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.
New Article: International Regulation of Sexual Orientation, Gender Identity, and Sexual Anatomy
Y ZHANG, S BRINKER, M CHHOY, H GHARIA – … JOURNAL OF GENDER AND THE LAW Lesbian, gay, bisexual, transgender, and intersex (LGBTI) 1 persons continue to experience human rights violations directly linked to lack of acceptance by society and States of their sexual orientation, 2 gender expression, 3 and/or gender identity
Lesbian couple win Hong Kong court victory in IVF case
Two women who took part in RIVF launched a legal challenge last year after the Hong Kong government recognised only one of them as the mother of their son, citing existing family laws.
On Friday, judge Queeny Au-Yeung at the court of first instance ruled that the government’s non-recognition was a form of discrimination against the couple’s son.
Their child was “discriminated as to his birth in the sense that, unlike other children, he does not have a co-parent, genetically linked to him,” the judge wrote in her ruling.
The court declared that the woman initially denied legal status should be recognised as a “parent at common law”, saying the move would align her legal status with reality.
“The court should be astute to the changing world where people build families in different manners other than through a married or heterosexual relationship,” the judge added.
In RIVF, a lesbian couple can jointly take part in childbearing as one woman’s egg, fertilised externally with the aid of a sperm donor, is transferred to the other woman who carries the pregnancy to term.
The procedure was introduced in the late 2000s and can now be performed without restriction in more than a dozen European countries, according to an academic survey.
As Hong Kong does not recognise same-sex marriages, the two women in the case — who were granted anonymity by the court — were married and underwent RIVF in South Africa.
Lawyer Evelyn Tsao, who represented one of the women, called the ruling “one giant step for the rainbow families in our LGBTQ community”.
“For the first time, the court expressly states that children of same-sex couples are discriminated by the current legislation,” Tsao told AFP.
Barrister Azan Marwah, one of the lawyers who argued the case in court, said on social media that the ruling was a first in the common law world.
The Department of Justice told AFP it was “studying the judgment in detail and considering the way forward”.
Earlier this month, Hong Kong’s top court ruled against same-sex marriage but ordered the government to provide an “alternative framework”, such as civil unions, to protect the rights of homosexual couples.
Kenya Supreme Court reaffirms LGBTQIA+ organizations’ right to registration
The Supreme Court of Kenya (SCORK) upheld its earlier decision Tuesday that the LGBTQIA+ community has the freedom to associate, which extends to the formation of associations.
This case began when an application was made to the court by George Kaluma, an advocate of the High Court of Kenya, seeking the review and setting aside of a judgment delivered February 24th on whether refusal by the NGO coordination Board to register the National Gay and Lesbian Human Rights Commission (NGLHRC) as an organization was discriminatory and thus unconstitutional.
The court dismissed the application on two grounds. First, the applicant was not a party in the previous matter, and, second, the threshold for reviewing a matter as stipulated in Section 21A of the Supreme Court Act of Kenya had not been met.
The court stated:
Section 21A of the Supreme Court Act provides for the circumstances pursuant to which this court may review its own decision on an application filed by “a party.” The court cannot entertain an application for review of its judgment filed by an applicant who was not a party to the proceedings as this goes to the root of the matter and sanctity of the already determined suit which was contested by the parties.
The court went on to hold:
Both the Act and stated case law stipulate the circumstances under which this court may review its decisions, either on its own motion or upon application by a party. The applicant has not demonstrated how this matter conforms to the specific parameters enumerated under Section 21 A of the Supreme Court Act…neither has he demonstrated to our satisfaction that the impugned judgment was obtained by fraud or deceit, is a nullity or that the court was misled into giving its judgment under a mistaken belief that the parties had consented thereto. In our view, the application is a disguised appeal from this court’s judgment and does not fall within the confines of the parameters prescribed for review by statute and applicable case law.
