Interesting Article: Human Rights Bodies’ Adjudication of Trans People’s Rights: Shifting the Narrative from the Right to Private Life to Cruel and Inhuman or Degrading Treatment
Matteo E. Bassetti, Human Rights Bodies’ Adjudication of Trans People’s Rights: Shifting the Narrative from the Right to Private Life to Cruel and Inhuman or Degrading Treatment (European Journal of Legal Studies, Vol. 12, no. 2, pp. 291-325, November 2020)
New Zealand to strengthen hate speech laws following Christchurch terror attack report
The New Zealand government is set to strengthen the country’s hate speech and counter-terrorism laws following the release Monday of a Royal Commission of Inquiry’s report on the March 2019 Christchurch terror attack.
The commission was tasked in March 2019 with investigating the terror attack at a Christchurch mosque, which resulted in 51 fatalities. The victims’ families and the survivors were “at the heart of [the] inquiry”.
The report made 44 recommendations. In a statement to Parliament on Tuesday, the country’s Prime Minister Jacinda Ardern said the government has accepted all recommendations “in principle.” These include reframing the country’s hate speech laws by repealing section 131 of the Human Rights Act 1993. Instead, it recommended criminalizing “hate-motivated offending” under the the country’s key criminal law code, the Crimes Act 1961, amending the Summary Offences Act 1981 and updating the definition of “objectionable” in section 3 of the Films, Videos, and Publications Classification Act 1993 to include “racial superiority, racial hatred and racial discrimination.” This would provide greater certainty to the country’s hate speech legal landscape by making it illegal to “[stir] up or [provoke] hatred against a group of persons defined by protected characteristics, which should include religious affiliation.” According to the report this change “reflect[s] the seriousness of the offences and increase[s] the resulting penalty.”
In her statement, Ardern said one of the government’s immediate responses to the recommendations will be to “work with parties across Parliament on the gaps in hate speech legislation.”
The report also recommended establishing by law a new national intelligence and security agency to “deliver a more systematic approach to addressing extremism and preventing, detecting and responding to current and emerging threats of violent extremism and terrorism” and steward national security laws, especially the Intelligence and Security Act 2017 and Terrorism Suppression Act 2002 (the Terrorism Act).
Moreover, the report criticized the Terrorism Act for failing to criminalize “activities that are preliminary to acts of terrorism” and that the terrorism offences provided for in the Terrorism Act “do not apply to the activities of lone actor terrorists,” such as the perpetrator in the Christchurch attack. Noting that the Terrorism Act’s fitness for purpose has not been reviewed in the almost two decades since its introduction, the report recommended that legislation provide for it to be regularly reviewed, “say every five years,” and that all other counter-terrorism laws “be reviewed and updated.” Ardern commented that the recommendation to improve counter-terrorism laws “was something the Government had started work on prior to March 15” and that it “will now bring those amendments to the House.”
Ardern named Andrew Little as the minister responsible for coordinating the government’s continued response to the inquiry’s recommendations.
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USA: Supreme Court declines to hear challenge to transgender student bathroom policy
The US Supreme Court on Monday declined to hear an appeal in Parents for Privacy v. Barr, letting stand a lower court ruling that allows transgender students to use the bathroom of their choice stand.
An Oregon District Court refused to block the school district’s policy and the US Court of Appeals for the Ninth Circuit upheld that ruling. The Court of Appeals noted that the policy does not violate students’ constitutional rights, nor does it violate educational sex discrimination laws.
The lawsuit was first filed by parents in Dallas School District in 2017. The policy allowed a transgender boy to use the boys’ bathrooms and locker rooms. The parents alleged that accommodating the transgender student violates the civil rights of the non-transgender students who must share the facilities.
The parents’ complaint alleged improper rule-making procedure under the Administrative Procedure Act, violations of the fundamental right to privacy and parents’ fundamental right to control the upbringing of their children under the Fourteenth Amendment, violation of Title IX, violation of the Religious Freedom Restoration Act, violation of the First Amendment, public accommodation discrimination and discrimination in education.
