Russia Duma passes ban on gender-affirming surgeries

Russian lawmakers unanimously passed a bill on Friday to ban gender-affirming surgeries for transgender people in the country. The Chairman of the Russian State Duma Viacheslav Volodin announced the bill’s passage on his Telegram channel, claiming the bill will protect Russian citizens and children.

The bill prohibits surgery and hormone therapy for transgender individuals as well as any gender changes on official Russian documentation. The bill also applies retroactively, barring any Russians who have already transitioned from adopting children. The bill also annuls transgender individuals’ marriages.

The only exceptions to the bill’s wide-reaching language apply in cases of medical interventions for congenital anomalies or children born intersex.

Speaking to the Associated Press ahead of the bill’s final reading, Executive Director of Russia’s Independent Psychiatric Association Lyubov Vinogradova said gender-affirming procedures “shouldn’t be banned entirely, because there are people for whom it is the only way to … to exist normally and find peace with themselves.”

The law’s passage through the Russian Duma reflects theescalating persecution of LGBTQ+ people within the country, despite international pressure to reverse course. In December, Russia enacted a sweeping law banning “LGBT propaganda,” including any and all positive displays of LGBT relationships and lifestyles for all age groups. In April, Russian authorities arrested two men and charged them with violating the law because the two released videos to YouTube and TikTok where they can be seen touching. 

The law also reflects a global rise in the persecution of transgender and LGBTQ+ people, including broad restrictions on gender-affirming care in the US and laws elsewhere, which criminalize LGBTQ+ people entirely.

The bill now goes to Russian President Vladimir Putin for final approval, at which time the law will come into effect.

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The latest issue of the Australian Feminist Law Journal (Vol. 49, no. 1, 2023) focuses on “International Law Dis/oriented: Sparking Queer Futures in International Law”

Contents include:

• Special Issue: International Law Dis/oriented: Sparking Queer Futures in International Law
  • Lena Holzer, Bérénice K. Schramm, Juliana Santos de Carvalho & Manon Beury, An Introduction to International Law Dis/oriented: Sparking Queer Futures in International Law
  • Claerwen O’Hara, In Search of a Queerer Law: Two People’s Tribunals in 1976
  • Giovanna Gilleri, Human Rights Discourses and Subject Formations: Tainting Queer Theory with Psychoanalysis
  • Kseniya A. Kirichenko, Queer Intersectional Perspective on LGBTI Human Rights Discourses by United Nations Treaty Bodies
  • Odette Mazel, The Texture of ‘Lives Lived with Law:’ Methods for Queering International Law
  • David Ikpo, Advancing Queer-inclusive International Human Rights Law Education in Nigerian Classrooms through Indigenous Storytelling: Stories from a Law Classroom at Eko (Lagos, Nigeria)
  • Shaimaa Abdelkarim, Farnush Ghadery, Rohini Sen & Lena Holzer, A Roundtable Conversation: Feminist Collaborative Ethos in International Law
  • Samuel Ballin, Four Challenges, Three Identities and a Double Movement in Asylum Law: Queering the ‘Particular Social Group’ after Mx M
  • Leonam Lucas Nogueira Cunha, Queer Methodologies in the Study of Law: Notes about Queering Methods

Japan Supreme Court finds restriction on transgender bathroom usage unlawful

The Supreme Court of Japan ruled on Tuesday that the restriction of transgender women’s use of female bathrooms is unlawful. This landmark decision overturns a 2021 Tokyo High Court ruling and marks the first time the high court has spoken to sexual minorities’ usage of bathrooms.

The five-judge Supreme Court panel found unanimously in favor of the appellant. The court found that the government’s restriction on bathroom usage was unjust and inappropriate.

In this case, the appellant—who chose to remain anonymous—still bears a male gender marker because of being unable to undergo the required surgery, due to health reasons. Under current Japanese law, transgender people in Japan can only alter their gender markers on their family register after undergoing gender reassignment surgery.

