Report Launch: Equality of Opportunity for Sexual and Gender Minorities (EQOSOGI), September 28, 2021, Online
Find out more: https://www.worldbank.org/en/events/2021/09/10/eqosogi
Find out more: https://www.worldbank.org/en/events/2021/09/10/eqosogi
USA: Court Rules College Must Rehire Professor Fired for Being Trans
The 10th Circuit Court of Appeals has ruled that an Oklahoma college must rehire a professor who was fired for being transgender.
Dr. Rachel Tudor was terminated from her position at Southeastern Oklahoma State University in 2011 after the school’s Vice President for Academic Affairs told the school’s HR department that her “lifestyle” offended him, according to the local news publication TulsaWorld. Tudor had been working for the school since 2004 and came out as transgender in 2007.
Two years before being fired, McMillan and another Dean denied Tudor tenure, despite the fact that she received a 4-1 vote in her favor from a faculty committee. Because she did not receive tenure, she lost her job.
In 2015, the Department of Justice (DOJ) sued Southeastern Oklahoma State on Tudor’s behalf, alleging the school violated Title VII of the Civil Rights Act of 1964 by terminating her. The Supreme Court ruled in 2020 that the 57-year-old federal legislation, which prohibits employment discrimination on the basis of sex, also pertains to cases of LGBTQ+ workplace bias. The Obama administration shared the same opinion regarding Title VII, which it outlined in a 2014 executive order.
Free publications and events on Asylum and Sexual Orientation/Gender Identity
The SOGICA project was completed in October 2020. We are sending this newsletter to give you the exciting news that the SOGICA book – actually books as it is in two volumes – has now been published (see below). It is open access, so please disseminate it widely and tell us what you think. We hope you enjoy it and see it as a valuable contribution to knowledge and also to European policy and practice in the area of SOGI asylum.
This is also an update on our other publications and events. Since the end of the project we have been busy working on articles and taking part in conferences and workshops to ensure our project findings are put to good use.
As usual, all publications by the SOGICA team and individual members can be found on the SOGICA website publications page. If you would like access to any of these publications and they are not publicly accessible, please email us and we will be happy to send them to you.
…. and previous events (in case you have missed them)
Please visit the events page of the website for further information about events over the course of the SOGICA project, including our final conference in July 2020.
Since our last mailing, we have added a further 150 items to the SOGICA database which now contains more than 1,240 academic and NGO articles, official reports, case law decisions and other items.
The Life Stories section of our website contains some individual accounts of LGBTQI+ people claiming asylum. In this way, we hope to keep sight of the human cost of flawed asylum processes and provide a space for some of the people involved to share their experiences. If you are seeking international protection on sexual orientation or gender identity grounds, or have done so, feel free to send us contributions (by email to email@example.com) to be considered for publication on our website.
Our thanks to all our newsletter subscribers and project friends and colleagues. It is wonderful to have had the opportunity to get to know so many of you. We are maintaining our website and our Twitter and Facebook accounts, and hope you will continue to use these to keep in touch with us. And we may well be in touch again in the future with more news about the SOGICA project and SOGI asylum in Europe…
Please feel free to email us with any questions you have about the SOGICA project, or any news which you would like to share.
Best wishes from Nuno, Carmelo, Moira and Nina at SOGICA
Inter-American Court of Human Rights (IACtHR): Vicky Hernández et al. v. Honduras
|Vicky Hernández et al. v. Honduras: A Landmark Victory with a Bitter Aftertaste|
|On June 28, on International LGBT Pride Day, the Inter-American Court of Human Rights (IACtHR) issued its ruling in Vicky Hernández et al. v. Honduras, the first case involving lethal violence against an LGBT person, specifically a trans woman, to reach the highest body of the Inter-American regional system.|
During the proceedings, Honduras denied that its police force had any part in Vicky Hernández’s murder, which occurred on another June 28, this time in 2009, on the first night of the curfew imposed during the coup d’état against then-president Manuel Zelaya. The decision sparked considerable anticipation: the Inter-American Commission on Human Rights (IACHR) and representatives of Hernández’s family had requested the IACtHR to apply the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (“Convention of Belém do Pará”) to the case. Previously the treaty had only been applied to instances of violence against cisgender women. Furthermore, the petition was submitted to the IACHR in 2012, before Advisory Opinion OC-24/17 had been issued.
