USA – Illinois: Trans masculine person who gave birth will make history by being named as child’s dad on birth certificate
Ugandan Muslim leader faces life in prison for accidentally marrying a man
SOGICA (Sexual Orientation and Gender Identity Claims of Asylum – A European Human Rights Challenge) Conference – 7-8 July 2020, University of Sussex
The deadline for emailing them a submission for the final conference is Monday 22 January 2020.
Registration to attend the conference is also open and is free although we are asking for contributions to our bursary fund to enable project participants and activists to attend.
For full details, please visit the conference page of our website.
US Federal appeals court blocks attempt to discharge members of Air Force due to positive HIV status
The US Court of Appeals for the Fourth Circuit upheld a ruling on Friday that blocked the Trump administration’s attempt to discharge members of the Air Force due to their HIV positive status.
The ruling, written by Judge James Wynn, highlights what he describes as the failure of the US government to take into consideration the scientific developments in treating HIV and the effect that has on an individual’s ability to perform his or her job. “[S]uch obsolete understandings cannot justify a ban, even under a deferential standard of review and even according appropriate deference to the military’s professional judgments.”
The original complaint, filed in the US District Court for the Eastern District of Virginia, alleged that two air force members were discharged solely due to the fact that they were carriers of HIV, even though they were asymptomatic and adhered to a strict treatment regime scientifically proven to halt the progression of HIV. Plaintiffs argued that their discharge was a violation of the Equal Protection under the Fifth Amendment’s Due Process Clause. Plaintiffs stated that their HIV status served as a discriminatory basis for discharge even though the disease did not have any bearing on how they carried out their duties.
Service members with HIV do not enjoy the same treatment. Contrary to widespread misunderstandings about HIV a new diagnosis does not have the same ramifications it did when HIV first entered the public consciousness decades ago. For most people living with HIV, medication renders their HIV inconsequential to their daily lives. Service members with HIV continue to contribute meaningful to the military and to their country, just as any other Service member would.
This new ruling will allow plaintiffs to continue to serve in the US Air Force and serve as precedent for discriminatory discharge from not only the Air Force but other branches of the US military.
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Norway nonprofit alleges Grindr shared personal user data with ad companies in violation of EU rules
The Norwegian Consumer Council, a nonprofit organization, released a report Tuesday alleging that dating app Grindr is in violation of the EU’s General Data Protection Regulation (GDPR). The group has filed formal complaints against Grindr and five ad companies with the Norwegian Data Protection Authority (DPA).
The tests revealed that Grindr shares location and device information with several different companies, and the organization notes that simply sharing the fact that a user has the app installed on their device could potentially reveal that user’s sexual orientation, given that Grindr advertises itself as “the world’s largest social networking app for gay, bi, trans, and queer people.” Grindr also shares a user’s advertising ID, which is a unique identifier attached to a mobile phone and can be used to track users across different services.
While Grindr’s privacy policy informs users that the app shares some user data including the advertising ID with third parties, how that data is processed by those parties is governed by the third parties’ own privacy policies. The report accuses Grindr of “attempting to shift accountability for the advertising technologies that it is using away from itself” when it asks users to read through the policies of all the parties that may receive that data. For example, Grindr lists Twitter’s MoPub as an advertising partner, and encourages users to read the policies of MoPub’s partners, but MoPub itself has over 160 partners, “which clearly makes it impossible for users to give an informed consent to how each of these partners may use personal data.”
The complaints allege that the consent collected by Grindr from users is not a valid consent under the GDPR, and therefore all the data processing conducted by Grindr and the ad companies is unlawful. The complaint requests a full investigation, the erasure of all unlawfully processed personal data, and imposition of the maximum possible fine under GDPR against the companies involved.
Another European data privacy advocate, noyb, announced that it plans to file similar complaints with the Austrian DPA within the next few weeks.
