By Professor Arthur S. Leonard. This article appeared in LGBT Bar NY’s LGBT Law Notes. Subscribe here!
Austria — Austria’s Constitutional Court ruled on June 15, in an opinion released on June 29 (G 77/2018), that individuals who reject the gender binary are entitled to an option other than male or female when completing official forms, and are not required under the Constitution to make a selection in any event. Responding to a request from intersexual activist Alex Juergen (a pseudonym for litigation purposes), the court invoked the European Convention on Human Rights, which provides that “everyone has the right to respect for his private and family life.” The court referred back to Kuck v. Germany, a decision by the European Court of Human Rights that identified individual freedom to define one’s gender identity as a basic essential of self-determination, according to a summary of the new decision circulated on-line by Dr. Helmut Graupner of Rechtskomitee LAMBDA. The court stated that this provision guarantees to individuals the right to “an individual sexual identity” and protects, “in particular, people with an alternative sexual identity.” Intersexual individuals are identified as having special need for protection as a very small group and their perceived “otherness.” Addressing a point as to which there are but a handful of judicial rulings anywhere in the world, the court rejected the designation of intersex status as a pathological development, indicating that “sex-assigning medical interventions in newborns and children should be avoided as much as possible and could only be justified in exceptional cases of sufficient medical indication,” wrote Dr. Graupner in his summary of the ruling. The petitioner commented, “For the first time in my life, I feel like I am being recognized as what I am, how I was born.” Agence France Presse English Wire, June 29; press advisory by Rechtskomitee LAMBDA, June 29.
Bermuda — On May 5, 2017, the Supreme Court of Bermuda (a trial court of superior jurisdiction) ruled in Godwin and DeRoche v. Registrar General,  SC (Bda) Civ (5 May 2017), that the prohibition of sexual orientation discrimination by the government in the Human Rights Act 1981 was violated by the state’s refusal to allow same-sex couples to marry. The government did not appeal the ruling and marriage equality went into effect. However, the decision was not popular with the public, and an organization calling itself Preserve Marriage Bermuda (PMB) was formed to mobilize opposition and make this a central issue in national elections, which were held on July 18, 2017, with a clear majority being elected to the Parliament that was opposed to same-sex marriage. After much debate and negotiation, Parliament passed the Domestic Partnership Act 2018 (DPA), which rescinded the right to same-sex marriage (although respecting those same-sex marriages contracted since the court’s decision), provided that same-sex marriages performed elsewhere would be treated in Bermuda as domestic partnerships, and created a domestic partnership institution for same-sex couples with what was purported to be an equal status to different-sex marriage. In other words, “separate but equal.” Intense lobbying took place to get the Governor General to withhold Royal Assent to the measure, but ultimately the British Government decided not to intervene and the GG gave assent on February 7, 2018, to take effect June 1, 2018. Meanwhile, litigation challenging the enactment was consolidated into a proceeding before Chief Justice Ian RC Kawaley in the Supreme Court. He missed the deadline by a few days, issuing his ruling in %Ferguson v. The Attorney General%,  SC (Bda) 45 Civ (6 June 2018), holding that the DPA is invalid, on June 6. The 52-page single-spaced slip opinion is extremely thorough, convoluted and complicated. Ultimately, the court acknowledged the binding effect of the Human Rights Act on the government, such that ordinary legislation could not simply reverse a decision of the Supreme Court construing the Human Rights Act. (The Human Rights Act in Bermuda is, by its terms, supreme almost in the way a constitutional amendment is in U.S. law.) Additionally, however, the court focused in on the Constitutional guarantee of freedom of conscience, and the clear evidence that religious motivations were behind the movement to overrule the prior decision. In his concluding section, Chief Justice Kawaley explained, “The Applicants were entitled to complain that their beliefs in same-sex marriage as an institution which deserves legal protection have been hindered and that those same beliefs have been treated by the DPA in a discriminatory manner. They have established that those protected fundamental rights have been contravened in a way that qualifies for judicial protection because Parliament’s legislative power may not validly be used to override the fundamental rights protected in Chapter I of the Constitution.” Judge Kawaley indicated that he would hear further from counsel “as to the form of the final Order and as to costs.” The decision could be appealed to the Court of Appeals, and since the present government was elected in part due to opposite to the court’s prior ruling, it would not be surprising if the government appeals it. That various “Applicants” challenging the DPA are represented by Mark Pettingill, Ronald Myers, Katie Richards, and Rod Attride-Stirling.
