Women and Justice: Topics: LGBTIQ

Domestic Case Law

Mukasa and Oyo v. Attorney General High Court of Uganda (2008)

LGBTIQ

Here, the Court held that government officials violated the constitutional rights of the plaintiff by illegally raiding plaintiff’s home without a search warrant, seizing plaintiff’s documents related to her work as an advocate for the human rights of LGBTQ persons, and illegally arresting a guest present at plaintiff’s home during the raid. Later, at the police station, plaintiff’s guest was forcibly undressed and fondled to “determine” her sex. The Court held that plaintiff and plaintiff’s guest were treated in an inhuman and degrading manner amounting to sexual harassment and indecent assault.



Attorney General of Botswana v. Rammoge Court of Appeal (2016)

LGBTIQ

The Court of Appeal held here that the Department of Civil and National Registration’s refusal to register Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) was an unjustifiable limitation of its members’ rights. The Court of Appeal held that the right to form associations to advocate for legal change is a fundamental component of the right to freedom of assembly and association, and it dismissed the Department of Civil and National Registration’s argument that LEGABIBO’s objectives were contrary to public morality and would encourage the commission of criminal offenses. In its holding, the Court of Appeal protected the right of LEGABIBO and other LGBT advocacy groups to promote the rights of LGBT individuals and to lobby for legal reform. 



Motshidiemang v. Attorney General Botswana High Court of Botswana (2019)

Gender discrimination, LGBTIQ

Here, the High Court of Botswana held in a unanimous opinion that Section 164(a)/(c), 165, and 167 of the Botswanan Penal Code were unconstitutional. These sections criminalized same-sex relations. The Court held that 164(a)/(c), 165, and 167 violated Sections 3 (liberty, privacy, and dignity), 9 (privacy), and 15 (prohibiting discrimination) of the Botswanan Constitution. The Court modified Section 167, which criminalized the offence of gross indecency, to remove reference to private acts. The case overturned Kanane v State.



Decision No. 16-0357: Sentencia Familia Homoparentales por reproduccion asistida El Tribunal Supreme de Justicia (Venezuela Supreme Court of Justice) (2016)

Gender discrimination, LGBTIQ

The plaintiff, a female Venezuelan citizen married to a female Venezuelan citizen, got married in Argentina, where LGBT marriage rights are fully granted to homosexual couples.  In the following years, they tried to validate their marriage in Venezuela through a judicial homologation process. Such homologation was denied on the basis that the marriage regulations in Argentina did not comply with the provisions of Article 44 of the Venezuelan Civil Code, which regulates marriage rights in Venezuela and provides that “marriage cannot be entered into except between one single man and one single woman.”  Thereafter, the couple conceived a child through the assisted reproduction method in Argentina, who was born and presented for registration as their son in Argentina.  Immediately after the baby was born, the couple moved back to Venezuela, where they tried to present the newborn as their son to the Venezuelan competent authorities, requiring that the baby carried the surnames of both mothers.  The registration was denied.  The couple introduced a complaint before the competent court and the judge decided the registration of the boy was inadmissible.  The plaintiff appealed this decision until it reached the Constitutional Chamber of the Supreme Court of Justice (“TSJ”), Venezuelan’s highest judicial body, which decided to annul the decision of the lower court.  The TSJ overruled the lower court’s decision on the basis that the decision violated the plaintiff’s right to present the child as an LGBTIQ couple’s child.  Likewise, the TSJ stated that this action violated the child’s constitutional right to have an identity.  The TSJ final decision was to allow the registration of the child with both mothers’ surnames.  



J.M. v. Q.F.G. and G.K. Anti-Discrimination Tribunal Queensland (1997)

Abortion and reproductive health rights, Gender discrimination, LGBTIQ

The complainant was a woman in an exclusive lesbian relationship for four years. The complainant and her partner wanted to have child but learned that donor insemination in Queensland would not be available for them, so the complainant traveled out of state to seek this treatment. She found the experience to be emotionally and financially draining, so she stopped the treatment. Thus, the complainant decided to try and ask the clinics in Queensland for the donor treatment. She found a clinic at which the respondent was a director. She obtained a referral from her general practitioner and scheduled an appointment with the respondent. At the appointment, the complainant informed the respondent that she was in a long-term lesbian relationship.  The respondent’s position was clear that the clinic only provided treatment to heterosexual couples with infertility problems. Nevertheless, he requested blood tests of the complainant which showed that her ovaries were functioning normally and proceeded to give her a form to fill out and sign for herself and her “husband” in order to start the treatment. The complainant asked the respondent if she could fill only the wife part and sign, but he insisted that it should be signed by the husband.  Since this was not possible in her case, the respondent refused to provide her with the treatment. The claimant then sought treatment outside Brisbane for a while without success. The claimant had a baby by private donation, ultimately bearing risks of possible HIV infection of the semen. The claimant suffered emotional distress from humiliation and discrimination based on her sexual orientation, in addition she had to defer her university degree for all the time she had to spend traveling to clinics outside Queensland. Subsequently, the claimant filed this claim before the Anti-Discrimination Tribunal seeking compensation from the respondent and his clinic. The respondent argued that there was an agreement with the government on artificial insemination by donation in relation to treatment of infertility, and that treatment is to be provided only to heterosexual couples. The Tribunal confirmed that there was no such agreement in place. The respondent also argued the definition of infertility only describes the incapability of heterosexual couples of conceiving because of medical reasons caused by one or both of them. The Tribunal also refused this limitation of the definition and held that the fact that scientifically two females are incapable of conceiving a child is a medical reason that makes them eligible for the same treatment as any heterosexual couple seeking this treatment. Accordingly, the Tribunal found the act of the respondent to be discriminatory against the complainant because she is a lesbian, which is unlawful under the Anti-Discrimination Act 1991, and ordered the clinic to pay the claimant a compensation sum for the humiliation and offence she suffered.