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USA: Tennessee Senate approves bill allowing adoption agencies not to place with same-sex couples
The Tennessee Senate on Tuesday approved HB 836, a bill that would allow child welfare agencies to discriminate against LGBTQ+ families in adoption proceedings based on “religious or moral convictions or policies.” The bill was approved by the House last April and is awaiting review by Tennessee Governor Bill Lee, who has expressed an intent to sign HB 836 into law.
As passed on Tuesday, HB 836 holds that, “No private licensed child-placing agency shall be required to perform, assist, counsel, recommend, consent to, refer, or participate in any placement of a child for foster care or adoption when the proposed placement would violate the agency’s written religious or moral convictions or policies.” Supporters of HB 836 see the bill as a necessary protection against potential lawsuits hostile to religious beliefs. Seven states have enacted similar measures, including Kansas, Oklahoma, Texas, Alabama, South Dakota, Virginia and Michigan.
HB 836’s passage in Tennessee mirrors efforts by the Trump administration to develop a national rule affording similar protections. President Donald Trump’s proposed rule would do away with an Obama-era measure preventing discriminatory foster care agencies from receiving federal funding.
Tennessee adoption practices are not expected to change should HB 836 become law. Rather, the bill would provide legal protections for agencies that deny adoption to LGBTQ+ families based on religious beliefs and moral convictions. Opponents of HB 836 have expressed concerns that the bill interferes with LGBTQ+ rights and limits the potential for needy children to be fostered or adopted.
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ECtHR: Refusal by Lithuania to investigate hate-speech comments about same-sex kiss on Facebook was discriminatory
Beizaras and Levickas v. Lithuania (press release)
http://hudoc.echr.coe.int/eng?i=001-200344 (full text of judgment)
Today, the ECtHR found sexual orientation discrimination (violating Article 14 taken with Article 8 EConHR) in Beizaras & Levickas v. Lithuania. The case concerns failure to investigate anti-LGB hate speech (including threats of violence) posted on Facebook, after a male-male couple posted to Facebook a photo of themselves kissing.
Robert Wintemute, Professor of Human Rights Law at King’s College London (UK) and co-representative of the applicants, said: “I am very pleased that the European Court of Human Rights has sent such a strong message to national authorities across Europe that they must take anti-LGBTI hate speech seriously, and investigate complaints, even about a single hateful comment on Facebook, let alone one that LGBTI persons should be killed. The Court rejected the Government of Lithuania’s claim that there had been no discrimination in the decision not to investigate. On the contrary, it was the Lithuanian courts’ ‘disapproval of the applicants demonstrating their sexual orientation’, by posting on Facebook a photo of themselves kissing, that proved the discrimination. I would read the judgment as implicitly upholding the right of a same-sex couple to express affection in public, whether in a park or cafe or bus, or on the street or on Facebook, in the same way as a different-sex couple.”
Excerpts from the Judgment:
Exhaustion of remedies in Lithuania
81. Against the above background, the Court is satisfied that given the circumstances of this case and bearing in mind the serious nature of the allegations, it should have been open to the LGL Association, whose members the applicants were …, and which is a non-governmental organisation set up for the purpose of assisting people who have suffered discrimination to realise their right to a defence, including in court, to act as a representative of the applicants interests within the domestic criminal proceedings …
Merits of the applicants’ complaints
118. In the Governments submission, the case disclosed no element of discrimination …, for the domestic authorities decision not to start a criminal investigation regarding the comments at issue had nothing to do with the applicants sexual orientation … Instead, their argument essentially was twofold: firstly, the applicants had themselves wished to provoke such a reaction, partly by using a religious symbol on the first applicants clothing, and, secondly, the comments at issue had not reached a level at which they could be considered criminal. …
119. The Court observes that although in their application to the Court the applicants stated that the idea behind their posting of the photograph in question had been to announce the beginning of their relationship, in their subsequent observations they admitted that the photograph had been meant to incite discussion about gay peoples rights in Lithuania … That being so, and although the Government saw the latter fact as provocative, the Court does not view either of those reasons as illegitimate or meriting their suppression. On the contrary, it has already held that there is no ambiguity about the member States recognition of the right of individuals to openly identify themselves as gay, lesbian or any other sexual minority, and to promote their rights and freedoms … The Court also points to LGBT-friendly Vilniuss follow-up posts on its own Facebook page in which it was stated that the applicants photograph had been posted to serve the aim of helping other LGBT people in Lithuania, and potentially those who were condemned by others and perhaps [standing] on the roof of some house, or on the edge of a window sill or balcony, to move to a safer spot. The applicants also confirmed this intention when interviewed by the LGL Association … While accepting the Supreme Courts finding that the atmosphere in respect of issues concerning homosexuality is tense in Lithuania .., the Court cannot view the above-mentioned intentions, as indicated by the applicants, as having threatened to cause public unrest … In fact, it is a fair and public debate about sexual minorities social status that benefits social cohesion by ensuring that representatives of all views are heard, including the individuals concerned …
120. … it transpires that the criminal courts which examined the applicants case focused on what they saw as the applicants eccentric behaviour, the argument which the Court will address next.
