,and if they later identify as heterosexual or have heterosexual desires or marry a woman and have children for whatever reason (be it societal or personal expectation or otherwise) they are necessarily inauthentic and involved in a performance, with the result that the marital relationship cannot be genuine.  This also explains why, as the Tribunal would have it in [97], an apparent child of the marriage cannot be the biological child of the sponsor or, if the child is the biological child of the sponsor then, as a homosexual man, the sponsor has not ever been and will not be committed to raising the child….

[28] The entire reasoning process, for the reasons given, involved the working out of the inevitable consequences of the Tribunal’s essential premise about male sexuality, unconnected to the particular circumstances of the sponsor and the appellant, and irrespective of the material they had placed before the Tribunal.

The clear implications of these comments are that one should not apply a “paradigm” to all homosexual persons simply because it has been a slogan of the “gay rights movement”, as the Tribunal refers to it in para [59] of its comments quoted above. Mr and Ms Abboud had presented clear and cogent evidence that, whatever his previous sexual orientation, he had now changed and was happily married to a woman who had borne their child. To reject even the possibility of such a change occurring was for the Tribunal to have closed its eyes to the evidence, in preference to an assumption about how all homosexual persons “ought” to behave.

No doubt some will not be enamoured of the language used by Mr Abboud in his submissions- and indeed one suspects that this was partly what the Tribunal objected to. The use of the word “reformed” implies that one currently views one’s past behaviour as wrong- “unvirtuous” as Mr Abboud put it. Current popular discourse on these matters suggests that it is inherently hateful, bigoted and harmful to acknowledge that some people regard homosexual activity as wrong or (for religious persons) contrary to God’s will.

But in a clear and arguably courageous decision, Justice Jagot simply points out what is obvious- that indeed someone may decide that they no longer have a homosexual orientation. Her Honour impliedly rejects the view of the Tribunal, that “the only authentic and thus “genuine” relationship is one in which a person’s choice of partner matches the person’s assigned sexual identity from birth and any variation from this is necessarily inauthentic and thereby not “genuine””- quoted at para [24].

Implications

The decision here is at one level simply about Mr and Ms Abboud and their family. Jagot J directs at [29] that the issue of the genuineness of their marriage be reconsidered by another member of the Tribunal, given her serious critiques of the logic of the previous decision.

But there are wider implications of the strong characterisation of the Tribunal’s views as “irrational or illogical”. In repeating its mantra that a person’s sexual orientation is fixed and immutable, the Tribunal was adopting a view that is commonly heard in debates over this area. 

But her Honour’s decision points out that a general view of this sort must give way to evidence of the lived experience of homosexual (and indeed heterosexual) persons. Observably some change their sexual preferences. Not all those who were once homosexual, and are now not, are the victims of the dreaded “conversion therapy” so regularly invoked in this context. Indeed, it seems not to be beyond the realms of possibility that some people, like Mr Abboud, who are not happy with their current sexual preferences, might willingly and happily seek professional help from those who can assist them in a transition to a different lifestyle.

As noted above, Jagot J noted near the end of her judgment that the Tribunal’s decision was flawed because it was committed to a premise which it did not allow to be challenged:

[28] The entire reasoning process, for the reasons given, involved the working out of the inevitable consequences of the Tribunal’s essential premise about male sexuality, unconnected to the particular circumstances of the sponsor and the appellant, and irrespective of the material they had placed before the Tribunal

The courts and others need to follow the example of Justice Jagot in being prepared to examine the facts on the ground, and the lived experience of individuals, rather than making unwarranted and broad generalisations about how all homosexuals “ought to” behave.