Author Archives: Andreas R. Ziegler

The Indian Supreme Court Collegium Picking its Battle (discriminatory treatment of persons who openly identify as a part of the LGBTQIA+ community)

Article by Jannani M on Verfassungsblog


In an unprecedented move, the collegium of the Supreme Court of India on the 17th and 18th of January, 2023, passed resolutions calling out the executive’s delay in the judicial appointments of five advocates – Mr. Saurabh Kirpal, Mr. Somasekhar Sundaresan, Mr. John Satyan, Mr. Amitesh Banerjee and Mr. Sakya Sen – by publicly countering the government’s objections against their appointment. In this piece, I discuss how the Supreme Court collegium has confronted the discriminatory treatment of persons who openly identify as a part of the LGBTQIA+ community in the process of judicial appointments by standing up to the executive’s bullying. The piece also looks into how the collegium has confronted the union government’s attempt to suppress dissent among advocates and why these resolutions are highly consequential.

What is the Supreme Court Collegium?

In India, the Supreme Court collegium is primarily in charge of appointments or transfer of judges in the High courts and the Supreme Court. The collegium consists of the Chief Justice of India and the four most-senior judges of the Supreme Court of India. This collegium recommends names of persons qualified to be judges to the Central Government and the latter may accept such recommendation or raise objections and request clarifications from the collegium. According to the Memorandum of procedure of appointment of High Court Judges, in case any of the recommendations are sent back with objections, the Chief Justice of India has to review the recommendation and reasons mentioned by the Union. It is important to note that the Central Government is bound to accept the recommendations upon reiteration by the Supreme Court.

The primacy of the Supreme Court collegium though is not expressly rooted in constitutional provisions but has been developed over time by various landmark judicial pronouncements. As previously highlighted in this blog by Medha Srivastava, the collegium does suffer from flaws which includes the lack of transparency in its decision-making process. Despite these limitations, it must be noted that several senior advocates have endorsed this system as one that is essential in safeguarding the independence of the judiciary from the executive.

Discrimination Based on Sexual Orientation

Five years ago, India was at the cusp of witnessing history as Mr. Saurabh Kirpal’s name was recommended by the collegium for appointment to the bench. His appointment would make him the firstopenly gayjudge in the nation. However, the Central Government did not accept the recommendation for years and due to the opaque nature of the process the public was unaware of objections to his appointment. This prompted the collegium of the Supreme Court to put on public record both the objections raised by the executive against Mr. Kirpal’s appointment and its rebuttal against it, in a recent resolution.

  1. His partner is a swiss national (a citizen of a foreign country) and thus could pose a national security concern.
  2. He is open about his sexual orientation, passionately advocates for the “cause of gay-rights” and is in an intimate relationship. The government stated that this is indicative of Mr. Kirpal’s “bias”.

The collegium, while rebutting the first objection stated that the partner was a citizen of a country which was not categorized as an ‘enemy’ country and thereby the individual conduct of Mr. Kirpal’s partner would not compromise national security. It points out that the use of national security as an objection to Mr. Kirpal’s appointment is inherently aimed at discriminating against him on the basis of his sexual orientation considering that there are some persons in top leadership positions in the country with spouses who are foreign nationals.

Addressing the second objection, the collegium openly declared that not elevating a candidate on the grounds of his advocacy for rights or his sexual orientation would be “manifestly contrary to the principles laid down by the Supreme Court”. It goes a step ahead and even states that the advocate’s openness about his sexual orientation “goes to his credit” and his appointment to the bench would add to the diversity of the high court and bring about inclusion. This effectively countered the narrative of the Central Government which claimed that his involvement with the LGBTQIA+ movement in India is indicative of his “bias and prejudice”. The collegium also lauded his overall merit and highlighted the value addition that his experience would bring to the bench.

Thereby, in responding to the two objections, the Supreme Court has torn down the facade of the seemingly neutral “national security” concerns or accusations of “bias” and has effectively gone to considerable length to implement the judgment in Navtej Johar v. Union of India in judicial appointments which acknowledged that no person shall be subjected to direct or indirect discrimination against irrespective of their sexual orientation.

Protecting the Right to Dissent

Regarding the appointment of two advocates, Somasekhar Sundaresan and John Satyan, the collegium’s recommendation was objected on account of their criticism against the government. Mr. Sundaresan was accused by the Department of Justice for being a “highly biased opinionated biased person” for his “selective” criticism against the government’s policies. The appointment of Mr. Sathyan on the other hand was objected on the basis that he had shared a news article that was critical of the prime minister.