121. The Court thus recalls that the Klaipëda District Court considered that the picture of two men kissing did not contribute to social cohesion and the promotion of tolerance … That view was fully endorsed by the Klaipëda Regional Court, which also found that it would have been preferable if the applicants had only shared such pictures among like-minded people, since the Facebook social network allowed such a possibility … Given those express references to the applicants sexual orientation, it is clear that one of the grounds for refusing to open a pre-trial investigation was the courts disapproval of the applicants demonstrating their sexual orientation …
122. … In the present case, although the Klaipëda District Court cited the alleged incompatibility between maintaining family values as the foundation of society and acknowledging the social acceptance of homosexuality, the Court sees no reason to consider those elements as incompatible, especially in view of the growing general tendency to view relationships between same-sex couples as falling within the concept of family life …
123. … it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority. Were this so, a minority groups rights would become merely theoretical rather than practical and effective, as required by the Convention …
124. Taking into account all the evidence, the Court thus considers it established that the applicants have made a prima facie case that their homosexual orientation played a role in the way they were treated by the State authorities …
125. On the facts of this case the Court firstly notes the prosecutors view that the authors of the comments, including those stating that its not only the Jews that Hitler should have burned and that faggots … [should be thrown] into the gas chamber or into the bonfire or have a free honeymoon trip to the crematorium, or have their heads smash[ed] or be castrated or be [shot] …, had acted unethically but that such amoral behaviour had not reached the threshold required by Article 170 §§ 2 and 3 of the Criminal Code …. The Klaipëda District Court came to the same conclusion, finding that those comments were mere obscenities and were simply words not chosen properly … However, … the Court is unable to subscribe to such conclusions of the Lithuanian authorities. ,,, Moreover, the Court cannot but observe that other comments, even without calling for violence, regarding the Jews … have been treated by the Lithuanian authorities as falling under Article 170 of the Criminal Code. It also considers that the Government have not provided weighty arguments to refute the applicants view that if comments such as those uttered in their case did not amount to inciting not only hatred but even violence on the basis of the applicants sexual orientation, then it is hard to conceive what statements would … Therefore, the Court, sharing the view of the Constitutional Court that the attitudes or stereotypes prevailing over a certain period of time among the majority of members of society may not serve as justifiable grounds for discriminating against persons solely on the basis of their sexual orientation, … considers that the assessment made in this case by the national authorities was not in conformity with the fundamental principle in a democratic State, governed by the rule of law …
127. … Accordingly, the Court does not find it unreasonable to hold that even the posting of a single hateful comment, let alone that such persons should be killed, on the first applicants Facebook page was sufficient to be taken seriously. This is further supported by the fact that the photograph had gone viral online and received more than 800 comments … The report on Lithuania by the ECRI also indicates that the country has a problem and that most hate speech takes place on the Internet, and also on social networks … The Court therefore also rejects the Governments argument that comments on Facebook are less dangerous than those on the Internet news portals … Neither can it see as pertinent the Governments argument that the people who commented negatively on the Facebook page of the first applicant had not outnumbered the applicants and their supporters …
128. … The Court observes that the instant case concerns undisguised calls on attack on the applicants physical and mental integrity …, which require protection by the criminal law … Article 170 of the Criminal Code indeed provides for such a protection … However, due to the Lithuanian authorities discriminatory attitude, the provisions of this Article were not employed in the applicants case, and the requisite protection was not granted to them. The Court considers that, in the circumstances of this case, it would have been manifestly unreasonable for the victims as well as downplaying the seriousness of the impugned comments to require the applicants to exhaust any other remedies. Accordingly, the Governments objection to the effect that the applicants could have had recourse to other civil law remedies …, must be dismissed.