Direct Action of Unconstitutionality (ADI) 4275 Supremo Tribunal Federal (Supreme Federal Court of Brazil) (2009)

Gender discrimination, LGBTIQ

Brazil’s Supreme Court decided by a majority that transgender individuals could change their legal name and gender marked in the civil registry. The court stated that this does not require psychological evaluation, hormonal treatment, transition surgery, or any other medical procedure. The court recognized the right of transgender persons to change their civil registry without gender change or even judicial authorization. All the justices of the court recognized the right and the majority understood that no judicial authorization is necessary of the amendment.



Z.D.C. v. E.M.S. Rechtbank van eerste aanleg te Antwerpen (Court of First Instance in Antwerp) (2017)

Domestic and intimate partner violence, LGBTIQ

The two accused were prosecuted for invading the home of the two victims and assaulting them, which temporarily prevented the victims from being able to work. The first accused organized the crime because she could neither accept the breakup with one of the victims nor the fact that the victim was in a relationship with a man. Additionally, the first accused created a false Facebook profile to make fun of one victim’s sexual orientation and to convince one victim to break up with the other. The Court found that the motive of the crime was, among others, the sexual orientation of the victims, which is an aggravating circumstance of the assault. The Court found that the facts regarding the first accused had been clearly established. However, the interrogation and the investigation did not provide the court with enough evidence to hold the second accused criminally liable. The Court convicted the first accused and imposed a sentence of three years imprisonment and a fine of EUR 100.00 (increased with the multiplication factor of 50, i.e., in total EUR 5000), but suspended for five years if the accused complied with the terms of probation.



Public Prosecutor v. S.C. Rechtbank van eerste aanleg West-Vlaanderen afdeling Brugge sectie correctionele rechtbank (Bruges Criminal Court) (2018)

Gender-based violence in general, LGBTIQ

The accused was prosecuted for assaulting a trans woman and her partner for being transsexual. The accused confessed to calling the victim and her partner “dirty transsexuals” and assaulting them. Following the assault, a doctor determined that the victim was unable to work. The Court found that the facts were uncontested and therefore proven. According to the Court, the accused showed a lack of respect for social norms and the physical integrity of other human beings. Additionally, the Court found the punishment should reflect that the crime was based on the victim’s transsexual status and that the punishment should serve to have a strong deterrent effect. The court convicted the accused and imposed a sentence of  six months imprisonment and a fine of EUR 100.00 (increased with the multiplication factor of 50 (i.e., in total EUR 5000))which would be suspended during three years if the accused obeyed the terms of probation.



Smith v. City of Salem United States Court of Appeals for the Sixth Circuit (2004)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The plaintiff-appellant a trans woman lieutenant in the Salem, Ohio, Fire Department, sued the City of Salem, alleging discrimination based on sex in violation of Title VII of the Civil Rights Act. According to the plaintiff’s complaint, after she began expressing a more feminine appearance at work on a full-time basis, her co-workers informed her that she was not acting masculine enough. She then notified her immediate supervisor that she had been diagnosed with gender identity disorder and that she planned to physically transition from male to female. The plaintiff’s supervisor met with the City of Salem’s Law Director and other municipal officials, who required the plaintiff to undergo three psychological evaluations. The plaintiff retained legal counsel, received a “right to sue” letter from the U.S. Equal Opportunity Employment Commission, and was shortly thereafter suspended for one 24-hour shift, allegedly in retaliation for retaining counsel. The district court dismissed his complaint, but the Sixth Circuit reversed and remanded, holding that the plaintiff sufficiently plead a prima facie case of retaliation under Title VII, as well as claims of sex stereotyping and gender discrimination.



