Romania: The guidelines for interaction with transgender persons inthe electoral context

More: https://www.equalitylaw.eu/downloads/6086-romania-the-guidelines-for-interaction-with-transgender-persons-in-the-electoral-context

Canada: An Indigenous Trans Woman in Ontario Won a Six-Year Legal Battle Against a Waxing Salon

The anonymous woman was awarded more than CAD $35,000 in damages.

The Human Rights Tribunal of Ontario has awarded an Indigenous transgender woman more than CAD $35,000 (about $25,500) in damages, following her six-year legal battle against a waxing salon owner who discriminated against and publicly humiliated her, as the court determined.

The anonymous complainant, known as A.B. during the proceedings, filed her case in 2018 after she attempted to book a leg waxing service from the salon Mad Wax in Windsor, Ontario, owned by Jason Carruthers. After speaking with an employee who later testified that she did not know what the word “transgender” meant, A.B. received a call back from Carruthers, who assumed that A.B. wanted a Brazilian wax and told her that nobody would offer that service to “someone like you” — referring to her status as a trans woman, per court documents.

More: https://www.them.us/story/canada-waxing-salon-indigenous-trans-woman-lawsuit

US president pardons LGBTQI+ military veterans’ convictions of now-repealed discriminatory laws

The US President Biden on Wednesday pardoned American veterans who were forced out of the military because of their sexual orientation or gender identity under a military code for more than 60 years. Biden’s proclamation grants direct clemency to people who had been given court marshal convictions between 1951 and 2013 because of their status in the LQBTQI+ community.

The pardon applies to service members convicted under the Uniform Code of Military Justice’s former Article 125.  The presidential proclamation specifies that it is meant to pardon only offenses based on consensual, private conduct between same-sex individuals. Those covered by the pardon can apply to have their convictions erased, upgrade their military discharges, and recover lost pay and benefits. At least 32,837 LGBTQI+ service members between 1980 and 2011 were forced out of the military under the prior “Don’t Ask, Don’t Tell” laws, according to the US Defense Department. Civil rights advocates say it could be upward of 100 thousand service members who had been affected by discriminatory government practices from 1951-2013. 

President Biden announced in his White House statement, “As Commander in Chief, I am committed to maintaining the finest fighting force in the world. That means making sure that every member of our military is safe and respected. So they can focus on their mission.” The Biden Administration emphasized that this decision is about establishing federal rights, not based on a Supreme Court decision and that it is meant to protect the “dignity, decency, and culture” of the American Armed Forces, which reflects the “values that make us an exceptional nation.”

The Modern Military Association is a civil rights group that defends LGBTQI+ veterans.  In a press release that responded to the announcement, the advocacy organization called for individual departments of the armed services [to] streamline the process and provide the much-needed relief as soon as possible by filing requests for all similarly harmed individuals and exercise their capacity to approve the pardons and their discharge upgrades en masse. 

The Military Departments (Army, Navy, or Air Force), or in the case of the Coast Guard, the Department of Homeland Security, in conjunction with the Department of Justice, have provided information about application procedures for certificates of pardon. The US Department of Defense has established a resource page and states that it will additionally offer outreach to veterans who may be eligible. 

Internationally, the UK and Germany have passed similar policies in the past two years. This declaration coincides with the end of Pride month in the US.

The post US president pardons LGBTQI+ military veterans’ convictions of now-repealed discriminatory laws appeared first on JURIST – News.

US Supreme Court to rule on legality of gender-affirming care bans for transgender youth

The US Supreme Court announced Monday it will review the legality of state efforts to ban gender-affirming medical care for minors — a contentious issue in a nation deeply divided over transgender rights and the role of medical intervention in youth gender identity.

The case, US v. Skrmetti, centers on a Tennessee law enacted in March 2023 that bans healthcare providers from performing medical procedures on minors or administering treatments intended to help minors identify with a gender different from their sex as assigned at birth. The law also curtailed then-ongoing gender-affirming care for minor patients.

