LeGaL’s June Roundup of LGBT Legal Developments in the World
By Professor Arthur S. Leonard. This article appeared in LGBT Bar NY’s LGBT Law Notes. Subscribe here!
Australia — Victoria’s legislature has approved a new law that will end the requirement that transgender people who get new birth certificates must divorce their spouses. This is an obvious change after Australia adopted marriage equality. % %, May 24.
Bermuda — With no ruling by the Supreme Court before the end of May, Bermuda’s new domestic partnership law, intended to supplant last spring’s marriage equality ruling by the court, formally went into effect on June 1. A challenge to the law was argued with hopes that there would be a ruling by the end of May, but there was not. Same-sex couples seeking to formalize their relationship can enter into domestic partnerships that carry most marital rights. A ruling by the Court was likely to take place imminently.
Bolivia — The Organization of Feminine Travestis, Transgenders and Transsexuals of Bolivia announced that it will file an appeal of a marriage equality case with the Inter-American Court of Human Rights, seeking a reversal of a negative decision by the Plurinational Constitutional Court in the city of Sucre against transgender marriage and adoption. %Agenia Boliviana de Informacion%
Canada — Bill C-66, which will expunge the criminal records of persons convicted crimes of sexuality that are no longer illegal, passed the Senate on May 30, and was expected to become law shortly. The bill was described by %Globe and Mail% (May 30) as “the direct result of Prime Minister Justin Trudeau’s apology in the House of Commons late last year to those who were criminally prosecuted or persecuted at work because of their sexuality.” Some activists criticized the measure for failing to expunge records of people arrested and convicted of “gross indecency” during police bathhouse raids in the 19970s and 1980s, after Canada had followed the U.K.’s lead in decriminalizing consensual gay sex. Courts had subsequently found that the police raids were illegal. Despite this flaw, advocates of the bill opposed sending it back to the House for amendment, which would delay passage, arguing that expungements of these records might be achieved through regulatory changes. Douglas Elliott, the out gay lawyer who led a project by Egale to obtain the legislation, said “It’s not a perfect bill, but it’s a very good bill.” Elliott is also litigating a class-action suit on behalf of thousands of public servants (both civilian and military) who were dismissed or harassed because of their sexuality. It is expected that the case will settle soon with compensation for individuals.
Chile — The Supreme Court approved a transgender person’s request to change their name and registered gender without reassignment surgery. Thus, Chile’s judiciary has brought the country into line with a recent ruling by the Pan-American human rights court. Legislation that would accomplish the same result for adults has been stalled in Congress, attributed to heavy lobbying against it by the country’s Roman Catholic Church leadership. Some conservative legislators indicated they could approve the bill so long as it did not apply to minors and teenagers. Law Professor Lorena Lorca was lead attorney for the lawsuit in which the anonymous plaintiff’s petition was granted. %Canadian Press%, May 31. * * * The new government has promised to comply with the agreement to bring in marriage equality that the former government had made with LGBT group Movilh to settle a complaint pending at the Inter-American Human Rights Commission. The agreement obligates the government to introduce marriage equality, gay adoption, anti-discrimination protections, to modernize gender identification policies, to repeal homophobic laws, and to implement related policies concerning education, health care, work and women, according to a summary prepared by Rex Wockner from reports in the Spanish-language press.
China — %Global Times% (May 14) reported that local government authorities in several regions of China stopped LGBT rights events that had been planned for the International Day Against Homophobia. The events were labelled as “illegal gatherings.” Although gay sex is not illegal in China, many public authorities are hostile to the LGBT community and seek to keep gay people and issues out of the public eye. * * * The %South China Post% (May 14) reported that Hong Kong’s top court had granted a transgender woman the right to marry her boyfriend. This is not a full-blown marriage equality ruling, but rather a recognition that a person identified male at birth who has fully transition should be able to marry in the gender in which she is living. The decision specifies that the marriage will have all the usual legal rights identified with marriage, including in inheritance and adoption.