Barnes v. City of Cincinnati United States Court of Appeals for the Sixth Circuit (2005)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The plaintiff-appellant, a trans (“a pre-operative male-to-female transsexual”) police officer, applied to be promoted to sergeant within the Cincinnati Police Department. The plaintiff passed the sergeants exam but failed a rigorous training program and was denied promotion. The plaintiff sued the City of Cincinnati, alleging that the denial of her promotion was due to sex-based discrimination and failure to conform to male sex stereotypes, such as wearing makeup, in violation of Title VII of the Civil Rights Act and the Equal Protection Clause. The district court ruled in favor of the plaintiff and awarded her $320,511 as well as attorney’s fees and costs. The Sixth Circuit affirmed, holding that the plaintiff met all four requirements of a claim of sex discrimination: that the plaintiff is a member of a protected class, that she applied and was qualified for a promotion, that she was considered for and denied a promotion, and that other employees of similar qualifications who were not members of the protected class received promotions.



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.



Chairperson of the Immigration Selection Board v. E.F. and Another Supreme Court of Namibia (2001)

Gender discrimination, LGBTIQ

The respondent, a German national, was denied permanent residence in Namibia despite being in a committed relationship with a Namibian woman, residing in Namibia for many years, and having a highly skilled job in Namibia. The respondent claims that the only reason her application was denied is because she was a lesbian woman in a homosexual relationship. She therefore filed suit against the Immigration Selection Board (“ISB”), arguing that it had discriminated against her in denying her application. The lower court found in favor of the respondent and ordered the ISB to grant the respondent’s application. On appeal, the Supreme Court reversed the decision, finding that the respondent had not proven discrimination and that the ISB had wide discretion to deny applications. However, the Supreme Court judge explicitly stated: “I must emphasize in conclusion: Nothing in this judgment justifies discrimination against homosexuals as individuals, or deprive [sic] them of the protection of other provisions of the Namibian Constitution.”



Causa Nº 4.792/13 Ex Juzgado de Instrucción Formal Quinta Nominación (2014)

Domestic and intimate partner violence, Femicide, Gender discrimination, LGBTIQ

Defendant Mr. H.R.A was convicted of aggravated homicide based on his prior ties and relationship with the victim, Ms. N.A. (his partner), whom he murdered with a gun.  Mr. H.RA. was sentenced to life in prison pursuant to Law No. 26,791, Article 80, which provides that “[l]ife imprisonment or confinement shall be imposed upon a person that murders an ascendant, descendent, spouse or ex-spouse or a person that kills another with whom he or she maintains a relationship, irrespective of whether they maintained a joint household.”  The defendant challenged the constitutionality of the statute, arguing that it violates principles of equal protection because it does not afford (or it is not clear that the statute affords) equal protection to similarly situated homosexual couples.  In rejecting the defendant’s challenge, the court notes (1) Supreme Court precedent making clear that holding legislation unconstitutional is a grave act that should be taken as a last resort and when it is clear that the legislation is clearly unconstitutional, and (2) the legislation in question sought to introduce as aggravating circumstances factors that had previously been ignored, extending the definition of the concept of “family” to include different family realities.

 

El acusado, el Sr. H.R.A fue condenado por homicidio con acciones agravadas debido a sus vínculos anteriores y su relación con la víctima, la Sra. N.A. (su pareja), a quien asesinó con un arma. El Sr. H.RA. fue condenado a cadena perpetua con conformidad con la Ley Nº 26.791, Artículo 80, que dispone que “se impondrá la reclusión o el encarcelamiento a una persona que asesine a un ascendiente, descendiente, cónyuge o ex cónyuge o una persona que asesine” otro con quien él o ella mantiene una relación, independientemente de si mantuvieron un hogar conjunto ”. El acusado impugnó la constitucionalidad de la ley, argumentando que violaba los principios de protección igualitaria porque no permite (o no está claro si el el estatuto otorga igual protección a las parejas homosexuales en situación similar). Al rechazar la impugnación del acusado, el tribunal señala (1) el Tribunal Supremo precedente, dejando en claro que mantener la legislación inconstitucional es un acto grave que debe tomarse como último recurso y solamente cuando está claro que la legislación es claramente inconstitucional, y cuando (2) la legislación en cuestión buscaba introducir como circunstancias agravantes factores que anteriormente se habían ignorado, extendiendo la definición del concepto de "familia" para incluir diferentes realidades familiares.



Muhammad Juzaili Bin Mohd Khamis, et al. v. State Government of Negeri Sembilan, et al. Court of Appeal Putrajaya (2015)

International law, LGBTIQ

The respondents in this case, three Muslim men with Gender Identity Disorder, filed a judicial review application at the Seremban High Court seeking a declaration that section 66 of the Syariah Criminal (Negeri Sembilan) Enactment of 1992 was unconstitutional. Section 66 “makes it an offense for any Muslim male person to do any of the following in a public place: to wear a woman’s attire, or to pose as a woman.” The High Court dismissed the application. However, the Court of Appeal overturned the High Court’s decision and declared that section 66 was unconstitutional on the grounds that it interfered with the respondents’ right to live with dignity and right to life, that it discriminated based on gender, and that it violated the respondents’ freedom of movement and freedom of expression. The State Government of Negeri Sembilan appealed the Court of Appeal’s decision to the Federal Court. The Federal Court overturned the Court of Appeal decision on the basis that the respondents should have challenged section 66 under Article 4 of the Federal Constitution, which requires leave from the Federal Court and Federal Government being entitled to join as a party, instead of by way of judicial review. Accordingly, until such proceedings are filed and the Federal Court makes a declaration on the issue, section 66 of the Syariah Criminal (Negeri Sembilan) Enactment of 1992 remains valid.



