For LGBT Rights, 2018 Will Be the Year of the Courts
For LGBT Rights, 2018 Will Be the Year of the Courts
After everything that lesbian, gay, bisexual, and transgender people experienced in 2017 — from roundups and torture in Chechnya to antigay witch hunts in Egypt and Indonesia, closure of queer-friendly health facilities in Tanzania, and a concerted effort by the Trump administration to roll back equal rights in the United States — it seemed only fair that 2018 would start off with a small glimmer of hope.
What we didn’t expect was that hope would be served up from nearly all corners of the earth.
It started in India January 8 with an announcement from the Supreme Court that it would revisit section 377 of India’s Penal Code, which criminalizes consensual same-sex conduct. In 2013, a two-judge bench of the court took a giant step backward by reinstating section 377, reversing a celebrated 2009 Delhi High Court ruling that had invalidated the law as unconstitutional. In 2014, nongovernmental organizations filed what is known as a curative petition — a last-resort effort to challenge a Supreme Court ruling. And in 2016, five gay and lesbian Indians filed a writ petition, as individuals directly affected by the law, which prompted the Supreme Court to order a reconsideration of the 2013 decision by a larger bench, saying that the ruling was inconsistent with a recent ruling on privacy rights.
The court has sought the government’s view on the matter. Prime Minister Narendra Modi should stand up for India’s sexual and gender minorities and support decriminalization.
The day after the court order in India, the Inter-American Court on Human Rights delivered a remarkable two-in-one consultative opinion marking a giant leap forward for both transgender rights and marriage equality.
The opinion came in response to a May 2016 request from the government of Costa Rica, asking for clarification on its obligations under the American Convention on Human Rights with regard to transgender people who seek to change their name and gender marker in their official documents. Costa Rica also asked whether the convention’s equal protection and privacy provisions could necessitate creating a legal framework for recognizing the economic rights of same-sex couples.
The court emphasized its previous findings that any form of discrimination based on sexual orientation, gender identity, or gender expression violates the convention. Furthermore, to uphold the rights to privacy, nondiscrimination, and freedom of expression, the court said, countries must establish simple, efficient procedures that allow people to change their names and gender markers in official documents through a process of self-declaration, without invasive and pathologizing requirements such as medical or psychiatric evaluation or divorce.
The court further noted, “Recognition by the state of one’s gender identity is vitally important in guaranteeing trans peoples’ full enjoyment of their human rights, including protection against violence, torture and ill-treatment; the right to health, education, employment, shelter, and access to social security; as well as the right to freedom of expression and association.”
The ruling is poised to bring about a groundswell of change in Latin America, where most states that accept the jurisdiction of the Inter-American Court currently have no provisions at all for people to change their gender identity in official documents. Only a handful of countries, namely Argentina and Colombia, as well as Mexico City, provide for such change without significant hurdles, such as requirements for sex reassignment surgery or psychological evaluation beforehand.
With regard to same-sex couples, the court chose to go beyond Costa Rica’s query on economic rights. It assessed the steps countries need to take to ensure that same-sex couples benefit from all the same rights as different-sex couples. It concluded that true equal protection of the law could only rest on equal access to the institution of marriage itself. Even if a state established a legal framework for civil unions that guaranteed the same rights as marriage, the court said, the very existence of two separate legal frameworks — one only accessible to couples of different sexes — is a mark of inequality, an acknowledgment that the state values one type of relationship over another. Therefore, the court found, all countries must begin to take steps toward marriage equality.
The court emphasized that its opinion constitutes an authoritative interpretation of countries’ treaty obligations under the American Convention on Human Rights, applicable to all members of the Organization of American States.
Undoubtedly, some countries will reject the court’s opinion, but activists are already preparing to put it to the test. In Paraguay, for example, two couples announced that they plan to seek to register their marriages at the Civil Registry. If they fail, they plan to proceed to national courts and, as a last resort, the Inter-American Commission, which can refer cases to the Inter-American Court.
Two days after the Inter-American Court ruling, on January 11, the Advocate General of the European Court of Justice issued his opinion in a case pending before the court. The case involves a Romanian national, Adrian Coman, who married his American partner, Clai Hamilton, in Brussels in 2010. When the couple sought to move to Romania in 2012 under E.U. free movement rules, the Romanian authorities denied a residency permit to Hamilton on the grounds that it does not recognize same-sex marriages. Coman and Hamilton challenged the refusal, and the Romanian Constitutional Court referred the case to the European Court of Justice.
While not binding, the advocate general’s opinion last week was that E.U. countries should allow a same-sex spouse to live and work within their borders, even if their national law does not allow same-sex marriages. This bodes well for a positive outcome. The court will rule on the case later this year.
The new year has just begun, and there’s still more to come from courts around the world. In Namibia, courts will hear a case that bears resemblance to Coman and Hamilton’s. A Namibian man and his South African partner, who married in South Africa in 2015, are suing for marriage recognition so that the South African man, Daniel Digashu, can live in Namibia with his spouse, Johann Potgieter, and their 8-year-old adopted son. In Botswana, in March, a court will hear a constitutional challenge to a colonial-era law that, like India’s, prohibits “carnal knowledge against the order of nature,” and a similar decriminalization case is before the courts in Kenya.
Courts cannot always be counted on to deliver justice for LGBT people. Like all institutions, they are subject to bias, faulty logic, and societal pressures. Few courts take into serious consideration international law, which is increasingly clear on states’ obligations with regard to sexual orientation and gender identity.
But particularly where judiciaries are independent, politically neutral, and grounded in an understanding of and respect for international human rights law, they can provide a pathway to change. After a year in which the rights of sexual and gender minorities were under attack in much of the world, often in the name of religion or vaguely defined morality, courts may become a critical counterpoint in upholding equal protection and privacy rights.
NEELA GHOSHAL is a senior LGBT rights researcher at Human Rights Watch.