This is a blog is related to my academic work in the International Academic Forum on SOGIESC Law but meant to serve anyone who wants to contribute to improve the protection of human rights worldwide. It is intended to keep interested readers informed about legal developments relating to sexual orientation, gender expression and identity and sex characteristics (SOGIESC). Hopefully, it will make it easier to find correct legal information about the developments in all regions of the world and, in particular, with regard to international law.
We hope you can join us as we discuss a recent Williams Institute analysis of the 2017 National Crime Victimization Survey, the first national dataset to examine the rates of victimization among LGBT people compared with their cisgender, heterosexual counterparts. Panelists will address the importance of the findings, the threat to continued data collection on LGBT victimization, and the work of the Anti-Violence Project, a 40-year-old LGBT community organization dedicated to organizing, education, policy, and research.
Die Lesbenorganisation Schweiz LOS vertritt seit über 30 Jahren die Anliegen von lesbischen, bisexuellen und queeren Frauen in der Schweiz. Sie setzt sich für ihre politische und gesellschaftliche Gleichberechtigung ein und fördert ihre Sichtbarkeit und Vernetzung. Gemeinsam mit unseren Partnerorganisationen engagieren wir uns für die gesamte LGBTIQ-Community.
Die LOS sucht per 1. März 2021 oder nach Vereinbarung ein*e Co-Geschäftsleiter*in Deutschschweiz 60-100%
In dieser Position gestaltest du zusammen mit der Co-Geschäftsleiterin Romandie und dem ehrenamtlichen Vorstand die Aktivitäten, den Auftritt sowie die inhaltliche und strategische Ausrichtung der LOS und entwickelst diese weiter. Dabei laufen bei dir als Hauptverantwortliche*r für die Geschäftsstelle alle Fäden zusammen.
Alle weiteren Informationen finden sich in der Stellenausschreibung im Anhang.
Die Vorstellungsgespräche findet am 25. und 26.1 in Zürich oder Bern statt. Bei Bedarf findet ein zweites Gespräch am 28. Januar statt. Bitte halte diese Termine frei. Wir freuen uns auf deine Bewerbung mit den üblichen Unterlagen bis zum 20.01.21 an Laura Eigenmann, firstname.lastname@example.org. Weitere Auskünfte erteilt Dir gerne Kathrin Meng unter email@example.com oder auch telefonisch unter 079 364 20 22.
Save the date and submit your applications for the ILGA World Conference 2022
Originally planned for November 2021 and postponed due to Covid-19 uncertainty, the ILGA World Conference 2022 will take place from 2 to 6 May 2022 in Los Angeles, CA, United States, hosted by the It Gets Better Project under the theme LGBTIQ Youth: Future Present Change. LGBTI human rights defenders and activists are eligible to apply for a scholarships before 17 January 2021 and submit a session proposals by 10 January 2021.
USA: North Carolina appeals court rules same-sex partners eligible for domestic violence protections
The Court of Appeals of North Carolina ruled Thursday that people who are or have been in a dating relationship with a same-sex partner are equally protected against domestic violence as persons in opposite-sex relationships placed in a similar situation. North Carolina was the only US state where such protection had been unavailable.
The case arose when the plaintiff, a woman, filed for issuance of a Domestic Violence Protective Order (DVPO) pursuant to Chapter 50B of the North Carolina General Statutes (NCGS) against another woman with whom she had been in a dating relationship. The trial court rejected the complaint, stating that under Chapter 50B of the NCGS, only persons in opposite-sex dating relationships could claim protections against domestic violence. The decision of the trial court was appealed citing violations under the Constitution of North Carolina as well as the Fourteenth Amendment, an appeal which resulted in the court’s Thursday decision.
The court ruled that Chapter 50B of NCGS was violative of the due process clause, the plaintiff’s fundamental rights to personal safety and liberty, as well as the Equal Protection Clause of the Fourteenth Amendment. The court observed that the classification made under NCGS singled out people belonging to the LGBTQ+ community, served no government interest and was violative of the objective with which the statute was enacted, failing even the lowest level of scrutiny test.