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.



Applicants McEwan, Clarke, et al. v. Attorney General High Court of the Supreme Court of Judicature (2013)

Gender discrimination, LGBTIQ

On February 6, 2009, four transgender individuals (A, B, C, D) identifying as female were arrested and charged with both Loitering and Wearing Female Attire.  The police detained the Applicants for the entire weekend without explaining the charges against them.  Wearing Female Attire is prohibited under Section 153(1)(XLV11) of the Summary Jurisdiction (Offences) Act, chapter 8:02.  At the hearing on February 9, 2009, the Chief Magistrate commented that the Applicants were confused about their sexuality and told them they were men, not women, and needed to give their lives to Jesus Christ.  The Applicants, who were all unrepresented at the time, pleaded guilty to the charge of Wearing Female Attire.  Applicants A, B and D were fined $7,500, and Applicant C was fined $19,500 (Guyanese dollars).  The loitering charges were eventually dismissed.  The Applicants contacted the Society Against Sexual Orientation Discrimination (SASOD), the Equal Rights Trust’s Guyanese partner, about the case.  SASOD agreed to represent Applicants and filed a Notice of Motion challenging the Magistrate’s Court decision and seeking redress.  The Applicants argued that the police violated the Constitution because the officers failed to inform them of their arrest and did not permit the Applicants to retain counsel.  They also argued that Section 153 (1) (XLV11) of the Summary Jurisdiction (Offences) Act 1893 is: (1) vague and of uncertain scope; (2) irrational and discriminatory on the ground of sex; and (3) a continuing threat to their right to protection against discrimination on the ground of sex and gender under the Constitution.  Applicants further argued that, by instructing the Applicants to attend Church and give their lives to Jesus Christ, the Chief Magistrate discriminated against them on the basis of religion, which violated a fundamental norm of the Co-operative of the Republic of Guyana as a secular state in contravention to the Constitution.  The Court upheld the Applicants’ claims in relation to their fundamental right to be informed of the reason for their arrest under Article 139 of the Constitution, but rejected all of their other claims.  The Court found that the prohibition of cross-dressing for an improper purpose was not unconstitutional gender or sex discrimination, impermissibly vague, or undemocratic.  The Court also struck SASOD’s application in full, finding that SASOD did not have standing to be an applicant in the case.



Minister for Immigration and Citizenship v. SZMDS High Court of Australia (2010)

Gender-based violence in general, International law, LGBTIQ

The respondent, an allegedly homosexual citizen of Pakistan, arrived in Australia on a visitor visa in 2007 and applied for a protection visa. To be recognized as a refugee, the respondent had to show that he had a well-founded fear of being persecuted due to his race, religion, nationality, membership of a particular social group, or political opinion. The respondent argued that, as a homosexual man, he belonged to a particular social group that was persecuted and subject to harm in Pakistan. The respondent’s protection visa application was initially denied, and the Refugee Review Tribunal (Tribunal) affirmed this decision. The Tribunal found that while homosexuals in Pakistan constitute a protected group, the respondent was not actually a homosexual because he safely make a three-week visit to Pakistan before traveling to Australia and failed to seek asylum on a recent visit to the UK.  On appeal, the Federal Court found that the Tribunal’s decision was based on illogical reasoning. The Minister for Immigration and Citizenship appealed the Federal Court’s decision to the High Court. In a majority decision, the High Court overturned the Federal Court’s decision, finding that the Tribunal’s reasons for not believing the respondent was actually a homosexual were sound.



Appellant S395/2002 v. Minister of Immigration and Citizenship High Court of Australia (2003)

Gender-based violence in general, International law, LGBTIQ

The appellants, both homosexual male citizens of Bangladesh, arrived in Australia and applied for protection visas. To be recognized as refugees, the appellants had to show that they had a well-founded fear of being persecuted due to their race, religion, nationality, membership in a particular social group, or political opinion. The appellants argued that they belonged to a “particular social group” that was subject to discrimination and harm in Bangladesh by virtue of their homosexuality. A delegate of the Minister for Immigration and Citizenship initially determined that because the appellants had conducted their relationship in a discreet manner in Bangladesh, they would suffer no serious harm if they returned to Bangladesh and continued to keep their relationship secret. For this reason, appellants were initially denied protection visas, and the Refugee Review Tribunal affirmed this decision. The appellant’s appealed to the Federal Court for judicial review and the primary judge dismissed the application, agreeing with the delegate’s reasoning about the discreetness of the appellants’ relationship. Appellants appealed to the Full Federal Court, which also dismissed their appeal. Appellants then appealed to the High Court, which granted them special leave to appeal. The High Court considered whether the Tribunal had erred in requiring or expecting the appellants to behave discreetly in order to avoid persecution. In a four-to-three decision, the High Court found that the Tribunal had erred because it improperly split the social group of homosexual men into two groups, discreet and non-discreet. The High Court held that the expectation that a person take reasonable steps to avoid persecutory harm, does not include the need to be discreet about sexuality, especially given that the appellants may have only been acting discreetly due to the persecution of openly homosexual men in Bangladesh. The case was referred back to the Tribunal for redetermination.



