Category Archives: Allgemein

European Court of Human Rights: Discrimination in Poland against lesbian in custody case is a violation of the ECHR

European Court of Human Rights: Discrimination in Poland against lesbian in custody case is a violation of the ECHR

Posted: 17 Sep 2021 05:25 AM PDT, (c) Paul Johnson, ECHR Sexual Orientation BlogDiscrimination in Poland against lesbian in custody case is a violation of the ECHR

The First Section of the European Court of Human Rights has issued its judgment in the case of X v Poland
The case concerns the applicant’s claim that she had been discriminated against on the basis of her sexual orientation in proceedings for full parental rights and custody rights over her youngest child.

The Court held, by six votes to one, that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
Facts of the case

The applicant, Ms. X, is a Polish national who was born in 1970 and lives in Poland. She has four children from her marriage in 1993 with Mr. Y.

After becoming involved in a relationship with another woman, Ms. Z, Ms. X applied for a divorce in April 2005. Her parents, who did not approve of their daughter’s decisions, subsequently sought custody of the children. Temporary custody was granted to them by the District Court, sitting as a single judge – a judge who was allegedly well acquainted with her parents.

Following an appeal by both Ms. X and Mr. Y, in June 2005 the Regional Court quashed that decision. In the same month it pronounced a no-fault divorce and granted Ms. X full parental rights and custody of the four children.

In October 2006 the applicant’s former husband applied to change the custody arrangement. After assessment of their respective parenting abilities, during which the applicant was asked directly whether she was homosexual and had had sexual intercourse with Ms. Z, the District Court granted full parental rights to Mr. Y and restricting those of Ms. X.

Ms. X appealed, emphasising that she had always been the main carer for the children and that her former husband had not spent time with the children since the divorce, either not using his contact rights or leaving the children in the care of her parents. The appeal was dismissed.

In April 2008, Ms. X requested that the custody order be revised in respect of her youngest child. The District Court, sitting as the same single judge, and relying on the expert opinions issued in the previous proceedings, held that the applicant “had concentrated excessively on herself and her relationship with her girlfriend”, and rejected her request for an interim measure allowing her to retain custody during the proceedings.

In May 2008, Ms. X lodged an application challenging the impartiality of the judge. The following day, the same judge ordered that the child be removed from her care.

In June 2009, the District Court dismissed Ms. X’s application for amendment of the custody order and for parental and custody rights over the youngest child. The court decided that the seven-year-old should continue to live with his siblings and father so that his correct emotional and social development needs could be met, stating that that decision was “justified by the current stage of the child’s development and the father’s larger role in creating [the child’s] male role model”.

Ms. X appealed, claiming that the child was being looked after mainly by Mr. Y’s sisters and grandparents. She considered that the court had failed to recognise the interests of the child and had taken her husband’s homophobic opinions into account, opinions which he had voiced to the children, the courts and the experts. She argued that the main grounds for the court’s decisions had been her relationship with another woman and was discriminatory on the basis of her sexual preferences. The Regional Court dismissed the appeal.

Complaint to the Court

Ms. X complained that the domestic courts had refused to grant her custody of her child on the grounds of her sexual orientation, which amounted to discrimination in the enjoyment of her Convention rights, in breach of Article 14 taken in conjunction with Article 8 of the Convention.

Judgment of the Court

The Court applied its general approach to complaints brought under Article 14 of the Convention, which includes the principle that, in order for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous or relevantly similar situations.

The Court, therefore, considered whether there was a difference in treatment relevant to Article 14. In examining the domestic proceedings the Court found, for instance, that “references to the applicant’s homosexuality and relationship with Z were predominant in the first set of proceedings” (§ 76). 
The Court’s “inescapable conclusion” was that Ms. X’s “sexual orientation and relationship with another woman was consistently at the centre of deliberations in her regard and omnipresent at every stage of the judicial proceedings” (§ 79). 
The Court therefore concluded that there was a difference in treatment between Ms. X and any other parent wishing to have full custody of his or her child. This difference was based on her sexual orientation, a ground which is covered by “other status” in Article 14 of the Convention.

The Court then turned, as is standard in an Article 14 issue, to ask whether the difference in treatment was justified.

The Court focused on the fact that, in the most recent set of proceedings, the domestic courts refused to alter the status quo as regards custody on the basis of two main arguments: the advantages of all the siblings living together, and the importance of a “male role model” in the boy’s upbringing. 
The Court considered whether these arguments were appropriate to fulfil the purpose declared in these proceedings, namely to protect the best interests of the child. In so doing, the Court evaluated whether either or both reasons were based on discriminatory considerations.