The ACLU of Oregon, which was involved in the litigation, stated, “the decision not to take this case is an important and powerful message to trans and non-binary youth that they deserve to share space with and enjoy the benefits of school alongside their non-transgender peers.” According to the ACLU, courts have been rejecting cases like these to protect the rights of transgender students across the country. In May 2019, the Supreme Court declined to hear a similar case as well.
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ECtHR: Failure to protect LGBT people at “Coming Out Day” event in Russia violates the ECHR
Posted: 01 Dec 2020 03:03 PM PST (c) Paul Johnson: http://feedproxy.google.com/~r/EchrSexualOrientationBlog/~3/JLbbXsN1ejs/failure-to-protect-lgbt-people-at.html?utm_source=feedburner&utm_medium=email
The Third Section of the European Court of Human Rights has issued its judgment in Berkman v Russia. The case concerns the failure of police officers to ensure that an LGBTI event disrupted by counter-demonstrators proceeded peacefully, and the unlawful arrest of the applicant, Ms Berkman, at the event.
The facts
On 27 September 2013 a group of LGBTI rights activists informed the St Petersburg authorities of their intention to hold a meeting to mark Coming Out Day on 12 October 2013 at the Field of Mars, a large square in the city centre. About 150 people were expected to attend the event.
On 30 September 2013 the authorities forwarded the information about the upcoming event to the police and reminded the organisers of the meeting that they would be held liable under domestic law for inciting hatred and enmity on account of ethnicity, language, origin and religious beliefs or for promoting “non-traditional” sexual relationships to minors.
The police deployed around 540 police officers, including officers from special-purpose units, to ensure public order during the meeting. It appears that the enhanced security was ordered in the light of anticipated clashes with counter-demonstrators.
At about 1 p.m. on the day of the event Ms Berkman arrived at the site to take part in the preparation of the meeting. According to her, the participants (about 20 or 30 people) were unable to gather, because the place was blocked by more than 100 aggressive counter-demonstrators. Many of them were in national costumes and armed with whips. They insulted the participants in the meeting, and pushed and punched them.
The counter‑demonstrators surrounded the Coming Out Day participants, including Ms Berkman, and followed them. The participants asked for help from the police officers, but the police officers did not react. The police officers stepped in only later, when counter-demonstrators insulted the police officers personally.
The police officers arrested several counter-demonstrators, took them to a police bus parked nearby and then released them. The released counter‑demonstrators continued their verbal attacks and physical pressure on the LGBTI activists.
At 1.55 p.m. police officers surrounded a group of twelve demonstrators, including Ms Berkman, and stated that they had breached public order by using foul language in a public place. Then the officers ordered them to proceed to a police bus and took them to central police station no. 28 in St Petersburg.
Ms Berkman was detained at the police station from 2.30 p.m. to around 6.30 p.m.
The Court that subsequently dealt with Ms Berkman case – the Dzerzhinskiy District Court of St Petersburg – terminated administrative proceedings against her on 8 November 2013 for lack of evidence of her guilt.
Domestic proceedings against the police
Ms Berkman lodged a civil claim with the Vasileostrovskoiy District Court of St Petersburg against the domestic authorities. She challenged the lawfulness of her arrest and detention at the police station. Later, on an unspecified date, she extended her claim, alleging that the authorities had failed to ensure the personal safety of the participants in the public meeting of 12 October 2013.
Several iterations of these claims in the domestic courts, including the Supreme Court of Russia, failed.
Complaints to the Court
Ms Berkman, relying on Article 5 § 1 of the Convention, claimed that her administrative arrest and subsequent detention at the police station had been arbitrary and unlawful.
She further complained, relying on Article 11 taken alone and in conjunction with Article 14 of the Convention, that the domestic authorities had failed to enable the public meeting marking Coming Out Day to proceed peacefully.
Ms Berkman further complained, under Article 14 taken in conjunction with Article 5 § 1 of the Convention, that she had been arrested on the grounds of her views in support of LGBTI people.