Quite a lot, therefore, was at stake.Read the post
UK: Court overturns cruel Keira Bell ruling depriving trans kids of life-saving puberty blockers
European Court of Human Rights: Discrimination in Poland against lesbian in custody case is a violation of the ECHR
Posted: 17 Sep 2021 05:25 AM PDT, (c) Paul Johnson, ECHR Sexual Orientation Blog – Discrimination in Poland against lesbian in custody case is a violation of the ECHR
The First Section of the European Court of Human Rights has issued its judgment in the case of X v Poland.
The case concerns the applicant’s claim that she had been discriminated against on the basis of her sexual orientation in proceedings for full parental rights and custody rights over her youngest child.
The Court held, by six votes to one, that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
Facts of the case
The applicant, Ms. X, is a Polish national who was born in 1970 and lives in Poland. She has four children from her marriage in 1993 with Mr. Y.
After becoming involved in a relationship with another woman, Ms. Z, Ms. X applied for a divorce in April 2005. Her parents, who did not approve of their daughter’s decisions, subsequently sought custody of the children. Temporary custody was granted to them by the District Court, sitting as a single judge – a judge who was allegedly well acquainted with her parents.
Following an appeal by both Ms. X and Mr. Y, in June 2005 the Regional Court quashed that decision. In the same month it pronounced a no-fault divorce and granted Ms. X full parental rights and custody of the four children.
In October 2006 the applicant’s former husband applied to change the custody arrangement. After assessment of their respective parenting abilities, during which the applicant was asked directly whether she was homosexual and had had sexual intercourse with Ms. Z, the District Court granted full parental rights to Mr. Y and restricting those of Ms. X.
Ms. X appealed, emphasising that she had always been the main carer for the children and that her former husband had not spent time with the children since the divorce, either not using his contact rights or leaving the children in the care of her parents. The appeal was dismissed.
In April 2008, Ms. X requested that the custody order be revised in respect of her youngest child. The District Court, sitting as the same single judge, and relying on the expert opinions issued in the previous proceedings, held that the applicant “had concentrated excessively on herself and her relationship with her girlfriend”, and rejected her request for an interim measure allowing her to retain custody during the proceedings.
In May 2008, Ms. X lodged an application challenging the impartiality of the judge. The following day, the same judge ordered that the child be removed from her care.
In June 2009, the District Court dismissed Ms. X’s application for amendment of the custody order and for parental and custody rights over the youngest child. The court decided that the seven-year-old should continue to live with his siblings and father so that his correct emotional and social development needs could be met, stating that that decision was “justified by the current stage of the child’s development and the father’s larger role in creating [the child’s] male role model”.
Ms. X appealed, claiming that the child was being looked after mainly by Mr. Y’s sisters and grandparents. She considered that the court had failed to recognise the interests of the child and had taken her husband’s homophobic opinions into account, opinions which he had voiced to the children, the courts and the experts. She argued that the main grounds for the court’s decisions had been her relationship with another woman and was discriminatory on the basis of her sexual preferences. The Regional Court dismissed the appeal.
Complaint to the Court
Ms. X complained that the domestic courts had refused to grant her custody of her child on the grounds of her sexual orientation, which amounted to discrimination in the enjoyment of her Convention rights, in breach of Article 14 taken in conjunction with Article 8 of the Convention.
Judgment of the Court
The Court applied its general approach to complaints brought under Article 14 of the Convention, which includes the principle that, in order for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous or relevantly similar situations.
The Court, therefore, considered whether there was a difference in treatment relevant to Article 14. In examining the domestic proceedings the Court found, for instance, that “references to the applicant’s homosexuality and relationship with Z were predominant in the first set of proceedings” (§ 76).
The Court’s “inescapable conclusion” was that Ms. X’s “sexual orientation and relationship with another woman was consistently at the centre of deliberations in her regard and omnipresent at every stage of the judicial proceedings” (§ 79).
The Court therefore concluded that there was a difference in treatment between Ms. X and any other parent wishing to have full custody of his or her child. This difference was based on her sexual orientation, a ground which is covered by “other status” in Article 14 of the Convention.
The Court then turned, as is standard in an Article 14 issue, to ask whether the difference in treatment was justified.
The Court focused on the fact that, in the most recent set of proceedings, the domestic courts refused to alter the status quo as regards custody on the basis of two main arguments: the advantages of all the siblings living together, and the importance of a “male role model” in the boy’s upbringing.