While relying on the Supreme Court decision in Bostock v. Clayton County, the court also observed that discrimination based on one’s sexual orientation or gender identity was not possible without discriminating against the person based on their “sex.” Accordingly, it held that Chapter 50B of NCGS was a specific violation of the Equal Protection Clause.
Filippo Grandi, the UN High Commissioner for Refugees, Victor Madrigal-Borloz, UN Independent Expert on Sexual Orientation and Gender Identity and Alice Bah Kuhnke, member of the European Parliament have confirmed their participation in the Refugees, Borders and Immigration Summit taking place next year in Malmö during WorldPride.
With more than 70 countries still criminalizing same-sex relationships many LGBTI+ people are affected by human rights abuse and persecution in their home countries. LGBTI+ migrants, asylum seekers and refugees are often forgotten in the debate on migration and the challenges faced by LGBTI+ people.
During Copenhagen 2021 – WorldPride and EuroGames a whole day is dedicated to these issues during the international Refugees, Borders and Immigration Summit. On August 20 several hundred activists, politicians and representatives of human rights organizations will meet at Malmö Live to discuss the situation and rights of LGBTI+ refugees.
“We at UNHCR welcome the opportunity to bring greater attention to the tragic experiences of LGBTIQ+ people forced to flee their countries simply because of who they are. Copenhagen 2021 will present an important moment for experts, activists and decision makers from around the globe to listen to the experiences of those forced into exile because of their sexual orientation or gender identity, and to work with them to alleviate their suffering and find solutions to their plight,” said Filippo Grandi, UN High Commissioner for Refugees.
The Summit is organized by Malmö Pride and the City of Malmö in collaboration with Rainbow Railroad, ORAM, UNHCR, the Council of Europe, Amnesty International, Human Rights Watch and Event in Skåne. It will be live-streamed to reach the largest possible audience. This approach means organizers can easily adapt if COVID19 restrictions prevent the physical event from taking place.
An important part is to draw attention to refugees’ lived experiences. People who have fled oppression and persecution due to sexual orientation or gender expression will be telling their stories at the Summit.
“I myself am a refugee and today I work to strengthen rights of LGBTI+ people. I hope that the summit will be a platform to make our stories visible. We want to show that we are more than numbers and statistics, that everyone has their own story,” said Karl Yves Vallin, project manager at RFSL Newcomer Malmö.
The Summit is the official closing event of the Human Rights Forum, an important part of the WorldPride program. Co-hosts are Alice Bah Kuhnke, co Vice-President of the Greens/EFA Group in the European Parliament and former Swedish Minister of Culture and Democracy, and Ulrika Westerlund who has been working for LGBTI+ rights, equality and human rights for over 20 years.
”LGBTI+ refugees are some of the world’s most vulnerable persons. As an elected politician it is my duty to listen to their stories. The Summit is a fantastic opportunity to listen and learn, but also to pave the way to move forward,” Alice Bah Kuhnke said.
Other Summit participants are Flavia Piovesan, IACHR Commissioner and Rapporteur on the Rights of LGBTI Persons and Michael O’Flaherty, Director of the EU Agency for Fundamental Rights.
It is part of the Human Rights Forum (16-22 August 2022)
New Zealand to strengthen hate speech laws following Christchurch terror attack report
The New Zealand government is set to strengthen the country’s hate speech and counter-terrorism laws following the release Monday of a Royal Commission of Inquiry’s report on the March 2019 Christchurch terror attack.
The report made 44 recommendations. In a statement to Parliament on Tuesday, the country’s Prime Minister Jacinda Ardern said the government has accepted all recommendations “in principle.” These include reframing the country’s hate speech laws by repealing section 131 of the Human Rights Act 1993. Instead, it recommended criminalizing “hate-motivated offending” under the the country’s key criminal law code, the Crimes Act 1961, amending the Summary Offences Act 1981 and updating the definition of “objectionable” in section 3 of the Films, Videos, and Publications Classification Act 1993 to include “racial superiority, racial hatred and racial discrimination.” This would provide greater certainty to the country’s hate speech legal landscape by making it illegal to “[stir] up or [provoke] hatred against a group of persons defined by protected characteristics, which should include religious affiliation.” According to the report this change “reflect[s] the seriousness of the offences and increase[s] the resulting penalty.”