The Article 11 and Article 14 complaints
Failure of the police to facilitate the event
The Court was satisfied that the St Petersburg authorities did not ban the public meeting in support of the LGBTI community, where Ms Berkman intended to participate and that, being aware of the risks associated with the event, they dispatched considerable number of police officers to the scene of the demonstration.
The Court noted the “passive conduct of the police officers” and “that they did not consider it necessary to facilitate the meeting” (§ 53).
The Court stated that it was “unsatisfied with such [an] approach” and reiterated that “participants must […] be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents” (§ 54). “Genuine, effective freedom of peaceful assembly”, the Court said, “cannot, therefore, be reduced to a mere duty on the part of the State not to interfere” (§ 54).
In respect of the positive obligations of the state, the Court said these should be assessed in the light of the subject matter of the assembly. The Court said such positive obligations “were of paramount importance in the present case, because the applicant as well as other participants in Coming Out Day belonged to a minority” (§ 55). “They held views that were unpopular in Russia”, the Court said, “and therefore were vulnerable to victimisation” (§ 55).
The Court concluded that the authorities failed to duly facilitate the conduct of the planned event by restraining homophobic verbal attacks and physical pressure by counter-demonstrators.
The Court stated: “As a result of the passive attitude of the police authorities, the participants of the event fighting against discrimination on the grounds of sexual orientation became themselves the victims of homophobic attacks which the authorities did not prevent or adequately manage” (§ 57).
On this basis, the Court considered that the domestic authorities failed to comply with their positive obligations under Article 11 of the Convention, taken alone and in conjunction with Article 14.
The arrest of Ms Berkman
The Court observed that police officers arrested Ms Berkman and other participants of the meeting on the grounds of the alleged use of foul language. In preventing Ms Berkman’s participation in the event, this action of the police amounted to an interference with her rights enshrined by Article 11 of the Convention.
The Court regarded Ms Berkman’s arrest to fall short of being lawful (on account of a lack of reasons and legal grounds for her arrest) and, accordingly, the interference in question was unlawful.
Moreover, given Ms Berkman’s conduct was clearly of a non-violent nature, the Court considered that the reasons relied upon by the domestic authorities for the arrest were insufficient to justify that she was prevented from continuing to participate in the event.
The Court therefore concluded that there had been a violation of the State’s negative obligations under Article 11 of the Convention taken alone.
However, the Court stated that it could not “find it established that the police officers arrested only the participants of the public event and disregarded the breaches of public order by their opponents” (§ 63).
On this basis, the Court stated that it could not conclude that the interference in question affected Ms Berkman’s rights guaranteed by Article 14 of the Convention and, as such, that there had been no violation of Article 14 taken in conjunction with the negative obligations under Article 11 of the Convention.
The Article 5 § 1 complaint
The Court dealt with this very briefly.
It noted that Ms Berkman was deprived of her liberty within the meaning of Article 5 § 1 of the Convention from about 1.55 p.m. until 6 p.m. on 12 October 2013.
According to Ms Berkman’s arrest record, she was taken to the police station for the purpose of drawing up an administrative-offence report.
The Court observed that domestic law provided that a suspected offender may be brought to a police station for the purpose of drawing up an administrative-offence report only if such a report could not be drawn up at the place where the offence was detected.
The Government, however, had not argued that in Ms Berkman’s case drawing up such a report at the site of the protest was impossible. Moreover, the domestic authorities had never assessed in a meaningful manner the necessity of the applicant’s transfer to the police station.
On this basis, the Court found a breach of the applicant’s right to liberty on account of a lack of reasons and legal grounds for her arrest and, as such, a violation of Article 5 § 1 of the Convention.
Other complaints that the Court considered it was not necessary to examine
The Court did not consider it necessary to examine the merits of Ms Berkman’s complaint under Article 5 § 1 of the Convention concerning her delayed release from the police station.
The Court also considered that there was no need to examine separately the merits of the complaint under Article 14 taken in conjunction with Article 5 § 1 of the Convention that Ms Berkman had been arrested on the grounds of her views in support of LGBTI people.