The case arose when the Ministry of Economy, Trade and Industry forced the appellant to use a bathroom several floors below the floor that she worked on because her fellow coworkers were uncomfortable with her using the women’s bathroom on their floor. The appellant was forced to undergo this treatment at work from 2010 through 2013, at which point she asked the National Personnel Authority, under Article 86 of the National Public Service Act, to lift the restriction on her bathroom use. Her request was rejected and she filed suit in 2015.

A district court found in favor of the appellant in 2019. However, that ruling was later overruled by a Tokyo High Court ruling in 2021.

Ultimately, the Supreme Court overruled the 2021 ruling in their Tuesday decision. The court held that the appellant’s workplace should have not only considered the comfort of the appellant’s coworkers in allowing the appellant to use female bathrooms, but also the appellant’s benefit of leading a social life based on her own gender identity. The court accused the government of not doing enough to work towards the realization of an inclusive society that respects diversity, such as that of the appellant.

Toshimasa Yamashita, the legal representative of the appellant, hoped that the legislature will draft new guidelines on bathroom usage by transgender people soon. The Chief Cabinet Secretary Hirokazu Matsuno responded in a press conference that the government is considering next steps.

Japan is currently the only G7 country which lacks legal protection over sexual minorities’ rights. Yet, four local courts, including the Nagoya and the Fukuoka District Courts, have recently ruled that the lack of legal protection for same-sex marriage is unconstitutional.

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European Court of Human Rights backs Semenya appeal against Swiss decision (intersex)

The South African runner had appealed a ruling by a Swiss court, upholding regulations that forced her to artificially reduce her naturally high testosterone levels in order to compete in women’s races. Double Olympic champion runner Caster Semenya won an appeal against track and field’s testosterone rules on Tuesday when the European Court of Human Rights ruled she had been discriminated against. The ruling could force sport’s highest court to re-examine the regulations that force Semenya and other female athletes to artificially reduce naturally high testosterone levels in order to compete at top meets such as the Olympics and world championships. The Strasbourg-based rights court ruled in Semenya’s favour by a four-three majority of judges. + Why Swiss courts are involved in the Semenya case The court also ruled the South African runner was denied an “effective remedy” against that discrimination when the Swiss-based Court of Arbitration for Sport (CAS) and Switzerland’s…

More: https://www.swissinfo.ch/eng/society/european-court-backs-semenya-appeal-against-swiss-decision/48656302

Press Release: https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-7701642-10631202%22]}

Jugement en français: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-225768%22]}

US federal court allows Tennessee ban on gender-affirming healthcare for minors

The US Court of Appeals for the Sixth Circuit ruled on Saturday in favor of Tennessee, removing a temporary injunction placed on a Tennessee law banning gender-affirming healthcare for minors, including hormones and puberty blockers. This ruling will allow the ban to be in effect immediately, despite ongoing litigation.

Chief Judge Jeffrey Sutton, writing for the majority, opined that the district court that granted the original injunction had exceeded its scope, saying, “A court order that goes beyond the injuries of a particular plaintiff to enjoin government action against nonparties exceeds the norms of judicial power.” Sutton also went on to claim that the plaintiffs were not likely to succeed on their constitutional claims, saying:

[T]he challengers do not argue that the original fixed meaning of either the due process or equal protection guarantee covers these claims. That prompts the question of whether the people of this country ever agreed to remove debates of this sort—about the use of new drug treatments on minors—from the conventional place for dealing with new norms, new drugs, and new technologies: the democratic process. Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field.

Sutton concluded, saying, “These initial views, we must acknowledge, are just that: initial. We may be wrong. It may be that the one week we have had to resolve this motion does not suffice to see our own mistakes.”

Judge Helen White concurred in part and dissented in part, writing, “Because I believe that Tennessee’s law is likely unconstitutional based on Plaintiffs’ theory of sex discrimination, I would not stay the district court’s injunction, although I would narrow its scope.”