Brazil — The General Synod of the Anglican Episcopal Church of Brazil will now permit its clergy to perform same-sex marriages, as a result of revision to its canons. Brazil has allowed same-sex civil marriages since 2012, but it is up to religious bodies to decide whether they will perform the ceremonies. EpiscopalNewsService.com (June 4) reports that the Synod members voted 57–3 in favor of the change to the canons.
Canada — In the province of Alberta, people now have three options for specifying their gender on driver’s licenses and other identity documents, reported the Victoria Times Colonist on June 15. Since 2015, the province’s Human Rights Act has prohibited gender identity discrimination, and recently the government decided that this required it to allow those who don’t identify fully as male or female to be able to have an X as their gender marker on all vital statistics records for which gender is recorded, which will include birth and death certificates as well as identification records. Premier Rachel Notley also stated that the government is going to make it easier for people to change their gender identification in official records. This action makes Alberta “the fourth Canadian jurisdiction, including the federal government, to offer non-binary gender options on officials documents,” reported the %Colonist%. * * * Also in Alberta, Court of Queen’s Bench Justice Johnna Kubik ruled on June 27 against a motion for a preliminary injunction by the Justice Centre, representing a group of faith-based schools, parents and public interest groups who are opposed to a new law that forbids schools from informing parents that their children are participating in a Gay-Straight Alliance at the school. Justice Kubin found that the benefits to LGBTQ youth of being able to participate in such activities without their parents being informed outweigh any potential harm. She rejected the argument by plaintiffs that GSA’s are “ideological sexual clubs” and that the law violates parental rights under the Canadian Charter. “The effect on LGBTQ students in granting an injunction,” she wrote, “which would result in both the loss of supportive GSAs in their schools and send a message that their diverse identities are less worthy of protection, would be considerably more harmful than temporarily limiting a parent’s right to know and make decisions about their child’s involvement in a GSA.” John Carpenter, a lawyer for the Alberta government, said that he took particular issue with the Justice Centre’s characterization of GSAs as “secret societies. “You shall not out children. It’s as simple as that,” he said. Under the law, schools had until the end of June to file information with the government documenting their compliance with the law. Calgary Herald, June 28; StarMetro Edmonton, June 28.
Cayman Islands — Chantelle Day, a Cayman Islands lawyer, and her life partner Vickie Bodden Bush, a U.K. national, have filed a writ in the Grand Court seeking review of the government’s decision to deny their application to marry, reports CaymanCompass.com on June 20. They argue that Cayman’s Marriage Law, which defines marriage as between “one man and one woman,” is incompatible with the country’s Constitutional Bill of Rights, which guarantees the right to private and family life, the right to freedom of conscience and the right to be free from discrimination. They also invoke the European Convention on Human Rights, to which Cayman is a signatory through its territorial relationship with the U.K. The writ application asserts that Cayman Island residents are entitled to the same rights as other British citizens, and note that the U.K. (with the exception of Northern Ireland) and most of the U.K. territories now have marriage equality. The women are living in a committed relationship in London, where they are raising an adopted child together. They have lived in London because of the lack of protection for same-sex couples in the Cayman Islands, but they hope to return to Cayman to live. The law firm McGrath Tonner is representing them. Cayman Islands (in the Caribbean) is an autonomous British overseas territory with a population of about 61,000.
Costa Rica — Responding to a January ruling by the Inter-American Court of Human Rights on marriage equality and gender identity, President Carlos Alvarado issued a decree and directive on June 28 implementing the transgender portion of the ruling. He ordered all state institutions to modify anything that a transgender person wishes to change involving their name, picture, sex or gender identity, on such official documents as passports, driver’s licenses, diplomas, identification cards and the like. Any change must be made within five days of the request, and, as per the court’s opinion, does not require medical documentation. Although the court’s opinion was technically advisory, it is binding as a treaty obligation on all nations that acknowledge the court’s jurisdiction, which includes Mexico and all but a handful of the countries in Central and South America and Caribbean island states.