The Court’s conclusion was that the reference to the importance of a male role model for the boy’s upbringing, the need for which would apparently increase as the child grew older, was discriminatory and a decisive factor in the dismissal of Ms. X’s requests for custody. 
Moreover, the Court noted that the domestic courts considered that a positive assessment of Ms. X’s competencies as a primary carer for her children depended on her stopping her relationship with Ms. Z. In this respect, the domestic courts referred to her relationship as “excessive involvement” and an “attitude” which needed to be “corrected” and expected the relationship to be “abandoned” and Ms. Z to be “excluded from family life”.

The Court concluded that in refusing to grant Ms. X full parental rights and custody rights the domestic authorities “made a distinction based solely or decisively on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention” (§ 92).

As such, there had been a breach of Article 14 of the Convention taken in conjunction with Article 8.


Dissenting opinion of Judge Wojtyczek (Poland)

Judge Wojtyczek filed a dissenting opinion, criticising the majority on three grounds, namely that (i) the proceedings raise serious reservations from the viewpoint of procedural justice, (ii) the factual findings made by the Court are not fully accurate, and (iii) the legal assessment of the merits of the case appears incorrect.
Judge Wojtyczek argued that the proceedings in this case are “fundamentally flawed from the standpoint of procedural justice” and that the majority “have established a difference in treatment without providing sufficient evidence that the applicant was treated differently from another class of parents in a similar situation”. 
Judge Wojtyczek concludes: “In any event, the contested domestic judgments remain within the scope of the margin of appreciation of the respondent State”.

European Parliament condemns failure to respect rights of same-sex partners in EU

European Parliament condemns failure to respect rights of same-sex partners in EU

European parliament resolution criticises bloc’s patchwork policy, as some countries ignore recent rulings.

European Parliament resolution on LGBTIQ rights in the EU

The continued failure of EU governments to respect the residency and benefits rights of same-sex partners as they move between countries in Europe has been condemned in a European parliament resolution.

Marriages and registered partnerships formed in one member state should be recognised in all of them, with same-sex spouses and partners treated equally to others, according to a text supported by 387 MEPs, with 161 voting in opposition and 123 abstaining.

The resolution was tabled in response to the confusing patchwork of policy applied to people in same-sex marriages and the failure of some member states to respect recent rulings by the European court of justice (ECJ), the arbiter of EU law.Advertisementhttps://9f9ca499991fb4ff26bb6b4a06010b30.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html

The EU’s 27 member states retain the freedom not to authorise marriage between people of the same sex, as is the situation in Bulgaria, Latvia, Lithuania, Poland, Romania and Slovakia.

But following a judgment by the ECJ in 2018, in a case taken against the Romanian authorities by Adrian Coman and his husband, Claibourn Robert Hamilton, EU governments are obliged to at least respect the residency rights of same-sex spouses who have been married elsewhere in the bloc.

However, according to a European parliament study the ruling has not led to a change in policy by the Romanian authorities, who are yet to issue a residence permit to Hamilton, three years after the judgment. And as many as 12 member states have been found granting the right of residence to a same-sex spouse but without attaching the name “spouse”.

The lack of recognition of same-sex marriage more broadly has created obstacles to people claiming pensions, the award of joint health insurance, and succession to tenancies.

The difficulties are said to be even greater for same-sex couples who are legal parents in one member state but who have found that their position changes on crossing a border.

They may cease to be legally a couple, becoming instead two unrelated individuals. Their child or children may go from having two legal parents to only one legal parent or, in a few cases involving surrogacy, to no legal parents, the parliament’s study found, leading to the denial of rights and benefits which the law reserves for “families”.

Two cases are pending before the European court of human rights in which same-sex couples who married abroad have been faced with the refusal of Polish authorities to register their marriage in the country’s marriage registry, on the basis that this would be contrary to “basic principles of the Polish law”.

The marriages are not recognised in Poland “for any legal purposes”, meaning rights or entitlements reserved for married couples are being refused to same-sex couples.

The MEPs’ resolution called on the European Commission to “ensure that all EU member states respect continuity in law as regards the family ties of members of rainbow families which move to their territory from another member state”.