Groups who assisted the plaintiffs in filing the original suit, including The American Civil Liberties Union (ACLU), Lambda Legal and Akin Gump Strauss Hauer & Feld LLP have condemned the ruling, stating, “This ruling is beyond disappointing and a heartbreaking development for thousands of transgender youth, their doctors, and their families.” However, Tennessee Attorney General Jonathan Skrmetti celebrated the ruling, saying, “The case is far from over, but this is a big win.”

The original suit, LW v. Skrmetti, was filed in April by several Tennessee families, and challenged SB 1, Tennessee’s ban on transgender healthcare for minors, claiming it is unconstitutional and discriminatory. SB 1 was passed in 2022 and signed into law by Tennessee’s governor in March. The US District Court for the Middle District of Tennessee originally granted the plaintiffs a preliminary injunction to stop enforcement of the ban while litigation was ongoing. Skrmetti’s office appealed the district court ruling at the end of June.

LGBTQ+ issues have been in the foreground in Tennessee in the last few months, with the state’s ban on drag performance struck down in early June.

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Interesting Article: Same-Sex Marriage in Japan and the Role of Courts in a Dominant Party System

Guy Baldwin, Same-Sex Marriage in Japan and the Role of Courts in a Dominant Party System (questioning whether judicial deference on the question of the constitutionality of Japan’s failure to provide for same-sex marriage makes sense in a dominant party system)

See: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4490325

Ghana Parliament unanimously passes extreme anti-gay bill

The Parliament of Ghana passed an extreme anti-gay bill on Wednesday, which is set to tighten laws against members of the LGBTQ+ community. Ghana’s 275 members of Parliament unanimously passed the bill, known as the 2021 Promotion of Appropriate Sexual Rights and Family Values Bill.

The bill is set to criminalize the promotion, advocacy, funding and acts of homosexuality. It stiffens prison terms up to ten years in prison for LGBTQ+ advocates and three years for anyone identifying as such. Moreover, the bill seeks to withdraw health services from this community, including HIV medication.

The bill’s main sponsor, legislator Sam Nartey George, said, “[H]omosexuality is not a human right in Ghana, but a lifestyle choice. A sexual preference.” With this reasoning, legislators viewed preferences as not absolute, meaning they did not hesitate to pass a bill against it. Furthermore, George warned the US not to interfere with plans to pass the bill into law, threatening to halt Ghana’s business interests in the country. He said this in reference to the travel restrictions imposed upon Uganda following the signing of their own anti-LGBTQ+ law.

Speaker of Parliament Alban Bagbin, stated LGBTQ+ practices are strongly abhorred and will not be allowed to take root in the country. He said:

I am very clear in my mind that the Parliament of Ghana will pass this Bill (to criminalize LGBTQ). I have gone through it and I will confirm that the Bill will be a reference point for many countries. It has gone through all the provisions of the constitution, laws and international obligations.

Rightify Ghana, a human rights organization in Ghana, believes that the passing of this bill erodes progress towards fighting HIV and AIDS. Additionally, they quoted a 2021 statement from the UN anti-AIDS program, UNAIDS, that viewed this bill as undermining the basic rights of the LGBTQ+ community. The statement warned of the potential for international law violations if the bill passed, and stated, “Given that LGBTI people are present in every family and every community it is not very difficult to imagine how, if it were to be adopted, this legislation could create a recipe for conflict and violence.”

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European Parliament briefing: Free movement rights of rainbow families

More: https://www.europarl.europa.eu/thinktank/en/document/EPRS_BRI(2023)749768

Nepal ordered to recognise same-sex marriage by Supreme Court

The Supreme Court of Nepal issued an interim order to the Nepali government on Friday to recognize same-sex marriage by allowing same-sex couples and other non-heterosexual couples to register for marriage in the country. The order issued by Justice Til Prasad Shrestha calls for necessary amendments to the provisions related to marriage and marriage registration within the current National Civil (Code) Act, 2017 (2074), where marriage is deemed as “a man and a woman accept[ing] each other as the husband and wife” under the Family Law.