It is important to note that, prior to the elevation as judge of the Supreme Court, one of the sitting judges had praised the prime minister as a “hero”. Some former members of the judiciary were also elevated despite apprehensions regarding their political views. Thereby, holding a political opinion prior to elevation has in the past not necessarily stopped persons from being appointed as judges of the Supreme Court or the High Courts.

In effect, the objections raised against Mr. Sundaresan and Mr. Sathyan in the respective Intelligence Bureau reports have the effect of curbing dissent against the government from members of the bar who aspire to be a part of the bench. The Supreme Court collegium in its recent resolution responding to the objections rightly points out that such a move by the Department of Justice compromises the right to freedom of speech and expression guaranteed under article 19(1)(a) of the Constitution of India. It also states that voicing such opinions in no way compromises the suitability and the integrity of the person who is to be appointed as a judge. By doing so, it resists the attempt of the Central Government in creating a chilling effect on free speech by protecting the right to dissent which the head of the collegium, Justice Chandrachud had earlier referred to as the safety valve of democracy.


On the 24th of January, 2023, the law minister flagged national security concerns over the extracts of the Intelligence Bureau report being referred to by the Supreme Court collegium in its resolutions (which is publicly accessible). However, it may be pertinent to note that the Supreme Court in Manohar Lal Sharma v. Union of India, has categorically held that the state cannot receive a “free pass” to justify its actions by using national security as a shield.

By virtue of the landmark judgment of the Supreme Court in the Second Judges Case, the Central Government is bound to approve the appointment of the persons whose name has been reiterated by the Supreme Court collegium. The reiteration comes at a time when the majoritarian union government has been attempting to undermine the independence of the judiciary by trying to create inroads into the process of appointing judges and delegitimizing wellrecognized constitutional safeguards developed overtime by judicial precedents to protect citizens’ rights against the state’s encroachment into fundamental rights and civil liberties. It sends a strong message that this collegium and especially the Chief Justice are unafraid to pick the right battles to ensure that equality of citizens, freedom of speech and expression and the autonomy of the judiciary are guarded.

USA: Colorado court denies appeal of baker who refused to bake cake for transgender woman

USA: Colorado court denies appeal of baker who refused to bake cake for transgender woman

The Colorado Court of Appeals Thursday denied a baker’s appeal over his refusal to bake a transgender birthday cake. Masterpiece Cakeshop, run by Jack Phillips, was denied an appeal following the trial court’s ruling that the shop discriminated against Autumn Scardina when they refused to bake and sell her a blue and pink birthday cake. When ordering the cake, Phillips agreed to provide the custom cake until Scardina shared the symbolism of her color choice—that it represented her transgender identity.

After determining that the colors of the cake, along with no symbols or writing, did not violate Phillips’ freedom of religion, the trial court ordered Phillips to pay a $500 fine. Phillips attempted to pay the fine while still contending that his bakery did not violate the Colorado Anti-Discrimination Act (CADA). Scardina refused the payment, and the trial court held that the fines did not negate Scardina’s original discrimination claims. The trial court did not offer a final judgement, but dismissed the case.

Phillips filed an appeal on the basis that the attempt to pay the fine, though rejected, rendered Scardina’s claim moot, that he did not in fact violate CADA, that the ruling violated his right to be free from compelled speech, and that CADA itself violates Phillips’ right to freedom of religion.

The appeals court rejected the contention that Phillips’ attempt to pay Scardina rendered her claim moot. The court reasoned that CADA was not designed primarily to compensate individual claimants, but rather to implement the broad policy eliminating intentional or discriminatory practices.

The court rejected the claim that Phillips did not violate CADA—finding that the baker’s original agreement to make the cake was only rescinded after finding out Scardina’s transgender status.

The appeals court also rejected the claim that baking the cake would constitute a violation of the right of freedom from compelled speech. Phillips’ testimony in court was that he would make the same cake for any other customer, and that the colors of the cake had no inherent meaning outside of its context. A pink and blue cake does not rise to the level of protected speech, and thus does not violate Phillips’ right to freedom from compelled speech, according to the court.

Finally, the claim that baking this cake would violate Phillips’ freedom of religion was rejected on the basis that the cake expressed no message, religious or secular.

