By Professor Art Lenard
Australia — The Family Court of Australia ruled during March that it will no longer need to intervene in cases where teenagers who have been diagnosed with gender dysphoria have the permission of their parents and their treating doctors for surgery. Australia has been on the cutting edge of allowing minors to seek affirmation of their gender identity through medical needs. Not too long age court orders were required even to initiate hormone treatment. By dispensing with the need for judicial permission to perform gender affirmation surgical procedures on minors, Australia has reduced the barrier for those transgender minors whose parents and doctors are willing to support their transition. The law remains, however, that in the absence of parental approval, minors still need a court order to obtain hormone therapy or surgery. The ruling came in a case where the 16-year-old applicant was given the pseudonym of Matthew to preserve confidentiality. Matthew was identified female at birth but identifies as male, and had applied for court approval to proceed to the third stage of his transition — surgical treatment. The court found that its consent was not needed, as his doctors and parents agreed on his diagnosis of gender dysphoria, the surgery was deemed therapeutic, and he was competent to decide this question. %ABC Premium News%, March 16, 2018. * * * The Parliament in Australia’s Northern Territory has approved a bill to extend adoption rights to those in same-sex and de facto relationship of more than two years. NY is the final Australian jurisdiction to take this step. Northern Territory News, March 14.
Austria — The Constitutional Court, ruling in favor of an intersex petitioner, has interpreted the European Convention on Human Rights to require Austria to abstain from mandating that citizens register their sex with the government as either male or female. According to a news release hailing the March 14 ruling by LGBT rights group Rechtskomitee LAMBDA (RKL), “The Constitutional Court preliminarily stated that person have to accept only state sex assignments which correspond to their gender identity. The state has to accept individual decisions for or against a certain gender. The constitution protects individuals from heteronomous sex assignment, especially persons with alternative gender identity.” The ruling identifies intersex persons as a “particularly vulnerable group” due to their small numbers and their — from the perspective of the majority — “otherness.” The Court said that there is no constitutional obligation to register sex, but if the state decides to have a registration system, it must accommodate individual gender identity. The provisions now in force were found to be unduly rigid and violate rights of self-determination. The court also said that sex-assigning medical interventions in newborns and children should be avoided, so that individuals could make their own choice once they are old enough to appreciate the consequences and act independently. The government has been asked to respond to the Court’s preliminary ruling, with a final ruling expected not before June.
Brazil — Human Rights Watch reported on March 14 that the Supreme Court of Brazil issued a major decision removing medical and judicial criteria to change legal gender indications, holding that the government must drop the mandatory psychological evaluations and surgical procedures to obtain a judicial order from the Public Prosecutor in order to change the gender marker on their legal documents. This comes in response to the Inter-American Court of Human Rights advisory opinion of January 9, 2018, asserting that countries who are party to the Inter-American Human Rights treaty should establish fast, inexpensive and straightforward procedures to ensure legal gender recognition based solely on the self-perceived identity of the person.
Canada — Ruling on a discrimination claim by a gay worker subjected to derogatory remarks at his work site by employees of another company, the Supreme Court of Canada adopted a broad interpretation of the British Columbia Human Rights codes employment discrimination provisions, holding that liability was not limited to a plaintiff’s own employer, so long as the discriminatory conduct occurred at work. The case is British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62. The decision overruled a narrower interpretation of the Code by the B.C. Court of Appeal.
Costa Rica — The presidential election, scheduled to be held on April 1, provided plenty of suspense over whether the Inter-American Court of Human Rights’ decision earlier this year that the Pan American Human Rights Treaty to which Costa Rica is a party requires it to allow same-sex marriages. This was because one of the finalist candidates, Fabricio Alvarado Munoz, was so opposed to marriage equality that he proposed to reject the jurisdiction of the court in order to avoid implementing the ruling. The other finalist candidate, Carlos Alvarado Quesada, supported the ruling and was committed to implementing it. Polls predicted a photo finish, but in the event, early returns confirmed that Carlos Alvarado had won by a veritable landslide. So it seems likely that Costa Rica will have marriage equality before too much longer. New York Times, April 1.
European Parliament — On March 1 the European Parliament adopted its Annual Report on the Situation of Fundamental Rights in the EU. The Parliament’s Intergroup on LGBT Rights stated that the Report “contains strong content on LGBTI rights, condemning all forms of discrimination against LGBTI people” in Paragraph 62. Also, for the first time, it puts the European Parliament on record as opposing conversion therapy.
Finland — The Parliament approved a measure at the end of February — the Maternity Act — which improves legal protection for children being raised in LGBT families. Among other things, it will give automatic legal co-parent status for female same-sex couples who have children through donor insemination. As of now, adoption proceedings, which can be drawn out and expensive, are necessary to secure parental rights for the non-biological mother. The new law is expected to come into force in the spring of 2019.
Ireland — HIV Ireland hailed a High Court decision that an HIV-positive teenage who is living under the care of the Child & Family Agency may not be compelled to disclose his HIV status to a girl he is dating who is also under the Agency’s care. The 18 year old has been HIV-positive since birth. The court decided that the circumstances did not warrant authorizing the Agency to make the disclosure to the girl without the boy’s consent. Niall Mulligan, a spokesperson for HIV Ireland, explained, “Forcing someone to disclose they are living with HIV only perpetuates the stigma that currently exists in Ireland. HIV is a manageable illness. We know people living with HIV, who are compliant with their treatment, and have an undetectable viral load that cannot pass it on to someone else. The onus is on all of us to take responsibility for our own sexual health. We encourage everyone to use condoms, to avail of regular sexual health testing and to be informed of the risks involved in having unprotected sex.” Mirror (UK), March 13.
