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LGBT And The Winds Of (Legal) Change

LGBT And The Winds Of (Legal) Change

2018 was predicted to be the ‘year of the courts’ as far as LGBT rights go. Seven months into the year, courts around the world have indeed come down with important rulings that help secure those rights. Their decisions show that judges in many countries, with a range of different legal traditions, have come to agree that LGBT people are legally entitled to equal treatment, dignity and fairness.

 

FSOG takes a look at some landmark appeals and rulings in LGBT rights related cases from all over the world.

Legal Changes For LGBT Internationally

Trinidad & Tobago

In April, a High Court held that the country’s sodomy laws, which criminalised homosexual conduct, were unconstitutional. The judge wrote, “This is not a case about religious and moral beliefs but is one about the inalienable rights of a citizen under the republican Constitution of Trinidad & Tobago; any citizen, all citizens. This is a case about the dignity of the person and not about the will of the majority or any religious debate.”

Lebanon

LLebanonSpecialAppealsCourt

Media reports indicate that the Mount Lebanon Appeals Court upheld in a July ruling the 2017 acquittal of nine people prosecuted for homosexual conduct. The Lebanese penal code bans sexual relations considered to be against nature, punishable by up to one year in prison. The appeals court reportedly ruled that this law should does not read as criminalising homosexual conduct. The ruling was hailed by Lebanese LGBT activists as the first such ruling by a Lebanese appeals court, following several similar lower court rulings.

Bermuda

BermudaSupremeCourt

 

The Supreme Court held in a June 6 ruling that sections of a recent law that revoked the right to same-sex marriage were invalid. They favoured “one set of beliefs about marriage over another”. Therefore they’re inconsistent with provisions in the Bermudan Constitution that guarantee the right to freedom of conscience and creed. The government has announced its intention to appeal.

 

 

Poland

Polish Supreme Court

A printer refused to print a banner for an LGBT organisation. Because he did not want, in his eyes, to “promote” the rights of LGBTQIA people.  The organisation took him to court. The state prosecutor defended the printer’s position. However, Poland’s Supreme Court in June upheld a lower court’s decision. It ruled that the printer could not refuse to provide his services to the organisation.

Ecuador

In two separate cases, one brought by a lesbian couple and the other by gay men, judges ruled against the Civil Registry’s refusal to allow them to marry. Both judges cited in their rulings the advisory opinion of the Inter-American Court of Human Rights from January stating that governments “must recognise and guarantee the rights that are derived from a family bond between two people of the same sex.” The two judges ruled that the Civil Registry’s refusal to allow the couple’s marriages constituted a violation of the rights to equality and nondiscrimination based on the sexual orientation of the contracting parties.

Chile

Chile Supreme Court

 

The president of the Supreme Court stated that the advisory opinion of the Inter-American Court regarding same-sex marriage rights is binding for Chile.

 

 

Europe

The European Union Court of Justice in Luxembourg ruled in June. It ruled that the term “spouse” in a directive on the exercise of free movement under E.U. law is gender-neutral. Therefore, it covers the same-sex spouse of an E.U. citizen. It stated, “the member states have the freedom whether or not to authorise marriage between persons of the same sex. However, they may not obstruct the freedom of residence of an EU citizen refusing to grant his same-sex spouse, a non EU Member State citizen, a derived right of residence in their territory.”

 

The E.U. Court of Justice ruling came from a case referred by the Romanian Constitutional Court about whether a gay Romanian-American couple were entitled to the same residency rights in Romania as other married couples in the European Union, even though Romania only recognizes civil partnerships rather than marriage between same-sex partners. Following the E.U. court ruling, the Romanian Constitutional Court ruled in July. It affirmed that same-sex partners in Romania must get the same E.U. residency rights as other married couples.  

Similarly, media reports indicate that in July an administrative court in Sofia, Bulgaria, decided that Bulgaria is not allowed to refuse a third-country national married to a European Union citizen of the same sex the right to live in Bulgaria even on the grounds that the Bulgarian law does not provide for marriage between persons of the same sex.

Netherlands

The Limburg district court of Roermond found in a June decision that the exclusive option of “male” or “female” on official documents, including birth certificates, is too restrictive. Therefore, the court referenced precedent in India and Nepal and concluded that self-identification prevails over bodily appearance or medical status. The court suggested the Dutch legislature initiate legislation to ensure that gender-neutral self-identification is provided for under Dutch law.

Hong Kong

The issue of granting a visa to a same-sex spouse, married elsewhere, also came up in HK. The administration refused to grant a dependent visa to the same-sex spouse of a British and South African national who was admitted to Hong Kong to accept a job.

The Court of Final Appeal of the Hong Kong Special Administrative Region ruled in July that the government can only refuse such a visa if it can provide  “particularly convincing and weighty reasons” to justify the difference in treatment between same-sex and different-sex spouses. Since the government could not meet this standard, the court passed a ruling. The same-sex spouse underwent discrimination  because of her sexual orientation.

 

India

In July, India’s Supreme Court began hearing a case that could strike down a 158-year-old colonial-era law. Section 377 criminalises same-sex sexual activity. Under Section 377 of the IPC, sex “against the order of nature” draws a jail term and a fine.

India’s government has declined to take a position on the decriminalization of gay sex, leaving the decision about whether to strike down the law entirely up to the country’s top court, requesting only that the court not address broader issues like equal marriage, inheritance, and adoption.

India has the second-largest population in the world, with more than 1.3 billion people. Very soon the Supreme Court shall rule on the issue. The eyes of the entire world remain trained on it.

Conclusion

In contrast, not all court decisions on LGBT rights in 2018 have been positive. For example, in Uganda in June, a court dismissed a case challenging the Uganda Registration Services Bureau’s refusal to register Sexual Minorities Uganda (SMUG), an organisation that has long defended the rights of LGBT people in the nation. The court agreed with the respondents that SMUG was promoting “illegal behaviour”. Most importantly, it contended that both its name and its objectives were prejudicial to the public interest.

Also read here about countries that will kill you for being LGBT.

Although we cannot always count on courts on to deliver justice for LGBT people. However, LGBT activists and allies are realising benefits of turning to the courts.  They feel Supreme Court’s the only place that recognises fundamental rights. Accepting the passivity of the lawyers who represent them; no longer an option . They want to see the right to equal treatment and nondiscrimination secured.

If the legislature is not yet ready to protect the rights of LGBT people, the courts can often help. Let’s hope, judiciary the world over upholds humanitarian rights of freedom and love among all, irrespective of race and gender.

Written by: Delshad Master

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