Czech Republic — The Czech Republic has been allowing same-sex couples to enter registered partnerships since 2006. Now dueling bills have been introduced in the parliament. One calls for opening up full marital status for same-sex couples, while the other seeks to adopt a formal definition of marriage as the union of one man and one woman, to be enshrined in the constitution. The same-sex marriage bill could be enacted by a simple majority; the constitutional amendment would require 120 votes in the 200-member house. A poll conduct in May showed about 50% public support for allowing same-sex marriages, with 74% support for the existing registered partnership option. Prime Minister Andrej Babis announced on June 22 that his government backs the proposed marriage equality bill, but it is uncertain when or whether the measure will come to a vote, as Babis’ party is running a minority government and new legislative initiatives await the formation of a new cabinet represented a coalition of parties. If the Czech Republic does adopt marriage equality, it will be the first eastern European country to legislate for this. Reuters, June 22.
Denmark — The government was reported to have launched an LGBT Action Plan to identify steps that can be taken to address issues of discrimination and to promote equal opportunity and security for the LGBT community.
eSwatini — The first Pride March ever held in this African country, previously known as Swaziland, took place on June 30, and U.S. Amnbassador Lisa Peterson told the press, “We are thrilled to see this happening today.” About 500 people turned up for the march in Mbabane, the country’s largest city. The country is Africa’s last remaining absolute monarchy, ruled by King Mswati III, who, according to a press account of the event, has “reportedly described homosexuality as ‘satanic’,” and the penal law outlaws male homosexual conduct. www.news24.com/Africa, June 30.
Hong Kong — On June 1, the Hong Kong Court of Appeal reversed a trial court ruling that had granted health benefits to the husband of a male civil servant, according to a report by VOANews.com (June 7). (The marriage took place in another jurisdiction, of course, since Hong Kong is not yet a marriage equality jurisdiction.) And on June 4, the government asked the Court of Final Appeal to reverse a decision by which the Court of Appeal ruled that the government had engaged in “indirect discrimination” when it refused to issue a visa to the same-sex spouse of a British lesbian. Thus far, the appellate courts in Hong Kong have affirmed the government’s argument that protecting “traditional marriage” requires refusing to extend legal recognition to same-sex relationships.
Hungary — A Hungarian LGBT rights group, Hatter Society, reports that the Hungarian Constitutional Court has ruled that an Iranian transgender man represented by Hatter Society is entitled to recognition of his gender and legal name change, despite the lack of legislation on this issue. The man arrived as a refugee in the summer of 2015, seeking asylum. Hungarian authorities found he had been persecuted in Iran due to his gender identity and recognized him as a refugee, but refused to issue new identity documents that would identify him as male or authorize a legal name change. The Hungarian authorities said that he would have to submit his request to Iran, and he sought judicial review. The trial court rejected his claim, but the Constitutional Court, in a decision published on June 21, found that it is an “unconstitutional omission” that there is no law for providing legal gender recognition and related name change for a person who is residing legally in Hungary. The unanimous decision states principles that theoretically apply to anybody seeking such a change, not just refugees from countries where it would not be practical to request it. The Constitutional Court set a deadline of December 31, 2018, for the government to enact appropriate legislation. There is a brief provision that was adopted in 2017, but, according to the Hatter Society press release, it “is unclear on both the requirements of legal gender recognition and the procedure to follow, and has been interpreted by authorities in an arbitrary manner.”
Ireland — The government has agreed to introduce legislation to allow same-sex couples to register both their names on their baby’s birth certificate and passport, %Irish Times% reported on June 26. Minister for Health Simon Harris will seek approval to draft a bill to that effect. At present, only those related biologically or by adoption are listed on birth certificates, even though the country has marriage equality. The proposed bill would allow for retrospective registration of same-sex couples on a child’s birth certificate and passport. Although the 2015 legislation enacted in response to a public referendum to allow marriage equality was supposed to provide same-sex couples with full parental rights, the parts of the bill dealing with donor-assisted reproduction and its legal consequences were never enacted, resulting in the inability of same-sex couples both to be registered as legal parents of their children. Previously in June, Prime Minister (Taoiseach) Leo Varadkar issued an apology on behalf of the State to gay men who had been criminalized due to their consensual sexual activity prior to sodomy law reform.