In the immediate aftermath of the law’s passage, the families of three transgender teenagers sued Tennessee Attorney General Jonathan Skrmetti, the state’s health department, its medical board, and several other officials. The plaintiffs argued that the law violated their Equal Protection rights, as enshrined in the 14^th Amendment of the US Constitution, and sought to enjoin the law from taking effect. They argued the law “discriminates on the basis of sex and transgender status by prohibiting certain medical treatments only for transgender patients and only when those treatments are performed ‘for the purpose of . . . [e]nabling a minor to identify with, or live as,’ a gender identity other than the sex designated at birth.”

In June 2023, the Federal District Court for the Middle District of Tennessee sided with the plaintiffs, granting a preliminary injunction. But the following month, the injunction was overturned by the Sixth Circuit Court of Appeal. In November, the plaintiffs appealed to the Supreme Court.

The US then intervened on the plaintiffs’ side, arguing that the Supreme Court’s opinion was imperative given that the Tennessee law is part of a broader wave of gender-affirming care bans that had resulted in multiple circuit-level conflicts, asserting:

Those laws, and the conflicting court decisions about their validity, are creating profound uncertainty for transgender adolescents and their families around the Nation—and inflicting particularly acute harms in Tennessee and other States where the laws have been allowed to take effect.

At present, half the states in the nation have passed laws barring transgender youth from obtaining gender-affirming care — with state policies diverging on the expansiveness of the definition of such treatments. A handful of states — Alabama, Florida, Idaho, North Dakota, Oklahoma, and South Carolina, according to the advocacy group MAP — make it a felony to provide gender-affirming care to youths.

According to a report released earlier this year by the UCLA School of Law, 93 percent of transgender teens (aged 13-17) in the US live in states that have either passed or proposed legislation aiming to block such treatments. The number of states that have banned gender-affirming care for minors has surged in the past two years, from four in 2022 to 25 as of the time of writing. This period has seen a widening rift between Conservative and Progressive values across the US, which has had an impact on state and federal policies ranging from reproductive rights to border security.

The post US Supreme Court to rule on legality of gender-affirming care bans for transgender youth appeared first on JURIST – News.

US Supreme Court Agrees to Hear Challenge to Law Banning Transition Care for Minors

The court will decide whether the Tennessee law violates the Constitution. It’s the first time they will weigh in on the issue of medical care for transgender youth.

Read more: https://www.nytimes.com/2024/06/24/us/politics/supreme-court-transgender-care-tennessee.htm

Japan top court declares transgender woman as father of daughter conceived after legal gender change

The Supreme Court of Japan declared a transgender woman as the father of her daughter, who was conceived after the woman’s legal gender change, for the first time on Friday.

In Friday’s ruling, which overturned a 2022 Tokyo High Court decision, the court held that Japan’s Civil Code and other laws do not prevent a woman from establishing a legal paternity claim and that the Civil Code recognizes biological parent-child relationships. The court stated that a father-child relationship can be established regardless of the father’s legal gender, and failing to recognize a transgender individual as the parent of a child is detrimental to the child’s interests as the child would be deprived of receiving support as a dependent. The court also stated that impacts on family relationships should be considered when deciding whether a father-child relationship should be recognized.

The overturned Tokyo High Court ruling previously held that the transgender woman could not be recognized as the parent of her daughter as her daughter was born after her legal gender change. In contrast, the transgender woman’s older daughter, who was born before her legal gender change, was legally recognized as her daughter. DNA tests confirmed that both daughters are the biological children of the transgender woman.

Japan’s judiciary and legislature have both made moves to widen LGBTQ rights in recent years. On March 14, Japan’s Sapporo High Court held that the country’s ban on same-sex marriage was unconstitutional because it violated both Article 14 and Article 24 of Japan’s Constitution. This was the first time a High Court in Japan declared the ban explicitly unconstitutional.

