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).GIESC). Hopefully, it will make it easier to find correct legal information about the developments in all regions of the world and, in particular international law.
USA: Federal appeals court rules adopted children not ‘legitimated’ for immigration purposes
The US Court of Appeals for the Tenth Circuit ruled Tuesday that an adoptive, nonbiological child is not a “legitimated” child under the Immigration and Nationality Act (INA).
Rejecting the plaintiff’s arguments, the court created a per se rule that nonbiological children cannot be “legitimated” under the INA and rejected the plaintiff’s claim of gender discrimination, which the plaintiff failed to raise with the Board of Immigration appeals:
Accordingly, we must now decide whether the Board of Immigration Appeals (“BIA”)—that is, the federal agency charged with ultimately interpreting the Act—erred in ruling that, because it is implicit in the concept of legitimation that a parent may legitimate only his biological children, the Act need not and does not look to state law to see whether parents may legitimate someone other than their biological children. Like the district court, we determine that the BIA correctly interpreted the Act’s plain meaning and, thus, did not err in ruling that a parent’s non-biological child may not be his “legitimated” child within the meaning of the Act. We also hold that the district court did not violate the Supreme Court’s rule in Darby v. Cisneros … when it declined to entertain the gender-discrimination challenge of plaintiff-appellant Lieutenant Colonel Patrick Schreiber … to the BIA’s interpretation of the Act because he failed to exhaust this argument in his purportedly optional appeal to the BIA.
The case concerned the plaintiff, Lieutenant Colonel Patrick Schreiber, who sought to obtain lawful residency for his 17-year-old adoptive daughter. The INA allows for an adoptive child to obtain lawful residency in the US if the child was adopted while under the age of 16. However, the INA allows residency for “legitimated” children under the age of 18. Because Schreiber’s daughter did not fit the adoptive child requirement, Schreiber sought instead to “legitimate” his adoptive daughter to allow her to obtain residency via the “legitimated” child exception.
Additionally, Schreiber claimed that the INA “legitimated” child exception discriminates against men, because the INA provides that “gestational mothers may legitimate their non-genetically-related children, to whom they gave birth after using assisted reproductive technology.” However, the court could not consider this argument, as Schreiber failed to raise the argument to the BIA.
Schreiber has yet to indicate whether he will appeal.
The application by Lezbijska Grupa Kontra is an LGBT-related case – the applicant is an LGBT human rights organization – whilst the application by Dario Krešić is not.
The application made by Lezbijska Grupa Kontra concerns the right of access to the Supreme Court of Croatia in a non-discrimination case and the overall fairness of it proceedings.
The application concerns the Prevention of Discrimination Act (Zakon o suzbijanjudiskriminacije, Official Gazette no. 85/2008) which provides for an appeal of points of law with the Supreme Court in all cases concerning allegations of discrimination.
The factsLezbijska Grupa Kontra, an association involved in the promotion and protection of LGBT rights, lodged a class action against a religion teacher of an elementary school, because she had allegedly told the children during class that homosexuality was “an illness”. After the first- and second‑instance courts rejected Lezbijska Grupa Kontra’s claim, the Supreme Court declared its subsequent appeal on points of law inadmissible, although the relevant legislation always allowed an appeal on points of law in non‑discrimination cases. Complaint to the Court Lezbijska Grupa Kontra complains, under Article 6, taken alone and in conjunction with Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, about the unfairness of the domestic proceedings, including the Supreme Court’s allegedly arbitrary rejection of its appeal on points of law. Questions to the Parties The Court has asked the parties the following questions: 1. Has there been a breach of Article 6 § 1 of the Convention on account of the Supreme Court’s decision to declare inadmissible the applicant’s appeal on point of law? In particular:
a) was that decision arbitrary, unforeseeable or excessively formalistic so as to unduly restrict the applicant’s access to court; and/or
b) was it the consequence of the Supreme Court’s inconsistent practice on the matter, in breach of the principle of legal certainty (cf. Supreme Court judgment Rev-1003/2012-2 and Rev-3235/2014)?
2. In the negative, did the applicant have a fair hearing in the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular:
a) was the principle of equality of arms respected as regards the failure of the first-instance court to hear witnesses proposed by the applicant; and
b) has the hearing in the present case complied with the requirements of publicity?
3. Was the length of the civil proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
4. Has the applicant suffered discrimination, contrary to Article 14 of the Convention read in conjunction with Article 6 and/or Article 1 of Protocol No. 12? In particular, was the manner in which the domestic proceedings were conducted the consequence of discriminatory attitudes towards the LGBT community?
USA: Transgender woman files second lawsuit against Georgia Department of Corrections for sexual assault
Five years after her initial lawsuit, which led to the US Department of Justice (DOJ) declaring that prison officials must treat gender dysphoria, Ashley Diamond, a transgender woman, brought suit against the Georgia Department of Corrections (GDC) Monday.
According to the complaint, Ashley “is once again trying to survive brutal and unrelenting abuse and mistreatment as a result of [the GDC’s] actions and omissions.” Her initial abuse ended after she was released from the GDC to parole in August 2015. However, a recent parole violation has led her to be sexually victimized in the custody of GDC once again. Defendants named in the suit include Georgia Statewide Mental Health Director Javel Jackson, Medical Director of the GDC Sharon Lewis, Prison Rape Elimination Act Coordinator Grace Atchison, and GDC Commissioner Timothy Ward.