The Court considered whether these arguments were appropriate to fulfil the purpose declared in these proceedings, namely to protect the best interests of the child. In so doing, the Court evaluated whether either or both reasons were based on discriminatory considerations.
The Court’s conclusion was that the reference to the importance of a male role model for the boy’s upbringing, the need for which would apparently increase as the child grew older, was discriminatory and a decisive factor in the dismissal of Ms. X’s requests for custody.
Moreover, the Court noted that the domestic courts considered that a positive assessment of Ms. X’s competencies as a primary carer for her children depended on her stopping her relationship with Ms. Z. In this respect, the domestic courts referred to her relationship as “excessive involvement” and an “attitude” which needed to be “corrected” and expected the relationship to be “abandoned” and Ms. Z to be “excluded from family life”.
The Court concluded that in refusing to grant Ms. X full parental rights and custody rights the domestic authorities “made a distinction based solely or decisively on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention” (§ 92).
As such, there had been a breach of Article 14 of the Convention taken in conjunction with Article 8.
Dissenting opinion of Judge Wojtyczek (Poland)
Judge Wojtyczek filed a dissenting opinion, criticising the majority on three grounds, namely that (i) the proceedings raise serious reservations from the viewpoint of procedural justice, (ii) the factual findings made by the Court are not fully accurate, and (iii) the legal assessment of the merits of the case appears incorrect.
Judge Wojtyczek argued that the proceedings in this case are “fundamentally flawed from the standpoint of procedural justice” and that the majority “have established a difference in treatment without providing sufficient evidence that the applicant was treated differently from another class of parents in a similar situation”.
Judge Wojtyczek concludes: “In any event, the contested domestic judgments remain within the scope of the margin of appreciation of the respondent State”.
European Parliament condemns failure to respect rights of same-sex partners in EU
European parliament resolution criticises bloc’s patchwork policy, as some countries ignore recent rulings.
European Parliament resolution on LGBTIQ rights in the EU
The continued failure of EU governments to respect the residency and benefits rights of same-sex partners as they move between countries in Europe has been condemned in a European parliament resolution.
Marriages and registered partnerships formed in one member state should be recognised in all of them, with same-sex spouses and partners treated equally to others, according to a text supported by 387 MEPs, with 161 voting in opposition and 123 abstaining.
The resolution was tabled in response to the confusing patchwork of policy applied to people in same-sex marriages and the failure of some member states to respect recent rulings by the European court of justice (ECJ), the arbiter of EU law.Advertisementhttps://9f9ca499991fb4ff26bb6b4a06010b30.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
The EU’s 27 member states retain the freedom not to authorise marriage between people of the same sex, as is the situation in Bulgaria, Latvia, Lithuania, Poland, Romania and Slovakia.
But following a judgment by the ECJ in 2018, in a case taken against the Romanian authorities by Adrian Coman and his husband, Claibourn Robert Hamilton, EU governments are obliged to at least respect the residency rights of same-sex spouses who have been married elsewhere in the bloc.
However, according to a European parliament study the ruling has not led to a change in policy by the Romanian authorities, who are yet to issue a residence permit to Hamilton, three years after the judgment. And as many as 12 member states have been found granting the right of residence to a same-sex spouse but without attaching the name “spouse”.
The lack of recognition of same-sex marriage more broadly has created obstacles to people claiming pensions, the award of joint health insurance, and succession to tenancies.
The difficulties are said to be even greater for same-sex couples who are legal parents in one member state but who have found that their position changes on crossing a border.
They may cease to be legally a couple, becoming instead two unrelated individuals. Their child or children may go from having two legal parents to only one legal parent or, in a few cases involving surrogacy, to no legal parents, the parliament’s study found, leading to the denial of rights and benefits which the law reserves for “families”.
Two cases are pending before the European court of human rights in which same-sex couples who married abroad have been faced with the refusal of Polish authorities to register their marriage in the country’s marriage registry, on the basis that this would be contrary to “basic principles of the Polish law”.
The marriages are not recognised in Poland “for any legal purposes”, meaning rights or entitlements reserved for married couples are being refused to same-sex couples.
The MEPs’ resolution called on the European Commission to “ensure that all EU member states respect continuity in law as regards the family ties of members of rainbow families which move to their territory from another member state”.
