2018: A year of international judicial progress in LBGT+ rights

by | Oct 21, 2018

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About Schona Jolly QC and Nathan Roberts

Schona Jolly QC is a barrister specialising in equality, human rights, employment & international law. She is at Cloisters Chambers and the Vice-Chair of the Bar Human Rights Committee.

2018 has seen a flurry of activity in the advancement and development of LGBT+ rights in the international sphere. An exhaustive review of international LGBT+ rights would be beyond the scope of any single piece: the international landscape is far from homogenous; different countries and regions operate with different legal and social starting points. This series of blogs seeks to take a snapshot of where we are in 2018 as a result of some recent significant decisions across the Americas, Europe and India. It considers the relationship between judicial action and public reaction, and the portents for change in light of recent decisions.

LBGT+ Rights in The Americas

A landmark advisory opinion by the Inter-American Court of Human Rights (IACtHR) in January 2018, held that same-sex marriage was a human right, relying in particular on arts 1 (enjoyment of rights without discrimination), 11 (right to privacy), 17 (rights of the family) and 24 (equal protection) American Convention on Human Rights.

The Court found  that equivalent legal protections to marriage, such as civil partnerships, do not offer sufficient protection as they serve to differentiate and therefore to stigmatise same-sex relationships. The Court also adopted a regionally radical position in respect of legal gender recognition, declaring that the Convention assured a right to change one’s name, photograph and official records in relation to sex.

This decision has altered dramatically the regional landscape. Given that only five out of the twenty three states in which the Convention is ratified have recognised same sex marriage (whether partial or full), the ramifications could be very significant. The question now is how this advisory opinion, which expressly encouraged member states to take the appropriate administrative and legislative steps to give effect to it, is rolled out and relied upon by states, domestic courts and LGBT+ activists in advancing protection. The decision is not binding per se, but, pursuant to the theory of conventionality control which was developed by the Court itself, signatory states are obliged to follow it when interpreting the Convention. At the very least, even if the opinion does not persuade governments to amend their laws, it gives lawyers the ability to challenge decisions before domestic courts.

The initial public reaction in the referring country, Costa Rica, was reported to have been hostile; but President Carlos Alvarado Quesada, who took office in May 2018, has announced his intention to support the Court’s opinion and to deliver marriage equality, as has Panama’s Vice-President.

The IACtHR decision was, no doubt, welcomed by LGBT+ activists in the Caribbean, where homosexual relations remain illegal in many countries. Many Caribbean countries are not, however, signatories to the American Convention. Trinidad and Tobago in fact denounced the Convention with effect from 1999.

A recent judgment, however, has provided some cause for optimism. In April 2018, in Jones v AG of Trinidad and Tobago, the Trinidadian High Court held the Sexual Offences Act 1986 to be unconstitutional insofar as it criminalised consensual same-sex relations. The so-called ‘buggery law’ was an offence dating from British rule and liable on conviction to imprisonment for 25 years; all other same-sex sexual acts attracted imprisonment for five years. The High Court had “no doubt” that the Act infringed the homosexual claimant’s fundamental rights, including his right to respect for a private and family life, his right to equality before the law and the protection of law, and his right to freedom of thought and expression.

The Trinidadian government’s purported objectives primarily of “maintaining traditional family and values that represent society” were not held to be sufficiently important to justify the limitation of the claimant’s fundamental rights. The Court observed that traditional family values must be adapted to “a different world” from “medieval and Victorian times” and that the values that represent society have “dramatically changed as democratic societies have now moved to accept that laws such as these under scrutiny are no longer necessary”. The government has announced its intention to appeal to the Privy Council. Whether it does so, and if it does, what the Privy Council concludes, will be of particular interest to those countries that remain under the Privy Council’s jurisdiction.

Across in Bermuda, which is not a signatory to the American Convention on Human Rights, the tension between judicial action and public reaction is reflected in somewhat turbulent recent developments. In 2017, in Godwin & Others v Registrar General – Government of Bermuda, the Bermuda Supreme Court ruled that legislation limiting marriage to opposite-sex couples was inconsistent with section 5 of the Human Rights Act 1981, which prohibits discrimination in the provision of goods and services. The judgment had followed a similar one in 2015 striking down legislation that discriminated against same-sex couple adoption: A & B v Registrar General – Government of Bermuda [2014]. The Court concluded that arguments based on heterosexual procreation and the marriage’s integral role in child raising were “historic and insular”; the narrow definition of marriage was “out of step with the reality of Bermuda in the 21st century”.

However, a new government was elected shortly after the Godwin judgment and, in January 2018, it banned same-sex marriage introducing civil partnerships instead. This was justified by the government on the grounds that it achieved a balance between the norms of a socially conservative island and the rulings of the European Court of Human Rights (ECtHR) (the ECHR has legislative force in Bermuda under its Human Rights Act) which seek to protect same-sex couples, but do not go so far as to recognise a freestanding right to same-sex marriage (Schalk and Kopf v Austria; Chapin and Charpentier v France).

This approach was not good enough in Bermuda: in June 2018, five days after the legislation banning same-sex marriage came into effect, the Bermudan Chief Justice overturned it in Ferguson v Attorney-General of Bermuda. By that judgment, same-sex marriage was declared to be not simply a right under human rights legislation, but a constitutional right. The judgment found that section 8 of the Bermudan constitution, protecting “freedom of conscience”, and section 12, protecting freedom from discrimination in respect of “creed”, were both violated by the prohibition on marriage. Neatly sidestepping the ECtHR’s dilemma, the Bermudan Court did not consider itself persuaded by Strasbourg case law, since Bermuda does not have the equivalent of article 12 ECHR (the right of men and women to marry). The Bermudan government is considering an appeal.

This is the first in a series of weekend pieces on global LGBTQ+ rights from Schona Jolly QC and Nathan Roberts. 

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