Costa Rica — The Supreme Electoral Court approved a resolution that will allow people to change the name by which they are registered to accord with their gender identity, according to a May 15 %Associated Press% report. This means that the gender a person is registered with a birth will no longer appear on identity documents, seeking to avoid discrimination against those who have transitioned. The court said on May 14 that the procedure will be simple and free. This action responds to the Inter-American Court of Human Rights ruling earlier this year requiring Costa Rica to take the steps necessary to allow same-sex marriages. Legislative measures are still necessary for complete compliance with the court’s ruling.
Ecuador — The Constitutional Court ordered the Civil Registry Office to register a seven-year-old girl being raised by a lesbian couple with their last names, bringing an end to years of struggle to legitimize documents that were first filed with the Registry in September 2012, according to a May 30 report on %telesurtv.net%. Satya Amani Bicknell Rothon will finally be registered with the last names of her mothers, Helen Bicknell and Nicola Rothon. Satya is Nicola’s biological daughter. Judge Tatiana Ordenana stated in the court’s decision that all children being raised by same-sex couples should be allowed to be registered with both parents’ last names, regardless of the type of family they are coming from, according to the news report.
India — The appellate process moves slowly in India, but there were signs late in April of progress in the effort to get the nation’s highest court to focus on deciding the question whether a prior two-judge panel ruling upholding Section 377 of the Indian Penal Code (informally referred to as the sodomy law) should be reversed. On April 23 the court gave the government a week to disclose its stand on the constitutional validity of the law in response to several petitions that have been filed with the court by individuals and groups. A five-member bench will be considering a curative petition seeking to overturn that prior ruling, as well as the various petitions that have been filed more recently. On May 17, the Supreme Court agreed to hear a new petition filed by a group of twenty people — all current or former students of the Indian Institutes of Technology — calling for scrapping Sec. 377. This will be heard together with the other petitions new pending in the Court. The Indian press has been reporting frequently on the progress in the case, and there seems to be a consensus, at least among the nation’s media, that the failure to strike down the statute is an embarrassment.
Japan — Tokyo’s Nakano Ward announced on May 9 that it will start issuing certificates recognition same-sex partnerships beginning in August, becoming Tokyo’s third ward to adopt such a policy. Couples age 20 or older living together can apply for certificates after submitting sworn documents that include mutual support pledges as life partners. The other Tokyo wards that issue such certificates are Shibuya and Setagaya. Similar systems have been adopted in the cities of Sapporo, Naha, Iga and Takarazuka. There is a nascent marriage equality movement in Japan that has drawn inspiration from the adoption of marriage equality in the United States. %Kyodo News%, May 9.
Lebanon became the first Arab country to have a gay pride celebration in 2017. An attempt to hold another this year was cut short during the celebrations after its organizer was briefly detained, reported the %Associated Press% on May 15. Organizer Hadi Damien told the Associated Press that he was detained overnight for organizing Beirut Pride Week, which began on May 12. Authorities first tried to halt a theater reading on Monday, May 14, complaining that it was not approved by state censorship authorities. This led to Damien being summoned by the police and interrogated, and authorities asked him to sign a pledge to call off the rest of the festival’s scheduled events. Damien faced misdemeanor charges if he did not sign. The only gay pride celebrations in the Middle East that take place with the approval of authorities are in Israel.
Malta — Responding to a constitutional court ruling in favor of seven transgender prison inmates, the government announced it would not appeal the decision and would take steps to adjust prison conditions accordingly. Judge Silvio Meli, in a “strongly worded ruling” according to a report by %MaltaToday% (May 30), awarded the inmates each 5,000 euros in damages. Despite their female gender identity, they had been placed in a male section of the Corradino Correctional Facility where they were subjected to “inhuman treatment,” according to the court’s findings. The government stated that appropriate new procedures have been adopted for the treatment of transgender prisoners, and that it had undertaken gender diversity training for prison workers. An official statement indicated that “the government has also introduced a specific legal provision to ensure that inmates who are unable to change their legal documents in their home country are still able to be accommodated in prison according to their lived gender.”