Law of 5 May 2014 (2014)

Gender discrimination, LGBTIQ

The Law of 5 May 2014 considers the determination of the descent of the co-mother amended the Civil Code to ensure that women in a lesbian relationship no longer have to adopt their child. For married couples, the wife of the biological mother is automatically recognized as co-mother, while for non-married couples, the partner, in order to be recognized, has to recognize the child officially before or after its birth. In case of dispute considering the recognition of the co-mother, the agreements and informed consents, signed in the center for medically assisted propagation will serve as evidence for recognition (or non-recognition) of the co-mother. It is noteworthy that in Belgium, the concept of co-father does not yet exist and men thus still have to adopt in order to become the father of their child.


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.



Naz Foundation v. Govt. of Delhi Supreme Court of India (2009)

Gender-based violence in general, LGBTIQ

A public interest litigation was initiated to change the definition of non-criminal sex from "hetero-sexual penile-vaginal" to "consensual sex between adults." The court granted the petition finding the criminalization of non-heterosexual sex violative of the constitution.



Legislation

Offenses Pertaining to Schools (Title 16, Chapter 38, General Laws of Rhode Island)

Gender discrimination, LGBTIQ

Discrimination on the basis of sex is prohibited in all public colleges, community colleges, universities, and all other public institutions of higher learning in the state that are operated by the board of governors for higher education. This prohibition applies to employment, recruitment, and hiring practices, employment benefits, admissions, curricular programs, extracurricular activities including athletics, counseling, financial aid including athletic grants-in-aid, student medical, hospital, and accident or life insurance benefits, facilities, housing, rules and regulations, research, and all other school functions and activities. Notwithstanding these prohibitions, schools may do the following: (i) maintain separate but comparable restrooms, dressing, and shower facilities for males and females, including reasonable use of staff of the same sex as the users of these facilities; (ii) provide separate teams for contact sports or for sports where selection for teams is based on competitive skills, provided that equal athletic opportunities which effectively accommodate the interests and abilities of both sexes are made available; (iii) maintain separate housing for men and women, provided that housing for students of both sexes is as a whole both proportionate in quantity to the number of students of that sex that apply for housing and comparable in quality and cost to the student; and (iv) permit the establishment and operation of university based social fraternities and sororities.



Rhode Island Fair Housing Practices Act (Title 34, Chapter 37, General Laws of Rhode Island)

Gender discrimination, LGBTIQ, Property and inheritance rights

The Rhode Island Fair Housing Practices Act prohibits housing practices that discriminate based on gender identity or expression, which is defined to include a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.



Código Penal (Penal Code) (2018)

Abortion and reproductive health rights, Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Forced and early marriage, Gender-based violence in general, LGBTIQ, Sexual harassment, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Under section 142 (Crimes against people) of the Portuguese Penal Code, abortion is permitted if performed by a doctor and in the following scenarios: (1) risk of death or grave physical or mental harm to the mother; (2) the fetus is in risk of grave illness or malformation, up to the 24th week of pregnancy; (3) pregnancy was caused by rape or sexual assault, up to the 16th week of pregnancy; (4) by the mother’s choice, up to the 10th week of pregnancy. Article 118 provides that the statute of limitations on crimes of sexual violence and female genital mutilation against minors do not expire until the victim is at least 23 years old. Prostitution is not considered a crime in Portugal. However, the economic exploitation of prostitution by third parties is considered a crime under the Penal Code. A homicide that reveals “especial censurabilidade ou perversidade” (special censorship or perversity) is punishable with 12 – 25 years imprisonment. These special circumstances include a current or former spousal relationship between the perpetrator and victim, a sexual motive, and hate crimes including those based on sex, gender, sexual orientation, and gender identity. Article 144a bans female genital mutilation and imposes a prison sentence of two to 18 years. Articles 154b, 159, and 160 ban forced marriage, slavery, and human trafficking, respectively. Article 163 bans sexual coercion, which carries a sentence of one to eight years for coercing a significant sexual act. Article 164 punishes “violação”, which is forcible intercourse, with imprisonment for one to six years.



Código Civil (Civil Code) (2010)

Forced and early marriage, Gender discrimination, LGBTIQ

Section 1577 of the Portuguese Civil Code provides for the right of marriage, regardless of gender, to anyone over the age of 16, provided that whoever wishes to marry before the age of 18 must also present an authorization of their parents or legal guardians. The Civil Code also provides that marriage requires free will of both parties, and therefore any marriage that is performed without the will of both spouses is void.