Comment
This judgment is a further reiteration of the Court’s now established principle that domestic authorities are under a positive obligation to ensure that LGBT+ people can exercise their right to freedom of peaceful assembly in circumstances free from homophobic hatred.
Police officers must not be “passive” in the face of conflict between LGBT+ people and homophobic protestors, but must actively facilitate the freedom of peaceful assembly of LGBT+ people.
As the Court said, police passivity results in those people who are fighting against discrimination on the grounds of sexual orientation themselves becoming the victims of homophobic attacks.
In the context of Russia, the judgment further highlights the risks to LGBT+ people, the failure of the state to protect them, and the ongoing relevance of the Convention system for redress. Of course, the ongoing failure of the Russian government to execute the Court’s LGBT-related judgments is a significant problem. For the Convention system to work, political pressure is needed by the bodies of the Council of Europe to ensure that Russia takes action to be compliant with the Convention.
One intriguing aspect of this judgment is that the Court was prepared to find a violation of Article 14 (prohibition on discrimination) in respect of the failure of the police to facilitate the event, but not in respect of Ms Berkman’s arrest. Clearly, in respect of the public event, the Court was satisfied that Ms Berkman was made the victim of homophobic attacks because of a failure of the police and, therefore, the violation of positive obligations under Article 11 had a discriminatory element. But the Court was not satisfied that Ms Berkman had been arrested for discriminatory reasons – that is, on grounds of sexual orientation. The key issue for the Court was that it could not find any evidence that the police officers had only arrested the participants of the LGBTI event or disregarded the breaches of public order by their opponents. On this basis, the Court would not find a discriminatory element to the negative violation of Article 11. It does appear that the Court assessed video and other materials to reach this conclusion.
Generally, this is a very positive judgment that strengthens the Court’s jurisprudence on the freedom of peaceful assembly of LGBT+ people.
Hong Kong Court decides a man may war his hair long if women were allowed to do so (Gender Stereotyping)
The Hong Kong Court of Final Appeal was persuaded not to follow the England and Wales Court of Appeal: Smith v. Safeway plc (1996; female employee could wear her hair in a pony-tail but male employee could not; no sex discrimination).
The Court thus pave the way for a man’s right to wear a skirt or dress or lipstick if he wants to! And to a woman’s right to wear anything a man can wear!
https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=132118,
[2020] HKCFA 37
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 8 OF 2019 (CIVIL)
(ON APPEAL FROM CACV NO. 34 OF 2017)
________________________
| BETWEEN | ||
| LEUNG KWOK HUNG | Appellant | |
| also known as “LONG HAIR” | ||
| and | ||
| COMMISSIONER OF | Respondent | |
| CORRECTIONAL SERVICES |
________________________
| Before: | Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Chan NPJ and Lord Collins of Mapesbury NPJ |
| Date of Hearing: | 28 October 2020 |
| Date of Judgment: | 27 November 2020 |
29. However, care needs to be taken when adopting the package approach to ensure that it does not become an exercise of merely comparing features applicable to the complainant with separate features belonging to the compared person and then asking whether overall, the two persons have been treated equally. The approach in discrimination cases is not a “tit for tat” or “swings and roundabouts” approach. As has been said [David Pannick: Sex Discrimination Law (1985)],[41] “In deciding whether a woman who is prevented from wearing trousers to work is being less favourably treated on the ground of her sex than a comparable man, courts and tribunals should be wary of arguments which seek to balance the fact that a woman is denied opportunity X with the fact that men are denied opportunity Y”. This passage was referred to in the [1997 Modern Law Review] article by Robert Winte[m]ute Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes[42] who says this: “Sex distinctions applying to different choices cannot be lumped together and their net effect examined. Courts must look instead at their effect on the ability of individuals to make each specific choice. For the woman who wants badminton at the same price as a man, free swimming is no consolation. For the man who wants to wear a pony‑tail or a skirt, it is no consolation that women are prohibited from wearing short hair or trousers.” …
On 30 October, the Czech government adopted Government Decree n. 1113 which lifts the ban on the freedom of movement for the purposes of a wedding but not for the purposes of registration of same-sex partnership. While the only restriction on weddings pertains to number of guests, same-sex couples can only register their partnership in the case of urgency. Since same-sex couples do not have the right to marry in the Czech Republic, this Decree is directly discriminatory.