This decision followed two legislative moves in Japan addressing LGBTQ rights. In 2022, Tokyo’s metro government began to acknowledge same-sex partnerships, and in 2023, the federal government passed a law to better protect the rights of LGBTQIA+ people.

In addition, on February 7, a Japanese court allowed a gender change to be legally recognized without the need for sterilization for the first time in the country’s history. Japan’s Okayama Family Court Tsuyama Branch ruled in favor of Tacaquito Usui, allowing him to legally change his gender to male without having to undergo sterilization surgery, a controversial requirement struck down in 2023 as unconstitutional by Japan’s Supreme Court.

The post Japan top court declares transgender woman as father of daughter conceived after legal gender change appeared first on JURIST – News.

Northern Ireland: 1 in 4 LGBTQ+ asylum seekers experience sexual assault in asylum accommodation

A report by Rainbow Refugees NI and Law Centre NI published on Friday revealed that LGBTQ+ asylum seekers in Northern Ireland experience serious homophobic abuse in their asylum accommodation. The report, titled “We are getting hurt,” shows that 78 percent of the study’s participants experienced “homophobic abuse or violence in or around their asylum accommodation.”

According to Rainbow Refugees NI, LGBTQ+ asylum seekers have experienced homophobic abuse such as name-calling, severe bullying, harassment and physical and sexual violence. The report further found that while victims of homophobic abuse usually report to Migrant help, Mears or the police service, the reporting process did not lead to effective results for the majority. Additionally, the research showed that the chance of being relocated after experiencing abuse is low and is mostly possible with the interference of support organizations. Moreover, the report raised concerns over the high prevalence of self-harm and suicide among abuse victims.

The organizations provided key recommendations, such as that housing provider Mears designate housing units “for the exclusive use of LGBTQIA+ asylum seekers” to guarantee safe asylum accommodations. The report also suggested that homophobic abuse response should follow racial and domestic abuse policies and therefore provide victims access to expedited relocation policy as well as suicide prevention services.

Overall, the report highlighted that LGBTQ+ asylum seekers in the UK face constant abuse in their accommodation. Migration Justice Project at Law Centre NI member Liz Griffith stated:

LGBTQIA+ asylum seekers deserve the chance to rebuild their lives and feel safe in their own homes. We are optimistic that the recommendations in this report will bring about tangible and progressive change and we look forward to working collectively with Mears, Migrant Help, and others to ensure the safety and wellbeing of LGBTQIA+ asylum seekers who have sought sanctuary in Northern Ireland.

As Pride Month nears its end, the necessity to address the serious issues the LGBTQ+ community faces around the world remains urgent. A recent report published by Ugandan LGBTQ+ advocacy organization Convening for Equality reported human rights violations against LGBTQ+ people following the passage of the country’s Anti-Homosexuality Act (AHA) 2023. Earlier in June, South Korean authorities denied the 25th Seoul Queer Culture Festival from using the Seoul Plaza, prompting discrimination accusations from the event committee.

The post Northern Ireland: 1 in 4 LGBTQ+ asylum seekers experience sexual assault in asylum accommodation appeared first on JURIST – News.

Namibia high court overturns law banning gay sex

Victory for LGBTQ+ campaigners who say ban contributes to discrimination and violence by police

Namibia’s high court has overturned a law that criminalised gay sex in a victory for LGBTQ+ campaigners after a number of setbacks in the battle for rights in African countries in recent years.

Namibia inherited a law banning “sodomy” and “unnatural offences” when it gained independence from South Africa in 1990. While the ban was rarely enforced, activists said it contributed to discrimination against LGBTQ+ people, including violence by the police.

More: https://www.theguardian.com/world/article/2024/jun/21/namibia-high-court-overturns-law-banning-consensual-gay-sex

______________________________________________________________________

The Namibian High Court ruled Friday that the law criminalizing “sodomy” and “unnatural sexual offences” is incompatible with the right of non-discrimination guaranteed under the Namibian constitution.