Read the Resolution: https://www.europarl.europa.eu/doceo/document/B-9-2021-0431_EN.html
ECtHR: Relinquishment in favour of the Grand Chamber in the case Macate v. Lithuania to examine case on children’s book of LGBT fairy tales
Grand Chamber to examine case on children’s book of LGBT fairy tales
The Chamber of the European Court of Human Rights to which the case Macatë v. Lithuania had been allocated has relinquished jurisdiction in favour of the Grand Chamber of the Court . (link)
The case concerns a book for nine-ten-year-olds written by an openly lesbian children’s author containing six stories based on traditional fairy tales but including characters from marginalised social groups and topics such as emigration and bullying. Two of the six fairy tales contain story lines of romantic relationships and marriages between persons of the same sex. Following a recommendation issued by the Inspectorate of Journalistic Ethics, the book was labelled by the publisher as possibly harmful to children under 14 years of age.
The applicant, author of the book, died but her mother is continuing the proceedings before the ECHR in her place.
USA: Virginia high court stops suspension of anti-transgender teacher
The Supreme Court of Virginia on Tuesday affirmed an injunction reversing the suspension of a Loudoun County teacher who spoke against the school’s gender policy. Tanner Cross, a gym teacher at a Loudoun County Elementary School, criticized a proposed district policy that would ensure equal treatment of transgender students. Cross declared during a May 25, 2021, school board meeting that he would “not affirm that a biological boy can be a girl and vice versa because it is against [his] religion. It’s lying to a child. It’s abuse to a child. And it’s sinning against [his] God.”
School officials received a negative parent comment regarding Cross’ speech and removed him from his post greeting children in the morning on May 26. Later that day, four more parents emailed the school to voice concerns about Cross’ beliefs. On May 27, school officials placed Cross on administrative leave with pay for engaging in conduct “that had a disruptive impact on the operations of Leesburg Elementary.”
The court ruled that Cross’ speech at the meeting was protected under Article I § 12 of Virginia’s constitution because he spoke on an “issue of social, political, or other interest to a community,” and his interest in making public comments outweighed the school board’s “interest in providing effective and efficient services to the public.” The court asserted that several parent emails did not amount to a significant disruption of the school’s operation.
The court cited a US Court of Appeals for the Seventh Circuit case that clarified that the First Amendment “protects rank-and-file employees from discharge for taking a public stand on how the agency should be managed, [but] it does not protect those who act on their views, to the detriment of the agency’s operations.”
The order implies that, should Cross act on his beliefs in a way that does harm students or the school’s operations in the future, the school could rightfully suspend him. Pending further action by Cross or Loundoun County, the school is temporarily enjoined from suspending Cross.
The post Virginia high court stops suspension of anti-transgender teacher appeared first on JURIST – News – Legal News & Commentary.
India court directs action by government and medical associations to tackle queerphobia in medical curriculum
The Madras High Court Tuesday observed that queerphobia is being affirmed in the curriculum of the country’s medical courses, leading to judgement and prejudice against LGBTQIA+ communities.
The court was hearing a petition from a lesbian couple seeking court protection from their relatives who disapproved of their relationship and had filed “missing girl” complaints with the police in order to harass and pressurize the couple. The court had issued guidelines in June prohibiting conversion therapy and mandating the state authorities to ensure the protection of the LGBTQIA+ community. However, compliance remained dismal, which prompted the court to evaluate the reasons underlying stigmatization of the community in society.
As a result, it noted a report submitted by Dr. Trinetra Haldar Gummaraju, which illustrated how the curriculum of undergraduate students of forensic medicine describes “sodomy,” “lesbianism” and oral sex as sexual offences, and “transvestism” (cross-dressing) as a “sexual perversion.” The court raised concerns about queerphobia being legitimised throughout the education of medical professionals:
As important as it is for an advocate or a judge to take up a client’s case or to decide the case, as the case may be without being personally judgemental about them, it is equally or even more important for a professional from the medical and mental health professionals’ fraternity to be non-judgemental and free of moral or personal prejudices about their patient’s or client’s identity on the gender spectrum or their sexuality. Knowledge about a patient’s gender identity and sexuality may be of interest to a doctor, physician and a mental health professional if it is pertinent in cracking the course of treatment, but the course of treatment cannot be one which aims to “cure” their gender identity or sexuality itself.
The court thus directed the Additional Solicitor General to bring these issues to the attention of the National Medical Commission and the Indian Psychiatric Society as well as to direct them to file a report on their proposed future course of action to bring necessary changes in the curriculum.