This case follows a previous action against Masterpiece Cakeshop heard in the US Supreme Court in 2018, which ruled in favor of Phillip who refused to bake a wedding cake for a same-sex couple.

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Battling the hydra in EU anti-discrimination law

Article by Lenka Křičková on Verfassungsblog


Can a company refuse to conclude or renew a contract with a self-employed person because he is gay? And may contractual freedom prevail over the prohibition of discrimination in such a situation? The European Court of Justice (ECJ) has recently tackled these questions in case C- 356/21, J.K. v. TP. A short answer stemming from the judgment would be a resounding no. Yet, a further analysis is in order because the judgment also brings a significant shift in the ECJ’s anti-discrimination case law. We argue that by interpreting the scope of the EU anti-discrimination directives as covering the conclusion of contracts by self-employed workers, the ECJ has extended the protection against discrimination to unexpected areas. That raises questions about how the directives will be applied in practice when self-employed workers claim discrimination.

A perfect case for litigation

J.K. worked for TP, a Polish public television company, on the basis of consecutive short-term contracts for specific work within his independent economic activity. Specifically, he prepared various audiovisual materials, while working two one-week shifts per month. His contract was not renewed after he and his male partner published a YouTube video promoting the equality of same-sex couples. In response, he sued TP for discrimination based on sexual orientation.

The referring Polish court requested a preliminary ruling on the interpretation of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (Directive). The ECJ was mainly asked to rule whether (i) the applicant’s activity constitutes self-employment falling within the Directive’s scope, and (ii) whether the protection against discrimination applies in relation to refusal to conclude or renew a contract with a self-employed person due to his sexual orientation. If so, the referring court was (iii) interested in whether such refusal could be justified by contractual freedom guaranteed by Polish law.

Strategically, one could hardly find a better case to litigate these issues. After 7 years of working for the company, the applicant’s contract was suddenly not renewed. The facts of the case show quite clearly that this happened because the applicant is gay, as the contractual relationship ended soon after he published the video and although his work had been positively evaluated shortly before. The image of a worker being disadvantaged particularly because of his sexual orientation arouses an instant sense of unfairness, since such unequal treatment is nearly impossible to justify. If the applicant were an employee, the Directive would, without any doubt, apply. Thus, it may seem inappropriate to not afford him protection against discrimination only due to the nature of the contractual relationship which otherwise closely resembles employment. Additionally, the case occurred in Poland, where the lives of homosexuals have become increasingly difficult, and a public television station owned by the state committed the alleged discrimination. Altogether, these circumstances made it relatively easy – almost irresistible – for the ECJ to interpret the Directive broadly, in order to protect the applicant and other people in similar positions.

In the end, that is what the ECJ did. It held that the Directive, according to its Art. 3, protects self-employed workers like the applicant and covers even the conclusion, renewal or termination of their contracts for specific work. Furthermore, under Art. 2(5) of the Directive, contractual freedom cannot justify discriminatory conduct in these situations.

However simple this conclusion may appear at first sight, we argue the case brings noteworthy novelties to EU anti-discrimination law. As we explain below, the ECJ for the first time clarified the Directive’s scope regarding self-employed people, while also creating new uncertainties about the practical application of the Directive.

Extending the scope of the EU anti-discrimination directives

The ECJ mainly had to interpret Art. 3 of the Directive. The key provisions state that the Directive shall apply in relation to “conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion” (Article 3(1)(a) of the Directive) and to “employment and working conditions, including dismissals and pay” (Article 3(1)(c) of the Directive).

It may seem obvious that the Directive protects self-employed people like the applicant, since Art. 3(1)(a) explicitly mentions self-employment. The actual challenge for the ECJ was to explain what falls within the wording of Art. 3(1)(a) and what not. The ECJ decided to interpret the provision broadly.

In the judgment, the ECJ reasoned that the Directive’s scope extends beyond protecting workers as the weaker party in employment relationships and covers all occupational activities regardless of their legal form, including activities carried out by self-employed workers in order to earn their livelihood. Simultaneously, the ECJ distinguished occupational activities from mere provision of goods or services that the Directive does not affect. Additionally, although the national court should assess the facts of the case at hand, the ECJ clearly hinted that the applicant’s situation falls within the Directive’s scope.