The Supreme Court order is a direct result of a petition filed by Nepali national Adhip Pokharel and German national Tobias Volz, who married in Germany in 2018. Volz applied for a non-tourist visa to stay in Nepal as the spouse of Adhip Pokharel in 2022. The application was denied by Nepali authorities on the grounds that there is no provision in Nepal’s law to register same-sex marriages. The couple subsequently brought the case to the Supreme Court, which finally issued an order granting a non-tourist visa for the German citizen.

This decision continues the liberal and progressive trend in Nepal. In 2008, Nepal became the first nation in South Asia to recognize the rights of LGBTI+ people by categorizing them under the “third gender” in the case Sunil Banu Pant v. Nepal Government, and in 2012 the Nepali Supreme Court allowed a lesbian couple to cohabitate. The rights of sexual and gender minorities have been enshrined in the Constitution of Nepal since 2015. 

Nepal is now one of the only two jurisdictions in largely conservative Asia to allow same-sex marriage. Previously in 2019, Taiwan became the first in Asia to legalize gay marriage.

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Hong Kong top court begins hearing appeal in same-sex marriage case

The Hong Kong Court of Final Appeal finished hearing submissions from parties on Thursday in a case involving the constitutionality of Hong Kong’s preclusion of same-sex marriage. This is the first time the top Hong Kong court dealing directly with the homosexual couples’ right to marry. The applicant, Jimmy Sham, also happens to be a defendant in the “Hong Kong 47” case.

The lower Court of Appeal previously dismissed the constitutional review, citing four primary reasons for its decision.

First, the interpretation of the term “marriage” in Article 37 of the Basic Law cannot include same-sex marriage. The court believed that same-sex marriage was first legally recognised in the Netherlands in 2001. For that reason, in the court’s view, the drafters of the Basic Law were not likely to have included same-sex marriage in the Basic Law, which was adopted in the 1990’s.

Second, the Court of Appeal disagreed with the applicant’s argument that same-sex couples’ right to marry can arise from the right to equality and the right to privacy. Under constitutional law, the principle of lex specialis provides that if there is a specific provision on a particular subject matter, it will prevail over some other general provisions. Lex specialis, therefore, dictates that the right to equality and the right to privacy cannot be the grounds for same-sex couples to access the right to marry.

Third, the court did not accept the argument that the Hong Kong government had a positive duty to protect the same-sex couples’ right to marry. The Court of Appeal contended that the law only prevents the government from interfering with citizens’ right to form a family, not ensuring that such a right is recognized.

Fourth, the Court of Appeal held that discrimination is not sound legal ground because other grounds of law cannot circumvent the special status of marriage in Article 37, which prefers heterosexual marriages.

Sham applied to the Court of Final Appeal seeking to challenge the rightfulness of the lower court’s reasonings. In doing so, Sham introduced the concept of core rights. He suggested that the government has a positive duty to protect the core rights of married couples, regardless of their sexual orientation, including the right to inheritance. The government challenged that the concept of core rights is too vague and will only attract more legal challenges.

Previously, the Hong Kong Court of Final Appeal demonstrated its judicial open-mindedness occasionally on the issue of sexual equality. In February, the court recognized pre-operative transexual citizens’ right to have their gender marker on HKID recorded according to their acquired gender. A few other cases on the marital rights of same-sex couples are also pending judgments at the Court of Appeal, including the right of inheritance and the right to apply for public housing unit as a married couple.

The applicant, Sham, is also facing trial in the case of conspiracy to commit subversion. Sham was one of the pro-democracy activists who participated in the 2020 pro-democracy Hong Kong primaries. The prosecution alleges that the primary election was an effort to take control of the Legislative Council and to paralyze the government’s operation. Thursday marks day 79 of the trial, and Sham has been remanded for more than 700 days since the trial began.

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