Constituição da República Portugal (Constitution of the Portugese Republic) (1976)

Gender discrimination, LGBTIQ

The Portuguese Constitution in Section 9 provides that it is the duty of the State to promote equality among men and women.  Section 13 further provides that no one shall be privileged or discriminated against for birth, gender, race, language, place of origin, religion, political or ideological conditions, social or economic status, or sexual orientation.



Penal Code of Indonesia (1999)

Abortion and reproductive health rights, Gender discrimination, LGBTIQ, Sexual violence and rape, Statutory rape or defilement

Article 260 punishes spouses who conceal from their spouse a legal barrier to marriage with a maximum sentence of five years imprisonment. Article 284 punishes adulterous spouses and their partners, regardless of their marital status. The penal code only criminalizes acts of rape outside marriage unless the wife is underage and incurs injuries as a result. Articles 285 prohibits forcing or threatening force a woman to have sexual intercourse outside of marriage and punishes violators with a maximum penalty of 12 years. Article 286 punishes sexual intercourse with an unconscious or helpless woman with a maximum of nine years imprisonment. If there is a complaint, Article 287 imposes a maximum sentence of nine years imprisonment for “carnal knowledge” of a girl outside of marriage when the man knows or reasonably should presume that she is less than 15 years of age. Prosecutions are triggered automatically when the girl is less than 12 years of age. Article 288 punishes husbands that have “carnal knowledge” of their wives who “are not yet marriageable” if it results in injury (four years imprisonment), serious injury (eight years), or death (12 years). Article 292 punishes adults that have carnal knowledge of those they know to be or reasonably should know to be minors of the same sex with a maximum of five years imprisonment. Article 293 punishes sexual abuse of a minor with a maximum of five years imprisonment. Incest is punishable by a maximum of seven years imprisonment pursuant to Article 294. Article 297 prohibits trafficking in woman and boys, which carries a maximum sentence of six years imprisonment. Article 299 imposes a four-year maximum sentence for abortion and provides for a one-third increase in sentencing for professionals (e.g., doctor, midwife) who perform abortions.



Law on Employment and Work of Foreigners (2015)

Employment discrimination, Gender discrimination, LGBTIQ

Article 4(6) of the Law on Employment and Work of Foreigners provides that when employing a foreigner, the employer must not put the job seeker in less favourable position due to race, color of skin, gender, age, health condition, that is, disability, religious, political or other convictions, trade union membership, national or social background, family status, property status, sexual orientation, or due to other personal circumstances. (English translation available from the ILO through the external link.)



Law on Prevention of and Protection from Discrimination (Official Gazette of the Republic of Macedonia nos. 50/2010, 44/2014, 150/2015, 31/2016 and 21/2018) (2010)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The Law on Prevention of and Protection from Discrimination (the “LPPD”), which entered into force in 2011, introduced the concepts of direct and indirect discrimination (Article 6), instruction to discriminate (Article 9) and harassment and sexual harassment (Article 7). The LPPD covers almost all grounds of discrimination as covered by EU law i.e. “ sex, race, colour, gender, belonging to a marginalized group, ethnic origin, language, nationality, social background, religion or religious beliefs, other types of beliefs, education, political affiliation, personal or social status, mental and physical impediment, age, family or marital status, property status, health condition or any other basis anticipated by a law or ratified international agreement." However,  the LPPD does not cover discrimination based on sexual orientation. Article 9 of the LPPD also covers sexual harassment, which states that “sexual harassment shall be unwanted behavior of sexual nature, manifested physically, verbally or in any other manner, aimed at or resulting in violation of the dignity of a person, especially when creating a hostile, intimidating, degrading or humiliating environment." Article 4 of the LPPD covers a wide scope on the prohibition on harrassments, which includes: (a) labour and labour relations; (b) education, science and sport; (c) social security, including the area of social protection, pension and disability insurance, health insurance and health protection; (d) judiciary and administration; (e) housing; (f) public information and media; (g) access to goods and services; (h) membership and activity in unions, political parties, citizens’ associations and foundations or other membership-based organizations; (i) culture, and (j) other areas determined by law. (English translation available from the ILO through the external link.)



Criminal Code (2000)

Abortion and reproductive health rights, Forced and early marriage, LGBTIQ, Sexual violence and rape, Statutory rape or defilement

The Belize Criminal Code defines and criminalizes rape, including marital rape (Sections 46, 71-74); carnal knowledge of female child (Section 47); procuring or attempting to procure a woman (Section 49-50); compulsion of marriage (Section 58); incest by males (Section 62); abortion, miscarriage, and child destruction (Sections 111-12, 127).  The Code mandates a minimum sentence of eight years for rape (Section 46), 12 years of carnal knowledge of a female child (Section 47), and a life sentence for habitual sex offenders (Section 48).