In the case of Dausab v The Minister of Justice, applicant Friedel Dausab, a Namibian gay man working as an LGBTQ rights activist, stated that he endured hardship by openly living as a gay man. Thus, he decided to bring the claim in order to challenge the validity of the legislation banning sexual acts between males. These offences, which were implemented during the colonization before 1990, cover sexual acts in private and in public between male persons.

The high court agreed with Dausab and declared that the parts of laws such as the Criminal Procedure Act and the Defence Act punishing the offences of consensual sex acts between males constituted unfair discrimination, mentioning that sexual conduct between males and females as well as between females is not criminalized. Furthermore, although the respondents argued that sexual activity between males is seen as unacceptable by a majority of citizens, the court said it was not sufficient to justify the discrimination. Therefore, the court ruled, provisions criminalizing sexual activity between males infringe Article 10 of the Namibian constitution guaranteeing equality under law. The court emphasized the need for judicial review of legislation as a means to guarantee constitutional value and to protect the rights of minorities and others whose rights cannot be adequately protected.

The court’s decision was preceded Wednesday by a call from Amnesty International to protect the human rights of LGBTQ people in Namibia and to allow them to assemble and associate without fear of discrimination and attacks. Considering possible anti-LGBTQ rhetoric from faith and religious leaders in Namibia, as well as the Supreme Court’s previous judgment recognizing foreign same-sex marriages, the organization urged the authorities to avoid any more anti-LGBTQ backlash.

The post Namibia High Court declares criminalization of sexual acts between males unconstitutional appeared first on JURIST – News.

____________________________________________________________________

On 21 June 2024, the High Court of Namibia in Friedel Laurentius Dausab vs. The Minister of Justice unanimously held that laws criminalizing same-sex relationships (so-called sodomy laws) are unconstitutional and invalid. The Court found that “common law offenses of unnatural sexual offenses” and the inclusion of the “crime of sodomy” in three statutory laws (Schedule 1 of CPA, Schedule 1 of Immigration Control Act of 1993, Section 68(4) of the Defence Act of 2002) violate the equality and anti-discrimination principle enshrined in the Constitution of Namibia. The judgment significantly advances anti-discrimination law jurisprudence in Namibia, particularly in relation to the grounds of sexual orientation and the interpretation of constitutional equality provisions.

Expanding Anti-discrimination Law Jurisprudence

The Court’s expansive interpretation of the equality clause in Article 10 has far-reaching implications for the protection of human rights in Namibia.

Firstly, the Court recognized sexual orientation as a protected ground although it is not explicitly listed as a specific ground in Article 10(2), rejecting a narrow, literal interpretation. It thus demonstrated a willingness to adapt constitutional interpretation to evolving social norms and human rights standards on sexual orientation. While the judgment doesn’t explicitly cite these standards, they likely include international human rights instruments such as the Yogyakarta Principles, United Nations Resolutions on sexual orientation and gender identity, and the growing body of comparative jurisprudence from other jurisdictions that have recognized sexual orientation as a protected ground. This approach aligns with the living tree doctrine of constitutional interpretation which holds that a constitution should be read broadly and progressively to adapt to the changing needs of society. The Court’s reasoning in this regard is particularly significant. It held that “the fact that a ground is not listed in Article 10(2) is not a license for the law to discriminate on that ground” (para. 44). The judgment thus advances a more nuanced understanding of gender discrimination by recognizing its intersection with sexual orientation. This expanded view opens the door for the recognition of other non-enumerated grounds of discrimination in future cases, potentially including grounds such as disability, age, or gender identity which are recognized in many modern constitutions like Article 9 of the Constitution of South Africa but not explicitly mentioned in the Namibian Constitution.