Read more on a letter from the EU Parliament’s LGBTI Intergroup.
On 16 November, the European Network of Equality Bodies (Equinet) published their new discussion paper with an insight on challenges faced as well as activities carried out by equality bodies to support trans and intersex persons in the context of discrimination. Following up on this report, ILGA-Europe, TGEU and OII Europe are collaborating with Equinet on a seminar to strengthen the capacity of equality bodies and national activists to work together on the protections of the rights of trans and intersex people, to take place in December 2020.
Romania Constitutional Court rules gender studies ban unconstitutional
In a majority decision, the Constitutional Court of Romania has struck down a legislative amendment that effectively banned the subject of gender studies in university education as unconstitutional.
Article 7(1)(e) of the impugned amendment was introduced earlier this year to amend Article 7 of the National Education Law No. 1/2011. The amendment prohibited any discussion in educational institutions of the “gender identity theory,” which it described as any “theory or opinion that [suggests] gender [as] a concept that is different than the biological sex”. Therefore, the provision was aimed at banning any discourse suggesting “gender” (now widely accepted to be a social construct) as different from “biological sex.”
The bill was approved by the Romanian parliament in June. Human rights organizations condemned the bill as discriminatory and violative of the Romanian Constitution as well as various international commitments including freedom of thought and expression and the right to education. It was especially seen as catastrophic for transgender and gender-diverse persons, since it pressed for denial of gender as distinct from a person’s biological sex. The bill, if passed, would have erased gender studies from the curriculum and would have prevented social workers, counselors and NGOs from discussing gender identity issues and extending support to transgender persons.
In response to growing criticism, the bill was subsequently challenged by President Klaus Iohannis at the top court, which gave its ruling on Wednesday.
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Swiss parliament approves marriage equality bill
Switzerland’s parliament approved a bill Friday that would allow same-sex couples to marry.
The National Council, the lower house of Parliament, voted by 136 in favor to 48 against, with 16 members abstaining or otherwise voting present. The Council of States, the upper house, voted 24 to 11 in favor of the bill, with 11 not voting or abstaining. The bill was first introduced seven years ago and has gone through several rounds of debate and votes before this final approval.
Switzerland had previously allowed registered partnerships between same-sex couples, but that status did not provide the same rights that marriage provides. The bill approved on Friday also provides that both members of a lesbian couple who have a child through sperm donation will be considered parents of that child.
The conservative Christian Federal Democratic Union party announced after the vote that it would seek to have the bill put to a popular referendum. However, a recent survey shows 82% of Swiss people are in favor of extending marriage rights to same-sex couples, making a referendum unlikely to overturn the parliamentary vote.
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Hungary parliament passes bill defining families, curtailing rights of gay citizens
The Hungarian National Assembly, the country’s parliament, passed a bill amending the Hungarian Fundamental Law on Tuesday, which stipulates that a mother is a woman and a father is a man.
The bill, which is “intended to strengthen the protection of Hungarian families” and protect children, protects individuals’ rights to self-identify “according to their sex at birth.” The bill states that children will have upbringings based on the values of Hungary’s “constitutional identity and Christian culture.”
Section L, paragraph one of the amended Fundamental Law states: “Hungary protects the institution of marriage as the association between a man and a woman and the family as the basis for the survival of the nation. The foundation of the family is marriage and the parent-child relationship. The mother is a woman, the father is a man.”
The amendment also defined public money as “the revenues, expenditures and claims of the state.” This definition of public money was adopted for transparency, although critics claim that the amendment will loosen independent bodies’ oversight of government spending.
The amendment, which is the ninth amendment to Hungary’s constitution, was originally submitted on November 10. On Tuesday, 134 Members of Parliament voted for the bill, and five voted against it.
While the amendment goes into effect following its promulgation, the rules related to it only go into effect on July 1, 2023.
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International and Comparative SOGIESC Law - Professor Andreas R Ziegler 