Women and Justice: Keywords

Domestic Case Law

Gilbert v. Country Music Association, Inc. United States Court of Appeals for the Sixth Circuit (2011)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

After the plaintiff-appellant, a theater professional who was openly homosexual, complained that a coworker had threatened him based on his sexual orientation and a union hiring hall of which the plaintiff was a member refused to provide him with work. Gilbert sued his union and a collection of various employers, alleging, among other claims, discrimination under Title VII of the Civil Rights Act. The district court granted the defendants’ motion to dismiss, holding that Title VII does not prohibit discrimination based on sexual orientation. The Sixth Circuit affirmed in part and reversed in part. The court observed that, while Title VII prohibits sex discrimination, and that this prohibition includes “sex stereotyping” whereby a plaintiff suffers an adverse employment action due to his or her nonconformity with gender stereotypes. The court held that Gilbert had not plead a sex stereotyping claim since other than his sexual orientation, the plaintiff fit every male stereotype, and sexual orientation did not suffice to obtain recovery under Title VII: “[f]or all we know,” the Court stated, “Gilbert fits every ‘male stereotype’ save one—sexual orientation—and that does not suffice to obtain relief under Title VII.”



Kalich v. AT&T Mobility United States Court of Appeals for the Sixth Circuit (2012)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The plaintiff-appellant sued his employer, AT&T, in state court under Michigan’s Elliott-Larsen Civil Rights Act, and AT&T removed the action to the United States District Court for the Eastern District of Michigan. The plaintiff alleged that his immediate supervisor made a series of sexually inappropriate comments to him over the course of a year that created a hostile work environment. These comments included calling him by a girl’s name and telling him he looked like a girl. The district court granted the defendant’s motion for summary judgment, and the Sixth Circuit affirmed, holding that the plaintiff failed to demonstrate that his supervisor’s conduct toward him was because of his gender. The appellate court noted that the plaintiff stated in his deposition that he believed that his supervisor made these derogatory comments because he knew or suspected that the plaintiff was gay and that sexual orientation discrimination was not a protected classification under Title VII or Michigan law.



De Lange v. Presiding Bishop of the Methodist Church of South Africa for the Time Being Constitutional Court of South Africa (2015)

Gender discrimination, LGBTIQ

After a Methodist Church minister (applicant) announced to her congregation her intention to marry her same-sex partner, the Methodist Church (respondent) suspended and subsequently discontinued her role as an ordained minister in early 2010. In March 2010, the applicant referred the matter to arbitration according to the Laws and Discipline of the Church. The parties could not agree on the applicant’s procedural rights and the arbitration convener proceeded with the process as provided by the Laws and Discipline of the Church. On her behalf, the convener then entered into a final agreement with the Church in May 2011. In 2012, the applicant approached the Western Cape High Court, Cape Town seeking an order to set aside the arbitration agreement in terms of the Arbitration Act. She contended that she was unfairly discriminated against on the basis of her sexual orientation. The High Court held that the applicant had not shown good cause to set aside the arbitration agreement. She then appealed to the Supreme Court of Appeal. The majority judgment of that Court agreed with the finding of the High Court. The applicant sought leave to appeal to the Constitutional Court. In a unanimous judgment, the Constitutional Court made four findings. First, the applicant had not shown good cause to set aside the arbitration agreement. Because the issue related to interpretation of religious doctrine, arbitration would be the appropriate forum. Second, since the applicant had unequivocally disavowed her unfair discrimination claim before the High Court, she was not free to raise the claim for the first time on appeal. Third, pursuant to the principle of constitutional subsidiarity, the applicant should have first brought her unfair discrimination claim to the Equality Court. Finally, the applicant failed to file a notice in terms of the Uniform Rules of the High Court, an omission that deprived other interested parties including religious communities of the opportunity to intervene as parties to the dispute or seek admission as amicus curiae in the High Court. The Court accordingly dismissed the appeal. 



National Coalition for Gay and Lesbian Equality v. Minister of Justice Constitutional Court of South Africa (1998)

Gender discrimination, LGBTIQ

The case concerned a referral for confirmation to the Constitutional Court of an order made by the Witwatersrand High Court. The referral sought to affirm that the following laws are unconstitutional and invalid (a) the common law offence of sodomy, and (b) the inclusion of sodomy in schedules to, inter alia, the Criminal Procedure Act 51 of 1977, which prohibits sexual conduct between men in certain circumstances. Although technically the Constitutional Court only had to decide on the constitutionality of the inclusion of sodomy in the schedules and of the section of the Sexual Offences Act, it could not do so without also considering the constitutionality of sodomy as a common law offence. The Constitutional Court found that the offences, all aimed at prohibiting sexual intimacy between gay men, violated the right to equality by unfairly discriminating against gay men on the basis of sexual orientation. Such discrimination is presumed to be unfair since the Constitution expressly includes sexual orientation as a prohibited ground of discrimination.