Substantive Equality over Formal Equality

The Court’s analysis of the rationality and legitimacy of the impugned laws demonstrates a rigorous and principled approach to the equality test under Article 10 of the Namibian Constitution. This approach significantly raises the bar for the state in justifying differential treatment and sets a precedent for future discrimination cases. The Court’s scrutiny of the purported justifications for criminalizing same-sex conduct was particularly intense. The judgment squarely addressed the question of what legitimate purpose could be served by such criminalization, asking pointedly: “What threat does a gay man pose to society, and who must be protected against him?” (para. 28). This framing of the issue compelled a critical examination of the underlying rationales for the impugned laws, moving beyond mere acceptance of historical or traditional justifications. The Court’s rejection of moral majoritarianism as a legitimate basis for discrimination is a cornerstone of this judgment and marks a significant jurisprudential development. By asserting that “the enforcement of the private moral views of a section of the community (even if they form the majority of that community), which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose” (para. 28), the Court established a crucial principle and reinforced a counter-majoritarian understanding of constitutional rights.

Moreover, the Court demonstrates a sophisticated understanding of equality that transcends mere formal equality, aligning with contemporary constitutional theory. By rejecting the Respondents’ contention that the impugned laws constitute mere differentiation rather than discrimination (para. 33), the Court implicitly embraced the concept of substantive equality. Instead of analyzing the legal distinctions in a formalistic manner, the Court considered the deleterious and prejudicial effects of the laws on gay (or queer) men, thus engaging with the laws’ practical consequences. It thereby relied on the precedent established in Müller v President of the Republic of Namibia (1999) which defined discrimination within the Namibian constitutional context as encompassing an element of unjust or unfair treatment (para. 56), reaffirming and extending a substantive approach to equality. This approach is a progressive evolution of Namibian constitutional jurisprudence, resonating with developments in other jurisdictions as well as Namibia’s binding commitments under ratified human rights treaties. These include the ICCPR, the CEDAW, and the CERD which increasingly recognize the limitations of formal equality in addressing systemic discrimination and promoting social justice.

Comparative Law as the Guiding Light

The Namibian High Court in Dausab continued the trend of relying on comparative law as a deliberative resource, similar to what was observed in the Digashu and Seiler-Lilles case. This approach reflects the growing tendency of Namibian courts to use comparative methods when addressing critical constitutional questions. In Dausab, the High Court drew upon jurisprudence from South Africa, Candana, the United Kingdom, and Ireland to form its reasoning on the decriminalization of the sodomy law. The use of comparative law in Dausab further exemplifies the “cross-fertilization” or “doctrine-swapping” approach in Namibian constitutional interpretation, where courts import and adapt legal concepts from other jurisdictions to address complex issues in their own context, while still maintaining Namibia’s unique constitutional framework, characterized by its post-apartheid origins, hybrid legal system (i.e., Roman-Dutch civil law, English common law, and Customary law), and emphasis on transformative constitutionalism. While drawing insights from other jurisdictions, Namibian courts developed a domestic jurisprudence that addresses the country’s specific legal and social challenges. This approach allows Namibia to benefit from global legal developments while maintaining its sovereign ability to interpret and apply constitutional principles in a manner that respects its distinct historical, cultural, and social realities. This “cross-fertilization” approach in Namibian constitutional interpretation could potentially enhance queer rights (and other minority rights) concerning self-perceived gender identity, same-sex marriage, surrogacy rights, or adoption rights.

Queer Rights within the Framework of the Namibian Constitution

The High Court arrived at this expansion of queer identities and their rights by squarely placing same-sex relationships within the framework of constitutional rights and philosophies, namely, constitutional morality, the right to autonomy, the right to live a dignified life, and the right to privacy.

The Court’s expansion of queer rights through the lens of autonomy is evident in several aspects of its reasoning. The Court critically questions the legitimacy of criminalizing consensual sexual conduct between adults based solely on moral disapproval. By asking “What threat does a gay man pose to society, and who must be protected against him?” (para. 28), the Court implicitly recognizes the principle of personal autonomy in intimate relationships. Furthermore, the Court’s rejection of moral majoritarianism as a basis for criminalization (paras. 29-30) strongly affirms individual autonomy.