Jersey — Jersey, a self-governing republic in the English Channel that acknowledges the British sovereign but is not officially part of the U.K., has marriage equality effective July 1. According to a %BBC News% report (June 27), “The law has been in the works since 2015 but faced delays while the legislation was reviewed and religious groups invited to share their concerns and views.” At least twelve same-sex couples have been waiting for the law to take effect so they can marry, but the marriages will not take place until late in July because the new law extends the existing advance notice period from 15 to 25 days. The government rejected a request to include a “conscience clause” that would excuse companies with religious/moral objections to refuse to deal with same-sex couples. The current population of Jersey is estimated at about 100,000.
Mexico — Journalist Rex Wockner reported on June 21 that the city of Ensenada in Baja California State has decided to issue marriage licenses to same-sex couples without requiring them to get a court order. Instead, they can file a complaint with the State Human Rights Commission and then the city will allow them to marry. Although the Supreme Court of Mexico has now ruled in many cases that state laws limiting marriage to different-sex couples are unconstitutional, this does not create nationwide law under Mexico’s court system, as the definition of marriage is a state function. In some states, the legislatures have amended the laws or there have been sufficient appellate rulings so that same-sex couples can get marriage licenses without jumping through various judicial hoops, but in others a court order, called an amparo, must be obtained, which requires pointless litigation, since the judges are obligated to issue such orders in compliance with the Supreme Court’s rulings. Mr. Wockner’s blog maintains a current list of the marriage equality situation world-wide with particular detailed attention to the steady progress in the spread of marriage equality in Mexico, a particular point of interest for him since he lives in San Diego, just north of the border.
Northern Ireland — The Department of Justice announced that a law agreed by the Assembly in November 2016 came into effect on June 28, making it possible for people convicted of homosexual offences in Northern Ireland under long-repealed laws will be able to get their convictions expunged from police and court records. Northern Ireland legalized gay sex in 1982, 15 years after law reform in England and Wales. Expungement is not automatic; people will have to apply to the Department of Justice, which has opened up a space on its website with directions on how to proceed. Belfast Telegraph, June 28.
Philippines — The Supreme Court held oral arguments during June on a petition filed by lawyer Jesus Nicardo Falcis III, seeking a declaration that Family Code provisions limiting marriage to different sex couples violate the Constitution. He did not get a particularly affirmative reception from the judges, who expressed doubts that the matter was properly before them, and questioned why he had not initiated litigation in a trial court as opposed to filing a petition directly in the high court. Solicitor General Jose Calida, representing the government respondents, argued for dismissal, saying that the 1987 Constitution does not allow for same-sex marriage. Both parties were directed to file written memoranda of law within thirty days after the end of arguments on June 26. news.abs-cbn.com (June 26).
Poland — Poland’s Supreme Court ruled on June 14 that a print shop employee who refused to print banners for an LGBT business group because he did not want to “promote” gay rights had violated the law. This upheld a ruling by the Regional Court in Lodz, which held that under principles of legal equality the printer did not have the right to withhold services from the LGBT Business Forum. The Justice Minister, Zbigniew Ziobro, appealed that ruling to the Supreme Court, arguing that it was a violation of religious freedom, and he reiterated the point in a statement responding to the opinion, saying, “The Supreme Court has stood on the side of state violence in the service of the ideology of homosexual activists.” Well, yes. Poland is signatory to the European Convention of Human Rights, which has been construed to ban sexual orientation discrimination, although its principles depend for enforcement on national law. APNews.com, June 15.
Russian Republic — BBC International Reports (June 22) reported that Russia’s Constitutional court has ordered that an HIV positive woman’s rejected application to adopt a child be re-examined, citing Fontanka new website. The June 20 ruling came on an appeal by a couple whose request to adopt a 3-year-old child they are raising had been rejected because of the woman’s HIV status, reuyling on a provision of the Family Code. The court said that the Family Code provision is unconstitutional. The child was conceived through donor insemination and the use of a surrogate, the HIV-positive woman’s sister. The woman became infected with HIV and hepatitis C while undergoing treatment in a hospital. (Poor hospital sterility procedures have contributed significantly to the spread of blood-borne infections in Russia.) The Constitutional Court ruling stated that a court must not reject an application for adoption or fostering of “a child who on account of the already existing family relations is living with this person if it follows from the whole of the circumstances established by the court that adoption allows to legalize these relations and is in the child’s interests.”