Source: https://www.theguardian.com/world/2021/sep/14/meps-condemn-failure-respect-rights-same-sex-partners-eu

Read the Resolution: https://www.europarl.europa.eu/doceo/document/B-9-2021-0431_EN.html

ECtHR: Relinquishment in favour of the Grand Chamber in the case Macate v. Lithuania to examine case on children’s book of LGBT fairy tales

ECtHR: Relinquishment in favour of the Grand Chamber in the case Macate v. Lithuania to examine case on children’s book of LGBT fairy tales

Grand Chamber to examine case on children’s book of LGBT fairy tales
The Chamber of the European Court of Human Rights to which the case Macatë v. Lithuania had been allocated has relinquished jurisdiction in favour of the Grand Chamber of the Court . (link)

The case concerns a book for nine-ten-year-olds written by an openly lesbian children’s author containing six stories based on traditional fairy tales but including characters from marginalised social groups and topics such as emigration and bullying. Two of the six fairy tales contain story lines of romantic relationships and marriages between persons of the same sex. Following a recommendation issued by the Inspectorate of Journalistic Ethics, the book was labelled by the publisher as possibly harmful to children under 14 years of age.

The applicant, author of the book, died but her mother is continuing the proceedings before the ECHR in her place.

USA: Virginia high court stops suspension of anti-transgender teacher

USA: Virginia high court stops suspension of anti-transgender teacher

The Supreme Court of Virginia on Tuesday affirmed an injunction reversing the suspension of a Loudoun County teacher who spoke against the school’s gender policy. Tanner Cross, a gym teacher at a Loudoun County Elementary School, criticized a proposed district policy that would ensure equal treatment of transgender students. Cross declared during a May 25, 2021, school board meeting that he would “not affirm that a biological boy can be a girl and vice versa because it is against [his] religion. It’s lying to a child. It’s abuse to a child. And it’s sinning against [his] God.”

School officials received a negative parent comment regarding Cross’ speech and removed him from his post greeting children in the morning on May 26. Later that day, four more parents emailed the school to voice concerns about Cross’ beliefs. On May 27, school officials placed Cross on administrative leave with pay for engaging in conduct “that had a disruptive impact on the operations of Leesburg Elementary.”

The court ruled that Cross’ speech at the meeting was protected under Article I § 12 of Virginia’s constitution because he spoke on an “issue of social, political, or other interest to a community,” and his interest in making public comments outweighed the school board’s “interest in providing effective and efficient services to the public.” The court asserted that several parent emails did not amount to a significant disruption of the school’s operation.

The court cited a US Court of Appeals for the Seventh Circuit case that clarified that the First Amendment “protects rank-and-file employees from discharge for taking a public stand on how the agency should be managed, [but] it does not protect those who act on their views, to the detriment of the agency’s operations.”

The order implies that, should Cross act on his beliefs in a way that does harm students or the school’s operations in the future, the school could rightfully suspend him. Pending further action by Cross or Loundoun County, the school is temporarily enjoined from suspending Cross.

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India court directs action by government and medical associations to tackle queerphobia in medical curriculum

India court directs action by government and medical associations to tackle queerphobia in medical curriculum

The Madras High Court Tuesday observed that queerphobia is being affirmed in the curriculum of the country’s medical courses, leading to judgement and prejudice against LGBTQIA+ communities.

The court was hearing a petition from a lesbian couple seeking court protection from their relatives who disapproved of their relationship and had filed “missing girl” complaints with the police in order to harass and pressurize the couple. The court had issued guidelines in June prohibiting conversion therapy and mandating the state authorities to ensure the protection of the LGBTQIA+ community. However, compliance remained dismal, which prompted the court to evaluate the reasons underlying stigmatization of the community in society.

As a result, it noted a report submitted by Dr. Trinetra Haldar Gummaraju, which illustrated how the curriculum of undergraduate students of forensic medicine describes “sodomy,” “lesbianism” and oral sex as sexual offences, and “transvestism” (cross-dressing) as a “sexual perversion.” The court raised concerns about queerphobia being legitimised throughout the education of medical professionals:

As important as it is for an advocate or a judge to take up a client’s case or to decide the case, as the case may be without being personally judgemental about them, it is equally or even more important for a professional from the medical and mental health professionals’ fraternity to be non-judgemental and free of moral or personal prejudices about their patient’s or client’s identity on the gender spectrum or their sexuality. Knowledge about a patient’s gender identity and sexuality may be of interest to a doctor, physician and a mental health professional if it is pertinent in cracking the course of treatment, but the course of treatment cannot be one which aims to “cure” their gender identity or sexuality itself.

The court thus directed the Additional Solicitor General to bring these issues to the attention of the National Medical Commission and the Indian Psychiatric Society as well as to direct them to file a report on their proposed future course of action to bring necessary changes in the curriculum.

