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.
Uganda president signs anti-LGBTQIA+ law that includes death penalty
President of Uganda Yoweri Museveni signed the controversial Anti-Homosexuality Act 2023 into law Monday. The law authorizes the death penalty for “aggravated homosexuality,” which includes same-sex relations with a vulnerable person, a person under 18, or when the actor is HIV positive. The bill also sets a term of life in prison for anyone convicted of “homosexuality,” which constitutes all other same-sex relations.
The bill was originally passed by the Ugandan Parliament in March, but Museveni refused to sign the bill, sending it back to parliament with requested changes. Parliament then passed an updated version, with Museveni’s changes, refining the bill’s focus to target those who engage in or “promote” same-sex relations.
The bill has faced condemnation from political leaders across the globe. UK Minister of State for Africa Andrew Mitchell expressed concern over the bill saying, “Democracy depends on the guarantee of equal rights under law and freedom from discrimination for everyone in society. This legislation undermines the protections and freedoms of all Ugandans enshrined in the Ugandan Constitution.”
US President Joe Biden also condemned the bill, stating:
The enactment of Uganda’s Anti-Homosexuality Act is a tragic violation of universal human rights—one that is not worthy of the Ugandan people, and one that jeopardizes the prospects of critical economic growth for the entire country…This shameful Act is the latest development in an alarming trend of human rights abuses and corruption in Uganda.
Biden went on to state that his administration would review several aid programs that benefit Uganda and consider potential sanctions. The United Nations Human Rights Office also condemned the law, warning, “It is a recipe for systematic violations of the rights of LGBT people & the wider population.”
Arthur Kamiya, a Ugandan LGBTQIA+ activist residing in Britain, called on businesses to stand with LGBTQIA+ Ugandans, stating, “…big business has obligations to ensure gay lives are protected and should be putting their economic investment on the table as leverage.”
The Speaker of the Ugandan Parliament Anita Annet Among defended the law, saying, “As Parliament of Uganda, we have heeded the concerns [of] our people and legislated to protect the sanctity of family.”
According to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), across the African continent, only 22 of 54 countries have legalized homosexuality. Mauritania and Somalia allow the death penalty for same-sex sexual acts.
USA: Alabama legislature advances bill defining biological sex
European Court of Human Rights (ECHR) found Tuesday that Romania violated the European Convention on Human Rights article 8’s right to respect for private and family life because of the “absence of any form of legal recognition and protection for same-sex couples.”
The case, Buhuceanu and Others v. Romania arose when Romania rejected the application of 21 same-sex Romanian couples’ request to marry. Under current Romanian law, marriage is only recognized between a man and a woman. Under article 277 section 1 of Romania’s Civil Code, “[s]ame-sex marriage is prohibited.” The couples then filed suit to the court, arguing that Romania’s laws violated their right to respect for their private and family lives and amounted to “discrimination against them on the grounds of their sexual orientation.”
The judgement–which was decided 5 to 2 in favor of the applicants–found that there had been a violation of article 8 of the European Convention on Human Rights by Romania. Article 8 states that “[e]veryone has the right to respect for his private and family life” and that there can be “no interference by a public authority with the exercise of this right except” under narrow considerations.
In its submission, Romania’s government argued that, because majority of the Romanian population are against same-sex unions, to recognize same-sex relationships as legal would be against public interest. It was further submitted that Romanian courts had not yet determined if same-sex couples benefitted from having legally recognized unions, which was contrary to the ECHR’s decision in the case of Oliari and Others v. Italy. That decision found that allowing same-sex unions does not stop opposite-sex marriages from legal recognition. Therefore, there is no legal justification relating to public interest for the absence of legal recognition for same-sex unions.
The court found that Romania’s government’s submissions to the court on grounds of public interest did not prevail “over the applicants’ interest in having their respective relationships adequately recognised and protected by law.
While the standard for non-punitive damages was met, the court did not name an amount. The applicants’ claims for punitive damages were rejected.
Pakistani trans activists to appeal Sharia court ruling
Transgender activists in Pakistan plan to appeal to the highest court against an Islamic court that overturned the country’s 2018 laws protecting transgender rights such as legal gender recognition.