Commenting on the ruling, George Kaluma stated, “In dismissing my application, the court disregarded the substance/merits of the application and proceeded on the technicality that I was not a party to the earlier proceedings and therefore could not apply or be heard on the substance of the matter.” Religious organizations have also expressed their disapproval of the ruling, claiming that the Supreme Court judges have “gone against God” by reaffirming their decision and allowing registration of LGBTQIA+ associations in Kenya.
NGLHRC celebrated the ruling, stating, “Today’s decision is not just a victory for NGLHRC or the LGBTIQ+ community but for the enduring principles of freedom of association and assembly encapsulated in Article 36 of the Kenyan Constitution thirteen years after its promulgation.”
Kenya has been embroiled in conflict over LGBTQIA+ rights for some time, with the legislature considering a bill to make homosexuality punishable by ten years in prison and “aggravated” homosexuality punishable by death. Currently, homosexuality is penalized under section 162 of the Kenyan penal code.
Two unanimous decision by the ECtHR gains Russia relating to homophobia
12.09.2023 Judgments of 12 September 2023
The European Court of Human Rights has today given notification in writing of 15 judgments (link).
Applicant tortured by State agents in Chechnya because of sexual orientation Lapunov v. Russia
Russia failed to prevent and investigate hate attacks on members of the LGBTI community Romanov and Others v. Russia
The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights
EU’s ongoing funding of Uganda sparks criticisms among LGBTQ+ activists
In June, the European Union (EU) announced its decision to continue funding Uganda despite the nation’s recent adoption of a highly controversial anti-LGBTQ+ law in May, which has garnered significant international attention due to its prescription of the death penalty for specific same-sex acts. This move has ignited a massive outcry and backlash from the global LGBTQ+ community.
Under this new legislation, at least five individuals have been charged, with two facing the most severe charge of “aggravated homosexuality.” The law also prescribes punishment for the promotion of homosexuality. The international response to this law has been varied, including the World Bank’s suspension of new public loans to Uganda last month and the United States imposing visa restrictions on specific Ugandan officials in June.
In a written statement delivered to the European Parliament on Wednesday, Jutta Urpilainen, the European Commissioner for International Partnerships, expressed that withholding financial assistance from Uganda due to its legislation, which mandates the death penalty for specific same-sex activities, would result in the withholding of crucial support from vulnerable communities. She also clarified that “high-level EU officials have raised the issue with the Ugandan Government, Parliament, and President. In this dialogue, the EU emphasised that the criminalisation of homosexuality is contrary to the principles of equality and non-discrimination in the Universal Declaration of Human Rights and the African Charter on Human and People’s Rights.”
In response to the statement, Convening for Equality Uganda stated “The recent EU announcement misses a critical opportunity to take more strategic action to protect the fundamental principle of non-discrimination – something the EU and EU member states profess a deep commitment to.”
The EU is one of Uganda’s biggest donors, funding infrastructure projects, health programmes and food assistance.
Canada issues advisory to warn LGBTQ+ people travelling to the US
Canada has updated its travel advisory for the United States, warning its LGBTQ+ residents that they may be affected by some state laws if they travel across the border.
USA: Nebraska governor signs contentious executive order defining ‘male’ and ‘female’
Nebraska Governor Jim Pillen signed an executive order Wednesday defining the words male and female, regulating how state agencies apply rules relating to sex. While Pillen asserted that the order would safeguard women’s sports and safety, opponents have criticized it as an attack on transgender rights.
Called the Women’s Bill of Rights, the order states there are biological differences between males and females in athletic abilities as well as safety concerns which warrant sex-based segregation for some athletic, social and educational spaces.
Specifically, the executive order defines the terms sex, female, male, woman, girl, man, boy, mother and father for use by state agencies. According to the order:
A “female” is an individual whose biological reproductive system is developed to produce ova; a “male” is an individual whose biological reproductive system is developed to fertilize the ova of a female.
Additionally, the terms woman, mother, and girl refer to a human female, while the terms man, father and boy refer to a human male. Finally, sex refers to a person’s sex assigned at birth.
