Judge slams 'illogical' decision that homosexuality is fixed at birth

A Federal Court judge has blasted a Commonwealth tribunal after it concluded homosexuality is fixed at birth and cannot change over time, branding the decision "illogical" and based on "assumptions, pre-conceptions or pre-judgments" about human sexuality.

Justice Jayne Jagot said the Administrative Appeals Tribunal (AAT) failed to "properly satisfy itself about critical facts" when it affirmed an immigration department decision refusing a Lebanese woman a temporary partner visa on the basis she was not in a genuine relationship with her husband.

The woman came to Australia in December 2009 on a student visa and remained in the country illegally between December 2013 and October 2014 before marrying her husband, a Lebanese man in Australia on a protection visa, and applying for a temporary partner visa.

According to the AAT, the woman's husband had been granted a protection visa on the basis of his homosexuality and feared persecution in Lebanon.

The tribunal wrote to the woman in January last year and said it was "difficult to see how the sponsor can have a commitment to his marriage to you when he has not told you about his claimed homosexuality".


The woman's lawyers wrote to the tribunal and said it was "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 woman's lawyers urged the AAT to consider the "cogent evidence" before it pointing to a genuine relationship, including the fact that the couple had a baby daughter.

But the tribunal found the couple were not credible witnesses. It said "the gay rights movement has, for decades, fought for the acceptance of homosexuality as a sexual orientation from birth, not something that ... is a matter of choice or will or accident".

The tribunal said it did not 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," the AAT said.

The tribunal said it did 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" but this was not what the husband had claimed.

The woman lodged an appeal against that decision in the Federal Circuit Court. The appeal was dismissed by Judge Alexander Street on the basis the tribunal’s findings were "reasonable and cannot be said to lack an evident and intelligible justification".

A subsequent appeal to the Federal Court met with a radically different response. Justice Jagot said the tribunal's "process of reasoning involves assumptions, pre-conceptions or pre-judgments" which prevented it considering the evidence before it.

The tribunal's decision exhibited "extreme illogicality and [a] failure to engage with the material before it", she said.

Justice Jagot said the decision was based on a premise about "sexual identity and attraction consisting of three mutually exclusive categories fixed at and immutable from birth, homosexual, heterosexual, and 'genuinely bisexual'".

She ordered that the matter be remitted to the AAT to be decided by another tribunal member "to avoid an appearance of bias".