ECtHR: Romania’s failure to provide any legal recognition of same-sex relationships violates Article 8 ECHR
Very different dissenting opinions:
PARTLY DISSENTING OPINION OF JUDGE GUERRA MARTINS
1. I fully agree that there has been a violation of Article 8 of the Convention in the present case.
2. However, for the reasons set out below I cannot join the majority in concluding, with extremely succinct reasoning, that there is no need to examine the complaint under Article 14 of the Convention taken in conjunction with Article 8, based on § 230 of the judgment in Fedotova and Others ([GC], nos. 40792/10 and 2 others, 17 January 2023).
3. First and foremost, I firmly believe that discrimination on the ground of sexual orientation is a fundamental aspect of this case and that it should therefore have been addressed.
4. Secondly, I am fully aware that Fedotova and Others is a judgment of the Grand Chamber, which gives it a certain supremacy over the judgments of the Chambers. In fact, although neither the Convention nor the Rules of Court contain an express provision granting priority to those judgments (indeed, the system of stare decisis is not applicable to the Convention), one can accept that there is a broad consensus in so far as the Convention and the Rules of Court implicitly presuppose that the judgments of the Grand Chamber are to be followed by the Chambers until they are reversed by the Grand Chamber.
5. Thirdly, that said, it is worth noting that I have already had the opportunity to respectfully disagree with what I consider to be the Court’s restrictive interpretation of Article 14 of the Convention (see, recently, the partly dissenting opinion of Judges Yudkivska, Lubarda, Guerra Martins and Zünd joined by Judge Kūris, in the case of Macatė v. Lithuania (no. 61435/19, 23 January 2023). It is true that the factual situation in the two cases is different, but the rationale behind the finding of no violation of Article 14 in conjunction with Article 10 in Macatė reflects the same restrictive approach to Article 14 as in the present case.
6. In that opinion we argued precisely that anti-discrimination law has evolved in the past few decades, especially in Europe, and that as a result the Court must adapt its reasoning to the new trends.
7. Finally, the finding of no violation of Article 14 in Fedotova and Others was not unanimous. Judge Pavli, joined by Judge Motoc, added a partly dissenting opinion whose reasoning, in my humble view, is more accurate than the reasoning of the majority. Therefore, without further explanation, I would say that had I been part of the composition of the Court in Fedotova and Others I would have joined the partly dissenting opinion of my colleagues. Consequently, I cannot accept the finding of no violation of Article 14 in the current case based on Fedotova and Others without expressing my opinion.
8. Although this does not change anything in the current case, it might pave the way for the future evolution of the Court’s case-law regarding Article 14 of the Convention.
JOINT DISSENTING OPINION OF JUDGES WOJTYCZEK AND HARUTYUNYAN
1. We respectfully disagree with the view that the instant applications are admissible and that Article 8 has been violated.
2. The Court has consistently held that Article 34 does not allow complaints in abstracto alleging a violation of the Convention. The applicants have to show that they are personally affected by the contested legislation (see, for instance, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014).
In the instant case, the applicants pointed to a certain number of shortcomings of the national legislation in several domains. However, in our view, they did not provide sufficient evidence that those shortcomings had affected them personally and, in any event, they did not bring their complaints to the attention of the relevant authorities (with the exception of the proceedings mentioned in paragraph 6). The grievances as formulated by the applicants are reflected in the very concise factual findings. The majority decided to follow the approach of the applicants and to review the applicable legislation in abstracto without looking at the practical difficulties the applicants had actually encountered.
3. The majority rely on the judgment in the case of Fedotova and Others v. Russia ([GC], nos. 40792/10 and 2 others, 17 January 2023), and refer to it throughout the reasoning. That judgment was rendered in very specific factual circumstances which are characterised by the following three features, as set out in that judgment:
(i) “The present case concerns the absence in Russian law of any possibility of legal recognition for same-sex couples, regardless of the form such recognition may take” (§ 155, emphasis added).
(ii) “Nor is it disputed that Russian law has not changed at all since the present applications were lodged …” (§ 193, emphasis added).
(iii) “The Court notes that the respondent State did not inform it of any intention to amend its domestic law in order to allow same-sex couples to enjoy official recognition and a legal regime offering protection” (§ 194, emphasis added).
4. The instant case differs from the case of Fedotova and Others v. Russia on all these three counts.
(i) As explained by the Government, Romanian law provides for some forms of recognition of same-sex couples and protection for them. The majority note in particular the following developments in this regard:
“In this context, the Court takes note of the adoption by Romania of more inclusive legal provisions of a general nature such as Article 1391 of the Civil Code (see paragraph 9 above) and the legislation sanctioning all forms of discrimination (see paragraph 10 above) and of the broader interpretation given by the Constitutional Court to the notion of family life set forth by Article 26 of the Constitution (see paragraphs 15 and 16 above)” (paragraph 77).