Kenya — The Court of Appeal in Mombasa issued an opinion on March 22 finding that the Bill of Rights of the nation’s constitution makes it unconstitutional for the police to subject people suspected of being gay to intrusive and nonconsensual anal examinations, purporting to determine whether there was physical evidence of sodomy. Wrote the court, “The right to privacy particularly, not to have one’s privacy invaded by an unlawful search of the person, is closely linked to the right to dignity. Those rights, in our view, extend to a person not being compelled to undergo a medical examination.” The court cast doubt on whether consent purportedly obtained (under duress) could be credited. The court granted Orders setting aside a trial court decree rejecting the challenge to the testing, finding that “the Respondents conduct in subjecting the petitioners to anal examinations violated the Petitioners’ rights under Articles 25, 27, 28 and 29 of the Constitution,” ordering that “the use of evidence obtained through anal examinations of the petitioners in criminal proceedings against them violates their rights under Article 50 of the Constitution,” and awarding costs of the appeal to the litigants.
Northern Ireland — Without a functioning Parliament as a result of no party achieving sufficient numbers to form a governing coalition, and negotiations stymied over, among other things, the Democratic Unionist Party’s refusal to allow the legislative majority to approve marriage equality, pressure is mounting for a judicial solution to the marriage equality question or action by the U.K. Parliament in London, which theoretically retains the legislative authority to pass a marriage equality law for Northern Ireland. An appeal is pending in the courts in a marriage equality case, which could be a vehicle for achieving this goal, but meanwhile some members of Parliament are introducing private member bills seeking the same result. In the House of Lords, Conservative peer Lord Hayward tabled the Marriage (Same Sex Couples)(Northern Ireland) Bill on March 27, with Labour MP Conor McGinn introducing an identical bill in the House of Commons on March 28. There was a formal first reading of Hayward’s bill, but no indication when it might come to a vote. Commentators suggested that passage of a bill through Parliament was unlikely, as it might unravel all kinds of compromises and arrangements for the degree of self-government in Northern Ireland that underlies the fragile power-sharing relationship between rival factions there. In the lawsuit, a panel of three appeal judges heard arguments in March, and Lord Chief Justice Sir Declan Morgan “pledged to deliver a verdict as soon as possible,” reported the Belfast Telegraph on March 16. The litigants have been allowed to proceed anonymously to protect their privacy. The couple, who married in the U.K., are seeking a ruling that their marriage must be recognized as such in Northern Ireland and, indeed, through the United Kingdom.
Pakistan — In a ceremony held at the Traffic Police Headquarters in Khuber Pakhtunkhwa Provine, there was a celebration to mark the first award of driver’s licenses to transgender Pakistani’s indicating their correct gender identity. Thirty transgender people received the new licenses. No person was forced or asked to change their legal documents in order to receive the national driving license, according to an online report by %Right Vision News%, March 7. * * * Pakistan’s Senate has approved a Transgender rights bill that is intended to assure protection against sexual and physical assaults and harassment motivated by the victim’s transgender status. The Transgender Persons (Protection of Rights) Bill 2017 still needs approval in the lower house before it can become law.
Philippines — The Supreme Court set June 19 as the date for oral arguments on a petition seeking legalization of same-sex marriages. The petition, filed by members of the LGBTS Christian Church, challenges Family Code provisions standing in the way of same-sex marriages. President Rodrigo Duterte has stated public support for legalization.
Romania — The Associated Press (March 26) reported that Liviu Dragnea, leader of the ruling Social Democratic Party, has called for the country to consider legalizing civil partnership between same-sex couples. Dragnea also stated that the Parliament would vote on a proposal to hold a referendum on changing the Constitution’s definition of a family, to take account of families headed by same-sex couples.
Sweden — The Swedish Parliament voted on March 21 to pay compensation to transgender people who were forcibly sterilized between 1972 and 2013. The measure affects approximately 600–700 people. According to a statement released by RFSL, a Swedish LGBT rights group, “Sweden has a long history of forced sterilization of different vulnerable groups. In the 1990’s, the Swedish state paid damages to other groups subjected to forced sterilizations. Trans people will be the last group to now get compensation and restitution.” The organization stated a hope that the government will also hold a ceremony to extend a formal apology to transgender people who were subjected to this procedure.
United Kingdom — The England and Wales Court of Appeal ruled on March 22 that a statutory exception from the Equality Act’s discrimination provision for religious organizations required rejecting an employment discrimination lawsuit by Jeremy Pemberton, a Church of England priest who was prevented from taking a position as a chaplain at a religious hospital because he married a same-sex partner. Wrote Lady Justice Aplin in explanation of the decision: “If you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be. Not all opposition of interests is hostile or offensive.” The Guardian.
Each month for the last 40 years, the LGBT Bar Association of New York publishes LGBT Law Notes, the most comprehensive monthly publication covering the latest legal and legislative developments affecting the LGBT community here and abroad.
Art Leonard is the Robert F. Wagner Professor of Labor and Employment Law at New York Law School and the Editor of LGBT Law Notes