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Swiss Federal Administrative Court: Refusal of facilitated naturalisation in the case of a registered partnership violates the ECHR’s ban on discrimination (Art. 8 in conjunction with Art. 14 ECHR) – International Law in Switzerland – Professor Andreas R Ziegler

Tribunal administratif fédéral suisse: le refus de la naturalisation facilitée dans le cas d’un partenariat enregistré viole l’interdiction de discrimination de la CEDH (art. 8 en liaison avec l’art. 14 CEDH) — International Law in Switzerland – Professor Andreas R Ziegler

Schweizerisches Bundesverwaltungsgericht: Verweigerung der erleichterten Einbürgerung bei eingetragener Partnerschaft verletzt das Diskriminierungsverbot der EMRK (Art. 8 i.V.m. Art. 14 EMRK) Selon le TAF le fait que le législateur l’a fait en pleine conscience ne justifie tout de même pas d’accorder la primauté à cette règle de du droit interne (“pratique Schubert” car il s’agit d’une […]

Tribunal administratif fédéral suisse: le refus de la naturalisation facilitée dans le cas d’un partenariat enregistré viole l’interdiction de discrimination de la CEDH (art. 8 en liaison avec l’art. 14 CEDH) — International Law in Switzerland – Professor Andreas R Ziegler

USA: Coalition of 20 states file lawsuit to overturn Biden directive on gender identity

USA: Coalition of 20 states file lawsuit to overturn Biden directive on gender identity

Twenty states filed a lawsuit on Monday seeking to overturn Biden administration’s guidance allowing transgender employees and students to use bathrooms and locker rooms corresponding to their gender identity. The plaintiffs, who filed in the US District Court for the Eastern District of Tennessee, are a coalition of GOP-run states. The state of Tennessee is joined by Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and West Virginia.

The conflict arises out of the Equal Employment Opportunity Commission (EEOC) and Department of Education’s (DOE) interpretation of a Supreme Court case. In the case, Bostock v. Clayton County, the court interpreted Title VII of the Civil Rights Act of 1964 as barring employers from firing employees based on their sexuality or gender identity. The DOE and EEOC reasoned that the case called for student and employee protections surrounding gender identity.

The states argue that the DOE’s explanation is not sufficient because Bostock “expressly disclaimed any intent to interpret other federal or state laws that prohibit sex discrimination.” Moreover, the states argue that the EEOC overextended their interpretation of Bostock, entering into an area of the law that the Supreme Court expressly chose not to prejudge. The states view the actions as a usurpation of agency authority, acting in a manner in which only Congress is authorized.

The decision in the case could have broad implications for transgender individuals. If states are successful, Congress would likely need to pass legislation if they wished to protect gender identity rights in all 50 states.

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USA: Virginia School Board to pay transgender student $1.3 million in discrimination case

USA: Virginia School Board to pay transgender student $1.3 million in discrimination case

The Gloucester County School Board agreed to pay $1.3 million on Wednesday, settling a six-year discrimination case against Gavin Grimm, a transgender student who the school refused to let use the boys’ restroom.

American Civil Liberties Union (ACLU) representing Grimm filed a lawsuit in 2015 after the student, who was a sophomore at the time was refused to use the boys’ restroom and was directed to use “appropriate private facilities.” Despite undergoing hormone therapy and his birth certificate reflecting that he is male, the stance of the school board stood.

Held in the District Court and Court of Appeals, the school board was found to have violated Title IX  of the Education Amendment of 1972, in enacting the school policy prohibiting any child “with gender identity issues” from using shared bathrooms with other boys and girls.

Working up through the lower courts, the US Court of Appeals for the 4th Circuit, affirmed lower court decisions in August 2020; that the treatment of the School Board against Grimm was a violation of his constitutional rights. Whilst the Supreme Court chose not to take the case, the school board agreed not to oppose the lower court decision, thus awarding the case the Grimm. The School Board confirmed that the money paid to Grimm will cover attorney fees and any costs associated with the discrimination.

In a press statement, the director of ACLU, Virginia said:

“Discrimination has no place in Virginia schools, and Virginia taxpayers should not be forced to foot the bill for school boards who act in disregard for the law.”

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Prix Maurice Chalumeau

Prix Maurice Chalumeau

Le Prix junior Maurice Chalumeau est destiné aux mémoires de master ayant été évalué dans l’une des trois universités du «Triangle Azur» (UNIGE, UNIL, UNINE).

Le Prix senior Maurice Chalumeau est destiné aux thèses ayant été soutenues auprès d’une université ou haute école suisse.

Le délai de dépôt de candidature est fixé au 1er septembre 2021.

Le délai de dépôt de candidature est fixé au 1er septembre 2021.

LINKS

Voir: http://www.unige.ch/cmcss