The Court’s emphasis on dignity is particularly evident when it references the Constitution’s promise of “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family” (para. 30). By framing the issue in terms of dignity, the Court elevates the status of queer individuals to that of equal members of society deserving of respect and recognition. Moreover, by rejecting “extreme disgust and abhorrence” (para. 27) as a basis for criminalization, the Court asserts that societal prejudices cannot diminish the dignity of queer persons.

The Court’s analysis demonstrates a sophisticated understanding of the relationship between morality and law in a pluralistic society. By questioning whether the criminalization of consensual same-sex conduct can be justified solely on the grounds of “moral disapproval”, the Court implicitly recognizes the distinction between private morality (individual morality) and public law (social vs. constitutional morality). This approach resonates with the harm principle of John Stuart Mill in legal philosophy, which posits that the only legitimate basis for criminalization is the prevention of harm to others, not the enforcement of private moral views. While not as explicitly discussed as the other rights, the right to privacy is implicitly recognized throughout the Court’s reasoning. The Court’s emphasis on privacy rights in questioning laws that criminalize “consensual anal intercourse between consenting males in private” (para. 28) is a key step in decriminalization. However, this framing should not be construed as limiting LGBTQ+ expression to private spaces only. The judgment’s broader focus on equality and dignity implies that LGBTQ+ individuals should have the same rights to public expression of affection as heterosexual couples.

While legal change of course does not change society’s minds and hearts overnight, the High Court of Namibia judgment is a milestone with the potential to impact queer lives in Namibia significantly. It not only decriminalizes consensual same-sex relationships but affirms the substantive equality, dignity, and autonomy of queer individuals. By establishing a crucial legal precedent for challenging other discriminatory practices, the judgment waters the living tree of the Constitution and will help it to branch out even further.

Source: https://verfassungsblog.de/namibia-queer-rights-constitution/

Thailand legalises equal marriage in historic first for Southeast Asia

More: https://www.thepinknews.com/2024/06/18/thailand-equal-marriage-south-east-asia/

_______________________________________________________________________________________

Thailand’s senate voted by a wide margin to support a bill legalizing same-sex marriage on Tuesday. This comes after its House of Representatives voted to approve the bill in March with near unanimity. Now, the bill must receive royal endorsement by King Maha Vajiralongkorn before entering into Thailand’s Royal Gazette as law.

The bill is an amendment to section 1448 of Thailand’s Civil and Commercial Code, which currently stipulates that marriage takes place between a “man and a woman.” The amendment uses gender-neutral language to allow for the possibility of recognizing same-sex marriages.

The legalization of same-sex marriage is no surprise in Thailand, where public opinion is squarely in support of it. A 2023 Pew Research Center study found that 60 percent of Thais support same-sex marriage and only 30 percent opposed it. Nonetheless, progress on the issue has been slow. In 2021, Thailand’s Constitutional Court found that section 1448 in its current was constitutional, pushing the Thai government to change the law itself; nevertheless, it took nearly two years until 2023 for Thailand’s cabinet to approve the bill legalizing same-sex marriage. Regardless of the delay, Thailand will now be the first country in Southeast Asia, and only the third in Asia, to allow same-sex marriage.

Even if the king were to deny the bill royal assent, which would be an abnormal measure, section 146 of Thailand’s Constitution states that the National Assembly may override that refusal with the support of a two-thirds majority. Given the bill’s near-unanimous support, it would likely overcome a veto.

The post Thailand Senate passes final reading of first law legalizing same-sex marriage in Southeast Asia appeared first on JURIST – News.

Netherlands – Bill to amend the Dutch Civil Code (the 2014 Transgender Act) to be withdrawn

More: https://www.equalitylaw.eu/downloads/6084-netherlands-bill-to-amend-the-dutch-civil-code-the-2014-transgender-act-to-be-withdrawn