South Africa — The Equality Court found that Pastor Oscar Bougaardt is in contempt of a settlement agreement he signed in 2014, by which he acknowledged that public statements he had made concerning gays and lesbian constituted hate speech and promised to refrain from future statements along similar lines. The court received evidence of articles and on-line postings by Bougaardt containing further hate speech. Since the 2014 settlement agreement had been adopted as a court order, Bougaardt was ruled to be in contempt by Judge Lee Bozalek of the Western Cape Equality Court. The court rejected the pastor’s defense that he was merely expressing his religious views and exercising his freedom of speech, and did not intend to incite hatred and harms towards gays and lesbians. Rejecting this defense, the court found that Bougaardt had gone beyond the bounds allowed under the court order, which said that he could not make comments about gays and lesbian that go beyond what the Bible actually says about homosexuality (which is very little and, depending how one interprets ancient languages, almost nothing). The comments in question by Bougaardt were a statement in a news article that “99% of paedophiles stem from homosexuality,” and an online statement in the comment section of a news website discussing Nigeria’s anti-gay laws, that homosexuals are an “abomination to God”, should be locked up in cages and that “they behave worse than animals in bed.” He also stated, “Homosexuals make me sick and I wish South Africa will deal with them like Nigeria.” In another on-line posting, he called on ISIS to come rid South African of homosexual curse.” The court sentence him to 30 days in prison, suspended for a period of five years. Thus, if Bougaardt refrains from spouting or posting hate speech against gays and lesbians for five years, he will avoid having to serve the prison time. AllAfrica.com English, June 15.
Taiwan (Republic of China) — President Tsai Ing-wen, who has supported legalization of same-sex marriage, faces charges that her government is dragging its feet, after the first anniversary of a Constitutional Court decision that gave the government two years to enact appropriate marriage equality legislation. Under the May 2017 court order, if new legislation is not adopted, same-sex marriage will automatically become legal without enabling legislation. Marriage equality advocates were hoping that the government would beat the deadline and have appropriate legislation in place. But the President remained non-committal in an interview published on June 25. When she was asked in an interview whether she planned to “push the issue,” she said that the government would “bridge the differences society holds on this issue in order to propose a comprehensive bill,” but saw a generational divide. “Same-sex marriage is also a reflection of the generational gap,” she said. “In Taiwan, those above 40 tend to have different views to those under 40.” She did say that the government recognizes the obligation imposed by the court’s decision. Straits Times, June 25.
Trinidad & Tobago — The High Court of Justice ruled on April 12, 2018, in Jones v. Attorney General, Claim No. CV2017–00720, that certain sections of the penal law are “unconstitutional, illegal, null, void, invalid, and are of no effect to the extent that these laws criminalize any acts constituting consensual sexual conduct between adults.” The lengthy opinion by Justice Devindra Rampersad runs almost 60 pages and ranges widely over the case law of numerous countries, grounding its ruling in the nation’s constitution and interpretations of similar constitutional provisions in many other jurisdictions having a similar common law heritage. Trinidad & Tobago is a twin-island Caribbean republic, originally colonized by Spain but becoming a British colony in the 19th century. It achieved independence in 1962 but continues as a member of the British Commonwealth, with a current population of almost 1.5 million.
Tunisia — A law revision commission appointed by President Beji Caid Essebsi to bring the legal code in line with the 2014 Constitution has recommended decriminalizing homosexual sex, and banning “anal tests” to determine whether a suspect is gay. Muslim religious leaders immediately announced their opposition to the proposal and such other as abolishing the death penalty, claiming that they would “eradicate Tunisian identity, by leaving the people without religion.” Tunisia is a majority-Muslim country, but President Essebsi’s goal is to establish a civil government along the lines of the 2011 revolution that overturned the rule of long-time dictator Zine El Abidine Ben Ali and led to the adoption of a modern constitution. Daily Mail, June 20.