Of particular note:

Marital rape under Section 72 requires a showing that the spouses have separated, the marriage is dissolved, an order or injunction has been made, granted or undertaken against the spouse, or that the sexual intercourse was preceded or accompanied by assault and battery.  Lack of consent is not enough if the parties are married.  The Criminal Code also criminalizes same-sex relationships under Section 53, which criminalizes “carnal intercourse against the order of nature with any person or animal.”Abortion and the aiding of abortion are felonies and carry a prison term of 14 years to imprisonment for life under Section 111.  There are limited exceptions under Section 112 if two registered medical practitioners agree that the abortion is necessary to preserve the life or health of the mother or her family or if the child may be seriously handicapped.


Anti-Discrimination Act of 1992 (Northern Territory) (2018)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The Anti-Discrimination Act prohibits discrimination in certain settings on the grounds of any designated attribute, including sex, sexuality, marital status, pregnancy, parenthood, and breastfeeding.  Unlike in other Australian jurisdictions, “gender identity” and “sex characteristics” are not included as designated attributes in the Northern Territory.  The settings in which discrimination based on a designated attribute is prohibited include: education, work, accommodation, provision of goods, services and facilities, clubs, and superannuation.  Discrimination includes any distinction, restriction, or preference made based on a designated attribute that has the effect of nullifying or impairing equality of opportunity, and harassment based on a designated attribute.  Certain exceptions from the prohibition of discrimination exist, including: certain religious circumstances; provision of rights or privileges connected to childbirth; and discrimination aimed at reducing disadvantage.  Alleged victims of prohibited discrimination can lodge a complaint against the discriminating person or entity, which will trigger a conciliation.  If the matter is not resolved through conciliation, the Northern Territory Anti-Discrimination Commissioner may assess the complaint.  If the Commissioner finds that the complaint is substantiated, the Northern Territory Civil and Administrative Tribunal can order that the discriminator pay compensation to the victim, discontinue the discriminating behavior, or do any other act specified by the Tribunal.  



Resolução nº 175/2013 (2013)

Gender discrimination, LGBTIQ

On May 14, 2013, the National Justice Council issued a resolution stating that competent authorities are not allowed to refuse (a) to celebrate same-sex civil marriages nor (b) to convert same-sex common-law marriages (stable union) into civil marriages.  The National Justice Council is a public administrative body that aims to advance the work of the Brazilian judicial system. The resolution was issued after the Supreme Court declared in 2011 that it is unconstitutional to apply a different legal treatment to same-sex common-law marriages (stable union), from the one applied to heterosexual common-law marriages (stable union). 



The Islamic Penal Code of Iran, Books 1 & 2 (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices, LGBTIQ

Article 147 of the Islamic Penal Code specifies that the age of maturity triggering criminal responsibility is 15 Islamic lunar calendar years for boys, but only nine Islamic lunar calendar years for girls. This signifies that young girls can be charged as criminally responsible adults in Iran before they reach the age of puberty. Articles 237-239 forbid same-sex kissing and touching, which will be punished by 31-74 lashes. Female genital touching (musaheqeh) is punished by 100 lashes. Article 225 mandates the death penalty for adultery (zina), which international commentators have noted is disproportionately applied to women (e.g., UN Special Rapporteur for Violence Against Women report: http://www.ohchr.org/Documents/Issues/Women/A-68-340.pdf). Article 199 describes the number and gender of witnesses needed to prove various crimes; no crimes may be proven with female witnesses alone and any female witness requires corroboration of a man and another woman. (Full Persian version of the Penal Code available at: http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=103202)



Collective Labor Agreement No. 95 of 10 October 2008 (2008)

Employment discrimination, LGBTIQ

The Collective Labor Agreement No. 95 of 10 October 2008 was established by the National Labor Council to ensure compliance with equal treatment principles at all stages of the employment relationship. Equal treatment implies the absence of discrimination based on several factors, including gender and sexual orientation. The principle of equal treatment must be complied with at every stage of the labor market, e.g., the employment relationship, the conditions for access to employment, conditions for employment, and termination of employment. It was made binding in law by the Royal Decree of 11 January 2009.



Royal Decree of 11 January 2009 (2009)

Employment discrimination, Gender discrimination, LGBTIQ

The Royal Decree of 11 January 2009 makes Collective Labor Agreement No. 95 of 10 October 2008, established by the National Labor Council, on equal treatment at all stages of the employment relationship, binding in law. Equal treatment implies the absence of discrimination based on several factors, including gender and sexual orientation. The principle of equal treatment must be complied with at every stage of the labor market, e.g., the employment relationship, the conditions for access to employment, conditions for employment, and termination of employment.


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.


Gender Law of 10 May 2007 (2007)

Abortion and reproductive health rights, Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Harmful traditional practices, International law, LGBTIQ, Property and inheritance rights, Sexual harassment

The Gender Law of 10 May 2007 combats discrimination between women and men (thereby implementing European Union legislation) and prohibits every form of discrimination based on gender, change of gender, gender identity, gender expression, pregnancy, childbirth and motherhood. Direct and indirect discrimination, giving orders to discriminate, intimidation and sexual intimidation are all explicitly prohibited. Discrimination is prohibited with regard to access to goods and services, social security, social benefits, membership of professional organizations, and employment relations and conditions. Differences (in terms of access to certain goods or services, or employment conditions) are only allowed if it is objectively justified by a legitimate aim and if the restrictions are appropriate and necessary to achieve this aim. Differences are also allowed on a temporary basis in the context of positive action to prevent or compensate for gender-related disadvantages. Victims of discrimination can submit a reasoned complaint or take legal action. If the plaintiff has produced facts which indicate that there has been discrimination, the burden of proof is on the defendant to demonstrate that there was no gender-based discrimination.