In her statement, Ardern said one of the government’s immediate responses to the recommendations will be to “work with parties across Parliament on the gaps in hate speech legislation.”
The report also recommended establishing by law a new national intelligence and security agency to “deliver a more systematic approach to addressing extremism and preventing, detecting and responding to current and emerging threats of violent extremism and terrorism” and steward national security laws, especially the Intelligence and Security Act 2017 and Terrorism Suppression Act 2002 (the Terrorism Act).
Moreover, the report criticized the Terrorism Act for failing to criminalize “activities that are preliminary to acts of terrorism” and that the terrorism offences provided for in the Terrorism Act “do not apply to the activities of lone actor terrorists,” such as the perpetrator in the Christchurch attack. Noting that the Terrorism Act’s fitness for purpose has not been reviewed in the almost two decades since its introduction, the report recommended that legislation provide for it to be regularly reviewed, “say every five years,” and that all other counter-terrorism laws “be reviewed and updated.” Ardern commented that the recommendation to improve counter-terrorism laws “was something the Government had started work on prior to March 15” and that it “will now bring those amendments to the House.”
Ardern named Andrew Little as the minister responsible for coordinating the government’s continued response to the inquiry’s recommendations.
USA: Supreme Court declines to hear challenge to transgender student bathroom policy
The US Supreme Court on Monday declined to hear an appeal in Parents for Privacy v. Barr, letting stand a lower court ruling that allows transgender students to use the bathroom of their choice stand.
An Oregon District Court refused to block the school district’s policy and the US Court of Appeals for the Ninth Circuit upheld that ruling. The Court of Appeals noted that the policy does not violate students’ constitutional rights, nor does it violate educational sex discrimination laws.
The lawsuit was first filed by parents in Dallas School District in 2017. The policy allowed a transgender boy to use the boys’ bathrooms and locker rooms. The parents alleged that accommodating the transgender student violates the civil rights of the non-transgender students who must share the facilities.
The parents’ complaint alleged improper rule-making procedure under the Administrative Procedure Act, violations of the fundamental right to privacy and parents’ fundamental right to control the upbringing of their children under the Fourteenth Amendment, violation of Title IX, violation of the Religious Freedom Restoration Act, violation of the First Amendment, public accommodation discrimination and discrimination in education.
The ACLU of Oregon, which was involved in the litigation, stated, “the decision not to take this case is an important and powerful message to trans and non-binary youth that they deserve to share space with and enjoy the benefits of school alongside their non-transgender peers.” According to the ACLU, courts have been rejecting cases like these to protect the rights of transgender students across the country. In May 2019, the Supreme Court declined to hear a similar case as well.
The Third Section of the European Court of Human Rights has issued its judgment in Berkman v Russia. The case concerns the failure of police officers to ensure that an LGBTI event disrupted by counter-demonstrators proceeded peacefully, and the unlawful arrest of the applicant, Ms Berkman, at the event.
On 27 September 2013 a group of LGBTI rights activists informed the St Petersburg authorities of their intention to hold a meeting to mark Coming Out Day on 12 October 2013 at the Field of Mars, a large square in the city centre. About 150 people were expected to attend the event.
On 30 September 2013 the authorities forwarded the information about the upcoming event to the police and reminded the organisers of the meeting that they would be held liable under domestic law for inciting hatred and enmity on account of ethnicity, language, origin and religious beliefs or for promoting “non-traditional” sexual relationships to minors.
The police deployed around 540 police officers, including officers from special-purpose units, to ensure public order during the meeting. It appears that the enhanced security was ordered in the light of anticipated clashes with counter-demonstrators.