(iii) Conclusion
129. Having regard to all the material at hand, the Court thus finds it established, firstly, that the hateful comments including undisguised calls for violence by private individuals directed against the applicants and the homosexual community in general were instigated by a bigoted attitude towards that community and, secondly, that the very same discriminatory state of mind was at the core of the failure on the part of the relevant public authorities to discharge their positive obligation to investigate in an effective manner whether those comments regarding the applicants sexual orientation constituted incitement to hatred and violence, which confirmed that by downgrading the danger of such comments the authorities at least tolerated such comments … In the light of those findings the Court also considers it established that the applicants suffered discrimination on the grounds of their sexual orientation. It further considers that the Government did not provide any justification showing that the impugned distinction was compatible with the standards of the Convention …
130. Accordingly, the Court holds that in the present case there has been a violation of Article 14, taken in conjunction with Article 8 of the Convention.
155. The Court cannot but find that the statistics provided both by the Government and the applicants, as well as those by the third-party interveners as well as by international bodies, show otherwise [no willingness to prosecute]. … the Court notes information regarding the Lithuanian law-enforcement institutions failure to acknowledge bias-motivation of such crimes and to take such an approach which would be adequate to the seriousness of the situation … In this connection the Court reminds that it has already held in Identoba and Others … that without such a strict approach on the part of the law-enforcement authorities, prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence or even connivance in hate crimes. Regarding Lithuania, the most recent materials by the ECRI also show lack of a comprehensive strategic approach to tackle the issue of racist and homophobic hate speech by the authorities …
USA: A Republican “Bible-believing” Texas judge has been refusing to perform same-sex weddings, and she has gotten away with a public warning
The case should soon be reported here: https://www.stgh.li/entscheidungen
Das Partnerschaftsgesetz verstösst in Teilen gegen die Europäische Menschenrechtskonvention, doch die Regierung plant keine Abänderung.
Sie wollten heiraten, statt sich «nur» eintragen zu lassen. Deshalb gingen Lukas Oehri und sein Partner Dario Kleeb durch den Instanzenzug, um auf juristischem Weg herauszufinden, ob das aktuelle Partnerschaftsgesetz nicht diskriminierend ausgestaltet ist. Der Staatsgerichtshof gab ihnen zu diesem Umstand zwar nicht recht , fand aber an anderer Stelle einen diskriminierenden Absatz: Im Urteil StGH 2018/154 schreibt der StGH, dass das Verbot der Stiefkindadoption für eingetragene Paare gegen die Europäische Menschenrechtskonvention, kurz EMRK, verstosse.