We note in this context that the Constitution, as interpreted by the Constitutional Court, protects same-sex couples. Some specific legislative provisions set forth this protection. In particular, Article 1391 of the Civil Code is interpreted as a form of recognition of same-sex couples for specific purposes. Furthermore, European Union law recognises same-sex couples and grants them a series of rights. European Union law is a part of Romanian domestic law and is directly applicable in Romania. In any event, it would have been necessary to carry out a thorough analysis of the domestic law, domain by domain, in order to determine with sufficient precision the legal status of same-sex couples. We also note en passant that in Romania the number of unmarried different-sex couples is growing, which shows that the legal regime provided to unmarried couples does not appear unattractive.
(ii) The domestic law is changing. The above-mentioned elements have been adopted recently and we note that the case-law, in particular, is expanding the scope of protection provided to non-married couples, whether they are of the same or different sex.
(iii) The Government have expressed their willingness to amend the legislation.
5. In the case of Fedotova and Others (cited above), the Court explained the scope of States’ obligations in respect of same-sex couples in the following terms (emphasis added):
“188. Nevertheless, as is already apparent from the Court’s case-law (see Schalk and Kopf, § 108; Gas and Dubois, § 66; Oliari and Others, § 177; and Chapin and Charpentier, § 48, all cited above), the States Parties have a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same-sex couples, which does not necessarily have to take the form of marriage (see paragraph 165 above). Indeed, States have the ‘choice of the means’ to be used in discharging their positive obligations inherent in Article 8 of the Convention (see Marckx, cited above, § 53). The discretion afforded to States in this respect relates both to the form of recognition and to the content of the protection to be granted to same-sex couples.
6. We note that in the judgment in the case of Fedotova and Others (cited above), the Court, unlike for different-sex couples, leaves a very broad freedom to the States in defining the legal regime for same-sex couples. The underlying idea was to allow the States to adapt their legislation step‑by‑step and domain by domain rather than in a single revolutionary move which might trigger strong opposition and ultimately prove counter-productive. We observe that the Council of Europe expressed the view that while “a considerable number of member states have made substantial progress regarding the legal and social recognition of LGBT persons, albeit often in a challenging context”, “a climate of opposition to LGBT human rights has simultaneously gained ground in certain European countries” (see the CDDH Report on the implementation of Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted by the CDDH at its 92nd meeting (26‑29 November 2019), paragraphs 11‑12).
7. It is important to note that the judgment in the case of Fedotova and Others (cited above) does not equate legal recognition with registration. States may choose among several possible means of granting legal recognition to same-sex couples. They may either create the possibility for same‑sex couples to register their union (recognition by registration) or grant recognition ex lege in different branches of the law, so that such couples acquire ex lege certain specific rights and obtain their protection (recognition ex lege). What is important – under the approach adopted in Fedotova and Others (cited above) – is that rights and protection are granted ex lege, without the necessity to apply to the domestic courts for protection, so that the couples can rely upon the mere existence of their relationship in dealings with the judicial or administrative authorities (see Fedotova and Others, cited above § 203). The advantage of this second method is that rights are automatically granted to all cohabiting couples and are not restricted to those who choose to register. At the same time, it should be noted that registration does not confer per se broader or stronger rights.
8. The majority make the following assessment in paragraph 76 of the judgment:
“The Court observes that Romanian law provides for only one form of family union – an opposite-sex marriage and does not provide for legal recognition for same-sex couples (see paragraph 9 above).”
In our view, for the reasons explained above, not only does Romanian law provide for some forms of recognition for same-sex couples, but the scope of this recognition is also expanding.
9. To sum up, as rightly stated in Fedotova and Others (cited above, § 189):
“…it is above all for the Contracting States to decide on the measures necessary to secure the Convention rights to everyone within their ‘jurisdiction’, and it is not for the Court itself to determine the legal regime to be accorded to same-sex couples …”
For all these reasons, we consider that the respondent State has not violated its obligations under the Convention.
European Court of Human Rights (ECHR) found Tuesday that Romania violated the European Convention on Human Rights article 8’s right to respect for private and family life because of the “absence of any form of legal recognition and protection for same-sex couples.”