Mexico — Even though the state of Baja California has not yet altered its laws to allow same-sex marriage, the city of Tijuana has issued licenses to same-sex couples recently without requiring them to obtain a court order (amparo). Baja state human rights officials were said to have persuaded the city hall staff not to insist on the empty formalism of an amparo, when it is clear under existing legal precedents that the trial courtis obligated to issue such orders upon application by qualified same-sex couples.
Nigeria — %The Sun% (Nigeria) reported May 30 that Benue State House of Assembly had approved a bill prohibiting marriage contracts or civil unions between same-sex couples. The bill is titled “Same Sex Marriage Prohibition Act 2018.” All places of worship in Benue State are prohibited from solemnizing such relationships. The Bill also prohibits the registration of Gay Clubs, Societies and Organizations, prohibits their meetings, and outlaws any public show of same-sex “amorous relationships” either directly or indirectly. Anyone who makes a forbidden same-sex marriage contract is subject on conviction to a term of 14 years imprisonment. The Speaker of the Assembly, Terkimbi Ikyange, stated that the measure was necessary to preserve the culture and tradition of the state.
Northern Ireland — Although public opinion polls show overwhelming majority support for marriage equality by the public, Northern Ireland’s persisting lack of a functioning government due to inconclusive election results and part squabbling preventing the formation of a governing coalition have so far blocked progress on a bill that had received majority support in the previous parliament but was blocked by the Unionist Party exercising its veto under the coalition agreement. Attempts to get the UK parliament to enact marriage equality for Northern Ireland in default of a functioning local government fell short in May. %PinkNews% (May 11) reported that a private member’s bill introduced by Labor’s Conor McGinn which was not formally opposed by Prime Minister May’s government was nonetheless blocked from a floor vote by objections from the Conservative MP. The proposal may be taken up again in the fall.
Pakistan — The House passed the Transgender Persons (Protection of Rights) Bill 2018 on May 8. The measure had previously been passed by the Senate. Transgender persons will be able to register to obtain drivers’ licenses and passports, and have the option to get their gender changed in the National Database and Registration Authority’s records. The measure prohibits harassment of people because of their gender identity, and prohibits discrimination in educational institutions, employment, trade and health services, and when using public transport or engaging in real estate transactions. %2018 Dawn%, 2018 WLNR 14119694 (May 9).
Portugal — President Marcelo Rebelo vetoed a bill that would have allowed persons as young as 16 to change their gender identity simply by providing evidence of parental consent, with no need for a medical report. The president said he thought that there should be a required medical report for minors to change their gender identity. Under Portugal’s Constitution, the legislature can make the requested changes, in which case the measure goes into effect, or it can attempt to override the veto. %AP Worldstream%, May 10.
Switzerland — The Swiss government has announced plans to modify the rules governing official recognition of gender transition with name changes, according to a May 25 report in the %Boston Globe%, which stated: “The Federal Council, Switzerland’s seven-member executive body, plans to cut through administrative red tape by making it possible for individuals to make a ‘simple declaration’ for the civil register. Current law requires applicants to appear for an administrative or court proceeding.” The government also plans to end the practice of terminating existing marriages automatically after a gender change. The government’s announcement of its proposal starts a public comment period that will run through September 30, followed by a parliamentary debate. In light of the usual legislative timetable, changes are unlikely to take place before 2020.
Thailand — Advocates for LGBT rights reported progress in securing legislation that will allow same-sex couples to form legally-recognized partnerships. They saw this as a “first step” towards marriage equality in the future. %The Nation% (Thailand) reported on Ap;ril 25 that a Justice Ministry subcommittee was working on a draft bill, and hoped to have it ready for adoption during the term of the present government. Work had begun on such legislation in 2012 in response to a petition by same-sex couples, but was interrupted by the military coup that took place in 2014.