Next, the ECJ held that “conditions for access” to self-employment include the conclusion of a contract for specific work (such as the applicant’s contract). This may arguably be considered the most important aspect of the case, although the ECJ downplayed it by devoting it considerably less space in the reasoning than to the other points. The ECJ merely stated that the conclusion of such a contract may be essential for the applicant as a self-employed person to pursue his occupational activity effectively. Such interpretation is certainly possible and reflects the ECJ’s case law on access to employment that the ECJ understands very broadly as well (including e.g. public statements ruling out recruitment of homosexual persons). However, the Polish government argued that “conditions for access to self-employment” only involve general conditions for entering and exercising the profession, not the self-employed worker’s subsequent contractual relationships. In the past, the Czech ombudsman or the UK Supreme Court, for instance, promoted the same view in their decision-making. Therefore, the broader reach of anti-discrimination law in this regard may come as a novelty in some Member States. It is a pity that the ECJ did not elaborate on this point more thoroughly.

Moreover, the ECJ added that Art. 3(1)(c) addressing “employment and working conditions” applies to self-employment, too. Thus, the Directive’s protection extends to the professional relationship in its entirety, including termination or non-renewal of the contract. Again, the ECJ chose the broadest available interpretation, despite Art. 3(1)(c) not referring to self-employment.

In our opinion, the ECJ sufficiently supported its reasoning with textual and teleological arguments, as well as with its previous case law (especially case C-587/20, HK/Danmark and HK/Privat). Nevertheless, it is important to note that the ECJ interpreted the Directive very broadly, as the Directive’s scope is now confirmed to extend to potentially unexpected areas where contractual freedom used to prevail. In addition, the same extensive interpretation should be given to the other EU anti-discrimination directives (prohibiting discrimination based on race, ethnic origin and sex) whose scope is defined by identical wording (see Art. 3 of the Directive 2000/43/EC, Art. 14 of the Directive 2006/54/EC).

Practical consequences

The ECJ’s decision-making often resembles fighting a hydra. Once the ECJ cuts one head off (provides one answer), two more heads (issues) emerge. That has certainly happened in this case. While the ECJ has clarified the Directive’s scope regarding self-employed workers, several new problems consequently arise.

First, the prohibition of discrimination now clearly applies to contracts of self-employed people, who are predominantly entrepreneurs. The ECJ has thus left the safe harbor of standard employer-employee relationships, where the protection of the weaker party rules, and entered the wild entrepreneurial waters of business-to-business (B2B) relationships, where contractual freedom is paramount. Yet, many B2B relationships conceptually differ from other areas falling within the scope of EU anti-discrimination directives, where special interest in regulation exists, typically because essential services (e.g. education, healthcare) or weaker parties (e.g. employment, consumers’ access to goods and services) are involved. On the contrary, it could be argued that entrepreneurship requires self-employed people to handle the tough environment of the free market themselves.

Second, the ECJ has tried to distinguish occupational activities from provision of goods and services, in order to limit the wide range of situations when self-employed people conclude work contracts and could thus claim discrimination. Without any guidance from the Directive’s text, the ECJ made up criteria that specify the occupational activities covered by the Directive. Namely, such occupational activities cannot consist of “mere provision of goods or services to one or more recipients” (para. 44), but need to be “genuine” and pursued within “a legal relationship characterized by a degree of stability” (para. 45). Regarding the applicant, the ECJ emphasized that he engaged in “a genuine and effective occupational activity, pursued on a personal and regular basis for the same recipient, enabling the applicant to earn his livelihood, in whole or in part” (para. 47).

By introducing these limits, the ECJ probably wanted to especially protect self-employed people like the applicant, whose contracts in many ways resemble employment. If that was the intention, however, the ECJ did not manage to fulfill it very effectively. For instance, looking at the criteria (quoted above) that the ECJ used to distinguish self-employment from provision of goods and services, none of them excludes business-to-consumer (B2C) relationships, once a self-employed person serves a particular customer regularly. Even B2C relationships often involve genuine and personal work which is carried out on a stable, long-term basis. Therefore, service-providers could sue their customers for discrimination, which is uncommon in anti-discrimination law, as the protection against discrimination usually works the other way round. It is hard to imagine how every ordinary Joe (likely ignorant of anti-discrimination law intricacies) with a professional cleaner or caretaker visiting every week may face discrimination claims. And, if so, why would discrimination be allowed if the same service providers worked for the customer only once or sent their employee to do the work? Quite possibly, the ECJ have not foreseen the possible consequences for B2C relationships, as neither the judgment nor the Advocate General’s opinion address them at all.