International Case Law

C. v. Australia Human Rights Committee (ICCPR) (2018)

Divorce and dissolution of marriage, International law, LGBTIQ

C. was a citizen of Australia and the United Kingdom who lived with A. as a couple in the State of Victoria and then Queensland.  They agreed to have a baby and that C. would be the birth mother.  They traveled to Canada and got married and then separated shortly after the marriage.  C. is the sole caregiver of the baby and no longer knows of the whereabouts of A.  C. wanted to formally dissolve her Canadian legal marriage so that she could remarry or enter a civil partnership in the future.  She also wanted to ensure she was not held responsible for A.’s debts.  Finally, when traveling abroad, she did not want A. to be deemed her legal spouse in certain countries where the marriage might be recognized and A deemed next of kin.  In Queensland, in order to obtain a file a divorce application to dissolve a marriage, a marital relationship must be legally recognized as a marriage.  Section 5(1) of the Marriage Act of 1961, which provided the relevant definition of marriage, define this term to mean “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”  Further, Section 88EA of the Act provided that, “a union solemnized in a foreign country between: (a) a man and another man, or 9b) a woman and another woman, must not be recognized as a marriage in Australia.”  C. did not file for divorce in Australia because of the laws, nor did she apply in Canada or the United Kingdom because both had residency requirements for divorce.  C. filed her claim with the Committee claiming that the denial under Australian law of access to divorce proceedings for same-sex couples who have validly married abroad and the consequential denial of court-based relief in the form of a court order amounts to discrimination on the basis of sexual orientation, contrary to article 1491), ready together with article 291) (equal access to courts and tribunals), and article 26 (equality before the law) of the Covenant.  The Committee determined that C. was precluded from accessing divorce proceedings in Australia because her same-sex marriage was not recognized under sections 5(1) and 88EA of the Marriage Act of Australia, whereas couples in specific opposite-sex marriages not recognized in Australia, such as polygamous couples, do have access to divorce.  This was found to constitute differential treatment.  Australia stated they made a reasonable exception for polygamous marriages to enable parties to such marriages access to the assistance, relief and help provided by the family law courts in relation to (but not limited to) children’s matters, property matters, maintenance matters or divorce.  The Committee determined that Australia did not explain why this stated reason does not apply equally to unrecognized foreign same-sex marriages.  In the absence of more convincing explanations from Australia, the Committee found that the differentiation of treatment based on sexual orientation to which C. was subjected regarding access to divorce proceedings was not based on reasonable and objective criteria and therefore constitutes discrimination under article 26 of the Covenant.  Under article 2(3) of the Covenant, the Committee stated that Australia was under an obligation to provide C. with an effective remedy by providing full reparation for the discrimination suffered through lack of access to divorce proceedings.  Australia also was obligated to take steps to prevent similar violations in the future and to review its laws in accordance with the Committee’s views, and to provide the Committee information about the measures taken to give effect to the Committee’s views within 180 days.



A.S. v. Denmark CEDAW Committee (2018)

International law, LGBTIQ

A.S., a Uganda national, applied for asylum in Denmark.  She claimed she was wanted in Uganda and at risk of being killed there because she was a lesbian.  She was forced to marry a man and have three children, and when he died, she made a living working in a bar frequented by lesbians.  Three men made advances to her in the bar, she turned them down, and they became aggressive.  Her home was ransacked and burned, her belongings were stolen, and the police looked for her, including at her mother’s house.  She left Rwanda traveling with a visa obtained in Kampala.  Danish authorities rejected the asylum application, noting the visa contained the wrong name.  A.S. filed a complaint with CEDAW claiming that, deportation to Uganda would violate her rights under articles 1-3 of the Convention because her life would be in danger at the hands of the police and ordinary people due to her sexual orientation.  She claimed that her case was not properly investigated by the Refugee Appeals Board.  The Committee noted that the Danish authorities found A.S.’ account lacked credibility due to factual inconsistencies and lack of support related to her claim to be a lesbian and her account of the bar incident.  The Committee also noted that the authorities considered the situation of gay people in Uganda, and found that, notwithstanding the fact homosexuality is prohibited under the Penal Code, the ban has not been enforced and gay people are not targeted.  The Committee deemed the communication inadmissible under article 4 (2)(c) concluding that A.S. failed to support that the lack of reference to the Convention in the asylum decision or the refusal to call a witness stemmed from any gender-based discrimination.  It also did not find any procedural defect or arbitrariness in the decision-making process or any breach of the Convention as a result of the initial error related to A.S.’ name.