Pillen said in a statement: “As Governor, it is my duty to protect our kids and women’s athletics, which means providing single-sex spaces for women’s sports, bathrooms, and changing rooms.”
Many advocates say this executive order unjustly targets transgender people and doubles down on bans prohibiting transgender individuals from playing on sports teams that match their gender identity. Nebraska State Senator Megan Hunt responded to the order on X (Twitter). “The truth is, no executive order can erase trans people. They have always existed and always will,” she said.
Wednesday’s order mirrors similar states’ efforts to define sex and gender terms. This year, Alabama’s legislature advanced a bill and Oklahoma’s governor signed an executive order using identical definitions.
Czech businesses urge PM to support same-sex marriage
Dozens of companies are calling on Czech Prime Minister Petr Fiala (ODS/ECR) to legalise same-sex marriage so that their employees can live and work in the Czech Republic without discrimination and prejudice, an open letter signed by major international and Czech companies said on Wednesday.
The letter was signed by 66 entities, including multinational companies like Microsoft, IBM, Ikea, banks, breweries and Czech automotive.
“As employers who collectively employ tens of thousands of people in the Czech Republic, we support and welcome their diversity. We share the wishes of lesbian, gay, bi and trans (LGBT) people to live and work in the Czech Republic without discrimination and prejudice,” the letter says.
Companies argue that unequal conditions cause unnecessary expenses.
Hong Kong top court affirms government obligation to recognise same-sex couples
The Hong Kong Court of Final Appeal handed down a judgment on Tuesday finding that the Hong Kong government has a duty to provide an “alternative legal framework for recognition of same-sex relationships.” The court also held that the government’s longstanding failure to do so amounts to a violation of the constitutional right to privacy, but it denied that the right to same-sex marriage is constitutionally guaranteed.
The appellant is Jimmy Sham Tsz Kit. He and his husband got married in New York 10 years ago and have been challenging Hong Kong’s refusal to recognize same-sex marriage since 2018.
By a majority of 3 to 2, the court acknowledged same-sex couples’ need for an alternative legal framework in order to meet basic social requirements as well as to have a sense of legitimacy. Following previous challenges surrounding same-sex couples’ access to dependent visas, spousal benefits for civil servants and access to public housing, the court observed that litigation and court proceedings have subjected same-sex couples to publicity, stress and expenses, while they still suffer from difficulties due to the non-recognition of their relationships.
However, the five-judge panel unanimously upheld lower court rulings which held that the constitutional freedom of marriage guaranteed and protected under Hong Kong’s Bill of Rights and the Basic Law (the “mini constitution”) is confined to opposite-sex marriage. Further, as same-sex couples lack the capacity to enter into a legally recognised marriage in Hong Kong, any recognition of foreign same-sex marriages is also denied according to the lex specialis principle.
Sham’s initial attempt and his first appeal failed, as lower courts were unwilling to recognise a constitutional right for same-sex couples to enter into a marriage in Hong Kong. The courts were also unwilling to recognise foreign same-sex marriages under Hong Kong law, and they denied that authorities have a constitutional obligation to enable official recognition of same-sex partnerships.
In fact, Sham was not the first to challenge the failure of the laws in Hong Kong to recognise and accept same-sex marriage. In 2019, the Court of First Instance ruled that the definition of marriage is confined to the “voluntary union for life of a man with a woman” and that the constitutional freedom of marriage guaranteed and protected under the Bill of Rights and the Basic Law is confined to opposite marriage. Since then, Hong Kong Courts, even the higher courts, have been reluctant to depart from this ruling.
Other than an LGBTQ+ activist, Sham is also a pro-democracy activist. He used to be the former convenor of Civil Human Rights Front, the pro-democracy organisation which organised the demonstration which started the 2019 Anti-Extradition protests in Hong Kong. He was arrested in 2021 for violating the National Security Law, which was enacted by the government to suppress anti-government activists after the Anti-Extradition protests in 2019, and has been remanded in custody since then. Last year, he pleaded guilty to violating the National Security Law.
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 