United Kingdom — The U.K. is the loser in MB v. Secretary of State for Work and Pensions, Case C-451/16 (European Court of Justice, June 26, 2018). MB is a transgender woman, born in 1948, who married while still living as a man in 1974. She began to transition in 1991 and had sex reassignment surgery in 1995, remaining married throughout (and still today). MB applied for a certificate of recognition of her change of gender, but under the U.K.’s gender recognition statute, she would have to divorce her wife to obtain the certificate and, allegedly for religious reasons, they remain married, so she was denied the certificate. Under the U.K.’s national pension scheme, women born before 1950 are eligible for state pensions upon reaching age 60. (The age for men is 65.) Upon reaching age 60, MB applied, presenting herself as a woman, and was turned down because she did not have the gender recognition certificate. She sued in the English courts, losing at several levels, but the Supreme Court of the United Kingdom submitted to the European Court of Justice the question whether denial of the pension at age 60 violates European Union law. The Court’s answer is yes. To the Court, the issue of the certificate is not the crucial issue. Rather, said the court: “Persons who have lived for a significant period as persons of a gender other than their birth gender and who have undergone a gender reassignment operation must be considered to have changed gender.” The sex discrimination issue comes in, according to the Court, because “that marriage annulment condition does not apply to persons who have retained their birth gender and are married, who accordingly may receive a State retirement pension as from the statutory pensionable age for persons of that gender irrespective of their marital status. It appears, therefore, that that national legislation treats less favourably a person who has changed gender after marrying than it treats a person who has retained his or her birth gender and is married. Such less favorable treatment is based on sex and may constitute direct discrimination within the meaning of Article 4(1) of Directive 79/7.” The problem here is clearly transitional; now that the U.K. has marriage equality, there should be no need for transgender persons to divorce their existing spouses upon transitioning in order to get a gender recognition certificate. And we are informed that there is a legislative proposal to equalize the pensionable age for men and women. This opinion by the Court is an advisory opinion to the U.K. courts. Ultimately, one expects, MB will be entitled at least to five years of unpaid pension benefits as compensation
United Kingdom — The High Court has rejected a challenge to the government’s refusal to issue gender-neutral, so-called X, passports. Ruling in a suit brought by Christie Elan-Cane, Justice Jeremy Baker acknowledged Elan-Cane’s argument that under the European Human Rights Convention’s mandate of respect for private life, they had a possible claim, but the judge accepted the government’s argument that it had reasonable grounds for sticking with the current policy, including potential effect on other legislation, costs to change computer records, and increased need for consular support abroad for gender-neutral British citizens for whom an X passport might cause problems when traveling in countries that had not yet accepted the concept of gender neutrality. Baker noted in his decision: “The government is currently collecting and collating research material with a view to undertaking a comprehensive review of the issue both surround and those raised directly by the claimant in this case [who] will be entitled to scrutinize with care the results of the government’s current review, which will be required to be undertaken without any undue delay.” Elan-Cane was represented pro bono by the law firm Clifford chance, and is considering taking an appeal. The Guardian, June 22. * * *
The Supreme Court of the United Kingdom ruled on June 27 that a heterosexual couple, Rebecca Steinfeld and Charles Keiden, are entitled to register for a Civil Partnership under the 2004 legislation that was intended to provide a mechanism for legal recognition of same-sex couples. The court said that limiting civil partnerships to same-sex couples was incompatible with the European Convention on Human Rights, which forbids sex discrimination. The ruling, which overturns a judgment of the Court of Appeal from last February, is limited to the petitioners, who expressed the hope that the government will take action to open up the Act. There had been some speculation that with marriage quality there was no longer a need for the civil partnership status, but Steinfeld and Keidan insisted that there is still a place for an alternative to marriage. They have been a couple since 2010 and have two children, but they said that the “legacy of marriage” which “treated women as property for centuries” was not something they wanted for themselves. They described civil partnership as “a modern, symmetrical institution” which they thought would set a better example for their children. BBC.com, June 27.
United Kingdom — Prime Minister Theresa May, responding to a recent survey of LGBT people in the U.K., announced that the government will public an action plan on advancing the rights of LGBT people. Among other things, there have been demands that people who were persecuted under anti-gay laws should receive compensation, not just the formal apology that was already extended under a prior administration. LGBT rights leader Peter Tatchel stated that there were an estimated 10–20,000 gay men still living in the U.K. who deserve both an apology and compensation for convictions under anti-gay laws that have long since been repealed. May stated, “The survey results show we have more to do to improve the lives of LGBT people and make this a country where no-one feels they need to hide who they are.” Equalities Minister Penny Mordaunt will be in charge of coordinating the government’s effort. Press Association, June 26.