Last but not least, it is not clear how other provisions of the Directive will work in relation to self-employment. For example, Art. 3(1)(c) includes pay among employment and working conditions, but striving for equal pay in entrepreneurial relationships might prove to be very complicated in practice. Also, the shared burden of proof under Art. 10 of the Directive may create problems. Business deal negotiations usually do not look like a transparent recruitment of employees, so proving non-discrimination will probably be extremely challenging for the respondent.


All of this does not necessarily mean that the ECJ was wrong. The judgment could actually be perceived as a step in the right direction because it might help anti-discrimination law react to the digital transformation of the economy, and related changes in society and work relations. Broad protections against discrimination in self-employment make it significantly easier for all gig workers, who perform their jobs under various types of precarious contracts, to defend themselves against discrimination, irrespective of the precise legal nature of their work relationships.

Still, we find it important to point out that the judgment has silently brought a little game-changer into EU anti-discrimination law. Self-employed workers can now file anti-discrimination lawsuits in many situations that may have previously been considered as falling outside the Directive’s scope. And many alleged perpetrators of discrimination might be surprised that the Directive applies to their behavior. How well this will be accepted, particularly in Member States where anti-discrimination law does not exactly flourish, remains to be seen. In the meantime, the ECJ will hopefully have an opportunity to further clarify the newly emerged issues.

UK: Scotland halts movement of transgender prisoners to women’s prison

UK: Scotland halts movement of transgender prisoners to women’s prison

The Scottish government Sunday announced a prohibition on moving transgender persons with any history of violence against women into women’s prisons until the Scottish Prison Service (SPS) completes a review of transgender prisoner management. Justice Secretary Keith Brown said the measures are an “urgent” response after transgender woman Isla Bryson was found guilty of raping two women and was sentenced to Cornton Vale Women’s Prison in Stirling last Tuesday. Another transgender prisoner, Tiffany Scott, was due to move to a women’s prison last weekend.

Brown stressed that the policies at SPS have not been changed or impacted by the recent passing of the Gender Recognition Reform Bill and said, “[D]ecisions about the location and management of prisoners will continue to be based on thorough risk assessment, drawing on the expertise and input of relevant professionals and applying any lessons learned from the reviews referred to.” A report will be sent to the CEO of SPS by Friday.

First Minister of Scotland Nicola Sturgeon spoke on the issue in the Scottish Parliament last week. There, she stated, “In general, any prisoner who poses a threat of sexual offending will be segregated from other prisoners, including during any period of assessment.”

Equality Network spoke up on the matter, maintaining that anyone who has committed sexually violent crimes and poses risks to women should not be housed with women on the female estate. Nonetheless, the group emphasized the significance of having individualized assessments and subjective decisions. For example, if a transwoman poses no risk to other women in custody, she should be rightfully accommodated in the female estate since she might face “significant risk” if placed elsewhere. Equality Network said:

A blanket rule about where trans people in custody are accommodated would be wrong.

The assessment of where a trans person in custody is held does not depend on whether or not they have a gender recognition certificate (GRC).

— Equality Network (@LGBTIScotland) January 27, 2023

Under the new measures, Bryson is under segregation at Cornton Vale. In Scottish prisons, transgender people make up around 0.2 percent of the population or 15 people.

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USA: US immigration board must decide whether perception of being LGBT in home country is grounds for asylum, says US appeals court

US immigration board must decide whether perception of being LGBT in home country is grounds for asylum, says US appeals court

The US Court of Appeals for the Ninth Circuit Thursday issued an opinion holding that the US Board of Immigration Appeals (BIA) must consider whether non-US citizens who are perceived in their home countries to be LGBT and persecuted for being considered part of that group can be granted asylum in the US.

The decision came from the case Antonio v. Garland, in which Rebecca Rufina Cristobal Antonio petitioned for the review of the BIA decision “upholding the denial of asylum and related relief.”

Antonio was “verbally and physically harassed and threatened her with death because [people in her home country] perceived her to be a lesbian because she wore men’s clothing to work.”

The decision suggests that people seeking asylum because they are perceived to be LGBT could be one the requirements to be granted asylum in the US. The decision makes specific mention that an individual would not be received to “prove” that they were LBGT. Rather, it would be the individual’s burden to prove that their “persecutors were ‘motivated by a belief’ that” the individual is LGBT.

The court based its decision in the criteria used for other asylum claims that the claimant must provide evidence “that the persecutor was motivated by a belief that the petitioner held the political opinion.”

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