Aktuell heisst es im liechtensteinischen Partnerschaftsgesetz in Artikel 25 unmissverständlich: «Personen, die in einer eingetragenen Partnerschaft leben, sind weder zur Adoption noch zu fortpflanzungsmedizinischen Verfahren zugelassen.» Der Staatsgerichtshof als Verfassungsgericht meint dazu, dass zwar in diesem Urteil nicht zu entschieden sei, ob «die Verbote des Art. 25 PartG und die damit verbundene Verweigerung der Begründung familiärer Beziehungen in ihrer konkreten Ausgestaltung weiterhin gerechtfertigt werden können oder auf eine unzulässige Diskriminierung hinauslaufen.» Im gewaltenteilenden demokratischen Rechtsstaat sei in erster Linie die Gesetzgebung dazu aufgerufen, für eine diskriminierungsfreie Ausgestaltung der familiären Beziehungen zu sorgen. Trotzdem werden die Richter dann deutlich: «Dass jedenfalls das Verbot der Stiefkindadoption nach Auffassung des Europäischen Gerichtshofs für Menschenrechte gegen Art. 8 EMRK in Verbindung mit Artikel 14 EMRK verstösst, wenn bzw. weil eine solche Stiefkindadoption durch einen heterosexuellen Partner möglich ist, sollte dabei nicht unbeachtet bleiben.»
Eine neue Lösung brauche eine breite Diskussion
Für die neue Justizministerin handelt es sich beim Verbot bzw. einer allfälligen Aufhebung eines solchen um eine sensible Wertungsfrage. Katrin Eggenberger erinnert daran, dass 2011 das Partnerschaftsgesetz im Zuge eines umfangreichen und intensiven politischen Diskurses entstanden ist, man könne die momentane Regelung deshalb als von der Mehrheit der Bevölkerung bestätigte Gesamtlösung ansehen. «Allfälligen Anpassungen müsste wiederum eine breite Diskussionen vorangehen, um die Vor- und Nachteile, gerade auch für die betroffenen Kinder, in einem ganzheitlichen Licht zu erfassen», so Eggenberger. Jegliche Reformen würden ausserdem auch die Frage des Stellenwerts der «traditionellen Familie» in Liechtenstein berühren.
Verschiedene Aspekte der Stiefkindadoption abwägen
Ausserdem gelte es auch, andere Aspekte einer Stiefkindadoption von eingetragenen Partnern abzuwägen. «Wie bereits bei der Schaffung des Partnerschaftsgesetzes ausgeführt wor-den ist, stammt eine Mehrheit der in einer gleichgeschlechtlichen Lebensgemeinschaft lebenden Kinder aus früheren heterosexuellen Beziehungen. Eine Zustimmung zur Stiefkindadoption seitens des Elternteils, welcher das Kind nicht in seiner Obhut hat, kommt eher selten vor», erklärt Eggenberger. Auch sei zu bedenken, dass mit der Stiefkindadoption die Rechtsbeziehungen zur Verwandtschaft des «abgebenden» Elternteils (z. B. zu den Grosseltern) auch gegen deren Willen erlöschen.
Justizministerin Katrin Eggenberger erklärt deshalb abschliessend, dass es aufgrund dieser Überlegungen aktuell keinen Grund gebe, eine gesetzliche Abänderung in Bezug auf die Stiefkindadoption von eingetragenen Partnern zu planen. «Die Regierung verschliesst sich der Thematik nicht, gesetzgeberische Schritte bedürfen aber einer sorgfältigen und umfassenden Diskussion, Beurteilung und Abwägung aller Vor- und Nachteile», so
Eggenberger.
Alice Margaria (Max-Planck-Institut für ethnologische Forschung) has published The Construction of Fatherhood: The Jurisprudence of the European Court of Human Rights (Cambridge Univ. Press 2019). Here’s the abstract:
The book tackles one of the most topical socio-legal issues of today: how the European Court of Human Rights is responding to shifting practices and ideas of fatherhood. The jurisprudential analysis is situated in a context of social change that offers radical possibilities for the fragmentation of the conventional father figure and therefore urges decisions upon what kind of characteristics makes someone a legal father. In a range of paradigmatic domains, this book explores the Court’s understanding of what it means to be a father today, and whether care is valued at all. It also reflects on the genesis of the Court’s (re-)construction of fatherhood, thus shedding light on the roles played by doctrines of interpretation.
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 