At about 1 p.m. on the day of the event Ms Berkman arrived at the site to take part in the preparation of the meeting. According to her, the participants (about 20 or 30 people) were unable to gather, because the place was blocked by more than 100 aggressive counter-demonstrators. Many of them were in national costumes and armed with whips. They insulted the participants in the meeting, and pushed and punched them.
The counter‑demonstrators surrounded the Coming Out Day participants, including Ms Berkman, and followed them. The participants asked for help from the police officers, but the police officers did not react. The police officers stepped in only later, when counter-demonstrators insulted the police officers personally.
The police officers arrested several counter-demonstrators, took them to a police bus parked nearby and then released them. The released counter‑demonstrators continued their verbal attacks and physical pressure on the LGBTI activists.
At 1.55 p.m. police officers surrounded a group of twelve demonstrators, including Ms Berkman, and stated that they had breached public order by using foul language in a public place. Then the officers ordered them to proceed to a police bus and took them to central police station no. 28 in St Petersburg.
Ms Berkman was detained at the police station from 2.30 p.m. to around 6.30 p.m.
The Court that subsequently dealt with Ms Berkman case – the Dzerzhinskiy District Court of St Petersburg – terminated administrative proceedings against her on 8 November 2013 for lack of evidence of her guilt.
Domestic proceedings against the police
Ms Berkman lodged a civil claim with the Vasileostrovskoiy District Court of St Petersburg against the domestic authorities. She challenged the lawfulness of her arrest and detention at the police station. Later, on an unspecified date, she extended her claim, alleging that the authorities had failed to ensure the personal safety of the participants in the public meeting of 12 October 2013.
Several iterations of these claims in the domestic courts, including the Supreme Court of Russia, failed.
Complaints to the Court
Ms Berkman, relying on Article 5 § 1 of the Convention, claimed that her administrative arrest and subsequent detention at the police station had been arbitrary and unlawful.
She further complained, relying on Article 11 taken alone and in conjunction with Article 14 of the Convention, that the domestic authorities had failed to enable the public meeting marking Coming Out Day to proceed peacefully.
Ms Berkman further complained, under Article 14 taken in conjunction with Article 5 § 1 of the Convention, that she had been arrested on the grounds of her views in support of LGBTI people.
The Article 11 and Article 14 complaints
Failure of the police to facilitate the event
The Court was satisfied that the St Petersburg authorities did not ban the public meeting in support of the LGBTI community, where Ms Berkman intended to participate and that, being aware of the risks associated with the event, they dispatched considerable number of police officers to the scene of the demonstration.
The Court noted the “passive conduct of the police officers” and “that they did not consider it necessary to facilitate the meeting” (§ 53).
The Court stated that it was “unsatisfied with such [an] approach” and reiterated that “participants must […] be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents” (§ 54). “Genuine, effective freedom of peaceful assembly”, the Court said, “cannot, therefore, be reduced to a mere duty on the part of the State not to interfere” (§ 54).
In respect of the positive obligations of the state, the Court said these should be assessed in the light of the subject matter of the assembly. The Court said such positive obligations “were of paramount importance in the present case, because the applicant as well as other participants in Coming Out Day belonged to a minority” (§ 55). “They held views that were unpopular in Russia”, the Court said, “and therefore were vulnerable to victimisation” (§ 55).
The Court concluded that the authorities failed to duly facilitate the conduct of the planned event by restraining homophobic verbal attacks and physical pressure by counter-demonstrators.
The Court stated: “As a result of the passive attitude of the police authorities, the participants of the event fighting against discrimination on the grounds of sexual orientation became themselves the victims of homophobic attacks which the authorities did not prevent or adequately manage” (§ 57).
On this basis, the Court considered that the domestic authorities failed to comply with their positive obligations under Article 11 of the Convention, taken alone and in conjunction with Article 14.
The arrest of Ms Berkman
The Court observed that police officers arrested Ms Berkman and other participants of the meeting on the grounds of the alleged use of foul language. In preventing Ms Berkman’s participation in the event, this action of the police amounted to an interference with her rights enshrined by Article 11 of the Convention.