Public Prosecutor v. Various Parties Court of Appeal of Antwerp (2016)

Acid violence, Domestic and intimate partner violence, Gender-based violence in general, LGBTIQ

An 18-year old woman died from injuries sustained during acts of exorcism (involving use of boiling water, acid, and beating) carried out at the request of her parents by a healer, a few months after she told her mother that she had homosexual feelings. At first instance, the acts were qualified as torture, and the fact that the victim was in a particularly vulnerable situation (mentally and physically) was considered an aggravating factor. Both the healer and the parents were sentenced by the lower court to prison terms (based on Article 417bis and 417ter of the Penal Code (torture)), but the court held that any possible discriminatory motive based on sexual orientation (which it considered unproven anyway) could not affect the criminal qualification, because the Penal Code does not provide for discrimination as an aggravating factor for torture.  Contrary to the lower court, which qualified the acts as torture, the Court of Appeal did not qualify the acts as torture (as the intention of the defendants was not to punish the victim), but as blows and injuries intentionally inflicted without the purpose of manslaughter but leading to death under Article 401 of the Penal Code. In addition, the Court found that the aggravating factors included the failure to protect a vulnerable person (Article 405bis) and the fact that acts were committed by the parents of the victim had been the motive for the exorcism.  The healer and both parents were sentenced to jail.



Videckis v. Pepperdine University United States District Court for the Central District of California (2015)

Gender discrimination

Plaintiffs were women’s basketball players for Pepperdine University, a university receiving state funding from California. Plaintiffs allege that when the basketball coach became aware of their lesbian relationship, they were harassed and forced by the athletic coordinator to end their relationship or quit the team. Defendant motioned to dismiss, citing Plaintiff’s failure to state a claim upon which relief could be granted. The court denied the motion, determining that sexual orientation discrimination claims are a subcategory of gender stereotyping and are therefore actionable claims under Title VII and Title IX.



Roe v. Patton United States District Court for the District of Utah (2015)

Gender discrimination

Plaintiffs Kami and Angie Roe sued the Executive Director of the Utah Department of Health in his official capacity and sought a preliminary injunction seeking a court order to enjoin the defendants from applying sections of the Utah Uniform Parentage Act differently to male and female spouses of women who become pregnant via sperm donation. The provisions of the Utah statute provide that a married man can become the legal parent to a child conceived by his wife through sperm donation by filing mutual consent in writing, but defendants have declined to apply this same rule to a married woman in respect to her wife. Instead, they have required that she undergo a step-parent adoption process. The court balanced the failure of defendants to provide a rational basis for the unequal treatment with the fact that the plaintiffs and similarly situated wives would suffer irreparable harm if the injunction to compel the defendants to equally apply the statute was not granted. As such, the court granted the preliminary injunction.



Legislation

Law establishing a federal Center for the analysis of the migratory flows, the protection of the fundamental rights of foreigners and the fight against trafficking in human beings (Amendments to the Law of 15 February 1993) (2013)

Employment discrimination, LGBTIQ, Trafficking in persons

The Law of 15 February 1993 created the Centre for Combating Discrimination and Racism. Over the years, the scope of the Centre's anti-discrimination work expanded to include other forms of discrimination, like sexual orientation discrimination. In 2013, it was renamed the Interfederal Centre for Equal Opportunities and its mandate formally included the rights of foreigners and their humane treatment. In 2015, Myria (the Federal Migration Centre) split off to focus on human trafficking and protecting the human rights of migrants and foreigners. The Interfederal Centre was renamed Unia in 2016 and continues to focus on anti-discrimination and equal opportunity advocacy. Unia can take legal action in instances of discrimination based on race, sexual orientation, disability, age, religion, and other criteria of discrimination (e.g., health, wealth, political beliefs, physical characteristics, etc.). Myria may also take legal action on instances of discrimination within its mandate. More information about Unia, its work, and anti-discrimination resources is available on its website (information available in English, Français, Nederlands, and Deutsch). More information about Myria, its work, and anti-discrimination resources is available on its website (also in En, Fr, Ne, and De).


Anti-Discrimination Law of 10 May 2007 (2007)

LGBTIQ

The Anti-discrimination Law of 10 May 2007 prohibits discrimination (other than gender-based discrimination, which is the subject of the Gender Law) on the basis of several criteria, including sexual orientation. In line with the Gender Law, differences and positive action are only allowed under strict conditions and if justified by a legitimate aim. Victims, as well as the Centre for Equal Opportunities and Combatting Discrimination and Racism created by the Law of 15 February 1993, can take legal action. If the plaintiff produces facts that indicate that there has been discrimination, the burden of proof is on the defendant to demonstrate that there was no discrimination.