The case, Buhuceanu and Others v. Romania arose when Romania rejected the application of 21 same-sex Romanian couples’ request to marry. Under current Romanian law, marriage is only recognized between a man and a woman. Under article 277 section 1 of Romania’s Civil Code, “[s]ame-sex marriage is prohibited.” The couples then filed suit to the court, arguing that Romania’s laws violated their right to respect for their private and family lives and amounted to “discrimination against them on the grounds of their sexual orientation.”
The judgement–which was decided 5 to 2 in favor of the applicants–found that there had been a violation of article 8 of the European Convention on Human Rights by Romania. Article 8 states that “[e]veryone has the right to respect for his private and family life” and that there can be “no interference by a public authority with the exercise of this right except” under narrow considerations.
In its submission, Romania’s government argued that, because majority of the Romanian population are against same-sex unions, to recognize same-sex relationships as legal would be against public interest. It was further submitted that Romanian courts had not yet determined if same-sex couples benefitted from having legally recognized unions, which was contrary to the ECHR’s decision in the case of Oliari and Others v. Italy. That decision found that allowing same-sex unions does not stop opposite-sex marriages from legal recognition. Therefore, there is no legal justification relating to public interest for the absence of legal recognition for same-sex unions.
The court found that Romania’s government’s submissions to the court on grounds of public interest did not prevail “over the applicants’ interest in having their respective relationships adequately recognised and protected by law.
While the standard for non-punitive damages was met, the court did not name an amount. The applicants’ claims for punitive damages were rejected.
US FDA relaxes blood donation rules for gay and bisexual men
The US Food and Drug Administration has eased its restrictions barring gay and bisexual men from giving blood.
The agency, in 2015, dropped a lifetime ban on donations from men who have sex with men, but its donation guidelines have been criticised for years.
The FDA’s latest policy evaluates all prospective donors by the same set of criteria while screening for recent, higher-risk sexual activity.
The update takes its cue from the UK and Canada.
Both countries moved, in 2021 and 2022 respectively, to allow donations from men who have had sex with other men in the past three months.
But the rule change only applies to those who have had the same sexual partner during the period. Those who have had new or multiple partners, and anal sex, in the past three months are not eligible to give blood.
The FDA is also recommending that those who use pre-exposure prophylaxis (PRrEP) or post-exposure prophylaxis (PEP) – medications commonly used to prevent HIV infection – must defer making a donation.
The agency said use of these drugs could delay the detection of HIV and therefore turn up false negative results in a screening test.
Gay and bisexual Americans were banned from donating blood in 1983, as fear and misinformation over the spread of HIV/AIDS became widespread.
That was replaced in 2015 by a requirement for men to abstain from sex for one year before giving blood.
In 2020, the agency shortened that abstinence period to three months as the Covid-19 pandemic drained the nation’s blood supply.
Blood donations have stabilised since then, but the FDA said the move to an “individual risk-based approach” could expand the donor base.
It marks a turning point for the regulator, whose previous screening rules were condemned as homophobic.
Dr Scott Hadland, a Harvard-trained physician, wrote on Twitter: “I used to routinely donate blood (and once organized a campus-wide blood drive in college) but haven’t been able to for years because of this discriminatory policy. Thrilled by this change.”
Gay rights advocates also welcomed the move, with the Human Rights Campaign (HRC) saying the policy “ends a decades-old ban rooted in discrimination and bias”.
The Gay & Lesbian Alliance Against Defamation (GLAAD) said it “signals the beginning of the end of a dark and discriminatory past rooted in fear and homophobia”, but it also had a word of caution.
“Placing potential blood donors taking PrEP in a separate line from every other donor adds unnecessary stigma,” it said, adding: “The bias embedded into this policy may, in fact, cost lives.”
Join the World Bank for the launch of the Thematic Note on SOGI (Sexual Orientation and Gender Identity) Inclusion and to commemorate the International Day Against Homophobia, Transphobia, and Biphobia (IDAHOTB)
Join the World Bank for the launch of the Thematic Note on SOGI (Sexual Orientation and Gender Identity) Inclusion and to commemorate the International Day Against Homophobia, Transphobia, and Biphobia (IDAHOTB). This event raises awareness of the discrimination and exclusion that sexual and gender minorities face in our client countries. Discrimination based on SOGI has negative impacts on development outcomes and fuels the exclusion of sexual and gender minorities, creating barriers to accessing markets, services, and spaces. The event is an opportunity to learn about the links between gender equality and the inclusion of sexual and gender minorities in World Bank projects and analytics.
The event REPLAY will be available as soon as the event concludes.
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 