Diamond sent seven letters and two emails regarding constitutional violations between May 1 and November 6, 2020, “repeatedly notif[ying] Defendants of the serial sexual assaults, abuses, and suffering Ms. Diamond was experiencing,” which did not lead to any meaningful intervention. Diamond has been sexually assaulted 14 times while in GDC custody, eight of these instances during her current housing arrangement. Additionally, the GDC refuses to house her in a women’s prison, and she cannot access any safe housing aside from solitary confinement. Diamond’s complaint argues that the sexual assault of transgender women in prison is foreseeable, and that the GDC failed to mitigate this risk, in spite of their knowledge of its existence.
In addition to failing to intervene in the sexual assaults, the GDC has refused Diamond treatment for her gender dysphoria, which has led to instances of attempted self-castration, suicide attempts, anxiety, and depression. Following the 2015 case, “[t]he abuse and neglect that Ms. Diamond has experienced are all the more egregious because Defendants have willfully ignored a prior judicial finding that the very same conduct Defendants repeat qualifies as cruel and unusual punishment under the Eighth Amendment and a violation of clearly established constitutional rights.”
Diamond’s placement in the men’s prison has separated her “from similarly situated cisgender women (i.e., non-transgender women) who are housed in women’s facilities and therefore shielded from sexual predation from incarcerated cisgender men.”
Diamond’s case will take place during a continued investigation by the DOJ into Georgia’s mistreatment of LGBTQ+ individuals in the prison system.
The Constitutional Court has announced judgment on the right of a same-sex couple to a parental leave November 12.
Constitutional Court had received an appeal from a mother whose female partner was unable to receive the ten-day leave which, according to Labor Act, is to be granted to the child’s father. The applicant said that this was contrary to the best interests of the child, since it did not allow the person to provide physical and emotional support to his or her partner and her child.
According to the applicant, Article 110 of the Constitution is infringed, which stipulates that the legislator has an obligation to provide protection for all families. But the Saeima considered that the rule was in line with the Constitution.
On the other hand, the Constitutional Court, in a judgment read on 1 November, acknowledged that the provision of the Labor Act, in so far as it does not provide protection and support for the mother’s partner due to the birth of the child, does not comply with the first sentence of Section 110 of the Constitution.
According to the Court judgment, it shall be deemed null and void as from 1 June 2022. The exception is the family who appealed the relevant provision of the Labor Act – regarding them, it is deemed to be invalid from the time of the infringement of their fundamental rights.
The judgment shall not be appealed.
The Court said that the Constitution sets the state’s obligation to protect the family of same-sex partners as well.
The Court stressed that, in the case of legal relations concerning a child, his or her interests and rights are priority. As far as possible, the country should ensure that the child is grown up in a family environment. And the legislation needs to make sure that regulation is in the best interests of children.
The Constitution requires the law to ensure the legal protection of every family, the Court pointed out. The Court acknowledged that a number of existing regulatory mechanisms could also be extended to same-sex partners. However, the right to exercise this option cannot be regarded as a legal framework for same-sex partnerships.
Former Canadian Supreme Court Justice publishes report on RCMP’s toxic, misogynistic and homophobic culture
Former Canadian Supreme Court Justice Michel Bastarache released a report on Thursday, detailing the toxic, misogynistic and homophobic culture of the Royal Canadian Mounted Police (RCMP).
After conducting interviews with members of the RCMP, Bastarache noted that the RCMP environment was heavily sexualized. Many women were victims of degrading expressions, discriminatory comments and unwanted sexual touching. Similarly, women who identified as LGBTQ2S+ were ostracized and outed to other members without consent. As a result of such conduct, many women were diagnosed with physiological injuries such as Major Depressive Disorder, Post-Traumatic Stress Disorder, and Generalized Anxiety Disorder.
Bastarache noted that a number of factors contributed to the toxicity of the RCMP including training techniques, systemic barriers, maternity and parental leave and employment flexibility, the grievances and discipline process, leadership, and promotions. In the report, Bastarache offers suggested changes to these factors that he believes will help change the culture of the RCMP for the better. For example, an independent study should be conducted to identify all the systemic barriers preventing women from succeeding in the RCMP and specify how those barriers could be removed. Similarly, “rigorous blind process” should be used for promotions, excluding information about the candidates gender or race.
Bastarache further stated:
I have concluded, based on everything I was told over the past 3 years, that the culture of the RCMP toxic and tolerates misogyny and homophobia at all ranks and in all provinces and territories. This culture does not reflect the stated values of the RCMP, and it is found throughout the organization. RCMP members and officers are forced to accept that they must function in the context of this culture to succeed. RCMP employees appear to blame the “bad apples” without recognizing the systemic and internal origins of this conduct.
Bastarache indicated that efforts to fix the negative culture of the RCMP “independent external pressure” must be applied. Attempts to fix the culture from within the RCMP has failed multiple times before and has resulted in “the cultural biases and prejudices that existed within the organization “ today. He further stated that, “it is my belie the time has come for the Government of Canada to ask some hard questions about the structure and governance of federal policing.”