In January, a colleague of mine at Human Rights Watch predicted that 2018 would be the “year of the courts” for LGBT people’s rights. 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 that LGBT people are legally entitled to equal treatment, dignity and fairness. Recent rulings in locales as diverse as Chile and Hong Kong show progress, and more are expected.
In April, a High Court in Trinidad & Tobago held that the country’s sodomy laws, which criminalized 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 TT; 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.”
In Lebanon, 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 found that this law should not be read as criminalizing 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.
In Bermuda, 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 because they favored “one set of beliefs about marriage over another” and were therefore 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.
In Poland, a printer refused to print a banner for an LGBT organization because he did not want, in his eyes, to “promote” the rights of lesbian, gay, bisexual, transgender, and intersex people. The organization took him to court. The state prosecutor defended the printer’s position, but Poland’s Supreme Court in June upheld a lower court’s decision that the printer could not refuse to provide his services to the organization.
In 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 recognize 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.
In Chile, 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.
In Europe, the European Union Court of Justice in Luxembourg ruled in June that the term “spouse” in a directive on the exercise of free movement under E.U. law is gender-neutral and therefore covers the same-sex spouse of an E.U. citizen. It emphasized that “although the member states have the freedom whether or not to authorize marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, 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 affirming that same-sex partners in Romania are entitled to 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.
The issue of granting a visa to a same-sex spouse, married elsewhere, also came up in Hong Kong. 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 ruled that the same-sex spouse was discriminated against because of her sexual orientation.
In the 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. 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.
In July, the Supreme Court of India began hearing a case that could strike down a 158-year-old colonial-era law that criminalizes same-sex sexual activity. Under Section 377 of the Indian Penal Code, 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 a 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. The Supreme Court’s ruling, expected soon, is highly anticipated in India and the rest of the world.
Of course, 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 organization that has long defended the rights of LGBT people in the nation. The court agreed with the respondents that SMUG was promoting “illegal behavior” and contended that both its name and its objectives were prejudicial to the public interest.
Courts cannot always be counted on to deliver justice for LGBT people, but LGBT activists and their allies are seeing the benefits of turning to the courts to get their fundamental rights recognized. They no longer accept the passivity of lawmakers who are supposed to represent them. 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.
Boris Dittrich is voormalig fractieleider van D66 in de Tweede Kamer. Sinds mei 2007 is hij werkzaam in New York als advocacy director seksuele minderheden voor mensenrechtenorganisatie Human Rights Watch. Naast zijn werk als advocacy director in het LGBT program van Human Rights Watch is Boris bestuurslid Prins Claus Fonds, bestuurslid Humanity in Action USA, lid Raad van Advies HIVOS, lid Raad van Advies Stichting Vluchteling en oprichter D66 afdeling New York.