The Court regarded Ms Berkman’s arrest to fall short of being lawful (on account of a lack of reasons and legal grounds for her arrest) and, accordingly, the interference in question was unlawful.
Moreover, given Ms Berkman’s conduct was clearly of a non-violent nature, the Court considered that the reasons relied upon by the domestic authorities for the arrest were insufficient to justify that she was prevented from continuing to participate in the event.
The Court therefore concluded that there had been a violation of the State’s negative obligations under Article 11 of the Convention taken alone.
However, the Court stated that it could not “find it established that the police officers arrested only the participants of the public event and disregarded the breaches of public order by their opponents” (§ 63).
On this basis, the Court stated that it could not conclude that the interference in question affected Ms Berkman’s rights guaranteed by Article 14 of the Convention and, as such, that there had been no violation of Article 14 taken in conjunction with the negative obligations under Article 11 of the Convention.
The Article 5 § 1 complaint
The Court dealt with this very briefly.
It noted that Ms Berkman was deprived of her liberty within the meaning of Article 5 § 1 of the Convention from about 1.55 p.m. until 6 p.m. on 12 October 2013.
According to Ms Berkman’s arrest record, she was taken to the police station for the purpose of drawing up an administrative-offence report.
The Court observed that domestic law provided that a suspected offender may be brought to a police station for the purpose of drawing up an administrative-offence report only if such a report could not be drawn up at the place where the offence was detected.
The Government, however, had not argued that in Ms Berkman’s case drawing up such a report at the site of the protest was impossible. Moreover, the domestic authorities had never assessed in a meaningful manner the necessity of the applicant’s transfer to the police station.
On this basis, the Court found a breach of the applicant’s right to liberty on account of a lack of reasons and legal grounds for her arrest and, as such, a violation of Article 5 § 1 of the Convention.
Other complaints that the Court considered it was not necessary to examine
The Court did not consider it necessary to examine the merits of Ms Berkman’s complaint under Article 5 § 1 of the Convention concerning her delayed release from the police station.
The Court also considered that there was no need to examine separately the merits of the complaint under Article 14 taken in conjunction with Article 5 § 1 of the Convention that Ms Berkman had been arrested on the grounds of her views in support of LGBTI people.
This judgment is a further reiteration of the Court’s now established principle that domestic authorities are under a positive obligation to ensure that LGBT+ people can exercise their right to freedom of peaceful assembly in circumstances free from homophobic hatred.
Police officers must not be “passive” in the face of conflict between LGBT+ people and homophobic protestors, but must actively facilitate the freedom of peaceful assembly of LGBT+ people.
As the Court said, police passivity results in those people who are fighting against discrimination on the grounds of sexual orientation themselves becoming the victims of homophobic attacks.
In the context of Russia, the judgment further highlights the risks to LGBT+ people, the failure of the state to protect them, and the ongoing relevance of the Convention system for redress. Of course, the ongoing failure of the Russian government to execute the Court’s LGBT-related judgments is a significant problem. For the Convention system to work, political pressure is needed by the bodies of the Council of Europe to ensure that Russia takes action to be compliant with the Convention.
One intriguing aspect of this judgment is that the Court was prepared to find a violation of Article 14 (prohibition on discrimination) in respect of the failure of the police to facilitate the event, but not in respect of Ms Berkman’s arrest. Clearly, in respect of the public event, the Court was satisfied that Ms Berkman was made the victim of homophobic attacks because of a failure of the police and, therefore, the violation of positive obligations under Article 11 had a discriminatory element. But the Court was not satisfied that Ms Berkman had been arrested for discriminatory reasons – that is, on grounds of sexual orientation. The key issue for the Court was that it could not find any evidence that the police officers had only arrested the participants of the LGBTI event or disregarded the breaches of public order by their opponents. On this basis, the Court would not find a discriminatory element to the negative violation of Article 11. It does appear that the Court assessed video and other materials to reach this conclusion.
Generally, this is a very positive judgment that strengthens the Court’s jurisprudence on the freedom of peaceful assembly of LGBT+ people.