LGBTI Victories in the Caribbean and a Turning Point for LGBTI Rights in the Americas

By Ari Shaw in Global Americans – January 25, 2023

At the end of 2022, LGBTI activists in Barbados achieved a stunning victory: the High Court of Barbados ruled that the criminalization of consensual same-sex intimacy is unconstitutional. Like many former British colonies, Barbados inherited penal codes with proscriptions against “buggery” and other vaguely defined acts that had been used to directly target LGBTI people. The Barbados Sexual Offences Act of 1992 imposed sentences of up to life in prison if convicted. While many of these laws on the books are selectively enforced, they are nevertheless dangerous and stigmatizing signals of disapproval that can lead to violence and discrimination against LGBTI people.

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Kenya Supreme Court declares discrimination of persons based on sexual orientation unconstitutional

The Supreme Court of Kenya Friday declared discrimination against the LGBTQ community unconstitutional and affirmed their right to association after a 10-year legal battle. In a 3-2 majority decision, the court ruled that article 27 of Kenya’s Constitution—which protects every person from discrimination with an open-ended list of grounds—protects sexual minorities as well.

The court said:

…[a]n interpretation of non-discrimination which excludes people based on their sexual orientation would conflict with the principles of human dignity, inclusiveness, equality, human rights and non-discrimination. To put it another way, to allow discrimination based on sexual orientation would be counter to [the] constitutional principles.

Through a wider interpretation of the term “sex” under article 27, the court declared that sex should not be interpreted in the strict sense. The majority decision stated:

…[t]he use of the word “sex” under Article 27(4) does not connote the act of sex per se but refers to the sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise. Further we find that the word “including” under the same article is not exhaustive, but only illustrative and would also comprise “freedom from discrimination based on a person’s sexual orientation.”

Justices Ibrahim and Ouko (dissenting) took issue with the majority decision by stating that if Kenyans wished to include “sexual orientation” under article 27, they would have done so during the drafting of the constitution in 2010. This decision comes at a time when there is agitation for a “third wave of criminalization of homosexual” through anti-sodomy laws in Africa. For instance, a member of parliament has written to parliament communicating his intention to table a bill prohibiting homosexuality and the promotion thereof.

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On 2 February 2023, the Hungarian Constitutional Court ( CC) published its long-awaited decision on legal gender recognition

Author/Source: Eszter Polgári on https://verfassungsblog.de/ignorance-and-evil/

On 2 February 2023, the Hungarian Constitutional Court ( CC) published its long-awaited decision on legal gender recognition. Upon a petition submitted by a judge in a case pending before her, the CC for the first time reviewed the provisions introduced into the Act on Registry Procedure (RPA) in late May 2020 requiring the registration of the sex at birth (instead of sex) and banning any modification to that registry entry. The CC held that since the concept of sex at birth is contained in the Fundamental Law, its mandatory and unalterable registration does not constitute a violation of human dignity and the right to respect for private life. With this decision, the CC chose to remain concordant with the perceived political expectations, blatantly served the interest of the government majority, and echoed their fixation of biologically determined sex.

Legal gender recognition for trans and intersex people in Hungary

Legal gender recognition for trans and intersex people in Hungary has never been properly regulated. Despite this, between the early 2000s and 2018, trans and intersex people could change the gender marker and their name in official documents. Since 2014, certain procedural details were regulated in the ministerial decree on civil status registries, but the legislation did not provide answers to such basic questions as who and under what conditions could apply for legal gender recognition, what medical expert opinions are needed, and who decides on their acceptability.

To settle the dispute among public bodies involved in the procedure, and as the first step of a series of anti-LGBTQI legislative measures, the government submitted an omnibus bill to Parliament on 31 March 2020. Section 33 of the bill banned legal gender recognition: it amended the RPA, and mandated recording of “sex at birth” instead of “sex” in the birth registry. Sex at birth is defined as “the biological sex based on primary sex characteristics and chromosomes”. Additionally, a paragraph was included explicitly declaring that once recorded, “sex at birth” cannot be amended, and that given names have to correspond to “sex at birth”. Hungarian given names are gendered and ought to be chosen from authorized lists for male and female names.

In March 2021, the CC declared that the new rules cannot be applied retroactively, however, it tackled the overall constitutionality of Section 33 only in the case discussed below. While the CC had a constitutional deadline of 90 days to decide the case, it took the Court 585 days to deliver its decision.

The petition – as it should look

The petition submitted by a judge in an individual case concerning the rejection of legal gender recognition based on Section 33 presented a rights-based argumentation: while the legislature declared that the biologically determined sex at birth is a relevant personal identifier, the petitioner reminded the CC that both its own case-law and that of the European Court of Human Rights acknowledged the right of transgender persons to be recognized by the state based on their gender identity and not their biological sex. Prior to Section 33, the CC has not directly addressed the issue of legal gender recognition as such, but it did mention the right of transgender people to change their name as fundamental in a broader decision on spousal names, and it found that trans people legally residing in Hungary should also be able to change their names. The petitioner judge based the constitutional challenge on two pillars: Article II and Article VI (1) of the Fundamental Law (human dignity and right to respect for private life, respectively). The plaintiff in the underlying case – a client of Háttér Society – does not identify with his sex registered at birth, his request for legal gender recognition was supported by the opinion of a psychologist and a psychiatrist. However, as a result of Section 33, he was unable to change his gender marker in the birth registry (and consequently his name) to his social reality.

The petition recalled that the CC had already recognized the right of transgender people to change their name and gender marker as a fundamental right; the CC understood it as an aspect of human dignity. The petition further claimed that both Article VI (1) of the Fundamental Law and Article 8 of the European Convention on Human Rights are relevant when examining the plaintiff’s right to have his gender marker changed. The petition importantly underlined: the European Court of Human Rights (ECtHR) had consistently held that states have a positive obligation to create and maintain an effective and accessible procedure with clearly identified criteria that allow for the legal gender recognition of trans people. As the question affects the most intimate aspect for private life, states enjoy a limited margin of appreciation and cannot – for instance – condition legal gender recognition on having undergone gender affirming medical interventions.

The decision – how to avoid a rights-based approach?

Despite being served the arguments on a silver platter, the CC chose a strikingly different line of reasoning. First, it limited the admissibility of the case to the issues raised with respect to recording sex at birth in the registry (not addressing the question of name change, since the judge did not specifically invoke those provisions of RPA). Second, the CC reviewed “the legal environment” of the challenged provisions. It endorsed without any critical reflection the explanatory memorandum attached to Section 33: that sex at birth recorded in the registry only declares a fact established by a medical doctor. The decision creates a weak, unsubstantiated, and self-contradicting rationale for the need to introduce a new identifier into the system: “The registry proves the registered facts, rights until the opposite is proven, thus it does not create rights. However, based on the sex declared in the registry, rights and duties may emerge, thus it is necessary to define sex at birth.” (24) The CC recognizes that there are people whose gender identity is different from their sex at birth (even though the CC seems to conflate gender identity with having undergone gender affirming medical interventions (e.g., 50)), and that the registration at birth might limit their right to self-determination. However, it arrives at the conclusion that while there are compelling reasons to record sex at birth, there is no similar compelling reason to record one’s gender identity. This – it claims – means that “the state does not take sides when it comes to its citizens’ gender identity” (24).

The CC considers the compatibility of the impugned provisions – in line with the petition – with human dignity, the right to self-determination and the right to private life. While the CC addresses these provisions one-by-one, the arguments put forward follow a similar logic, and are excruciatingly repetitive. The CC claims that since sex at birth is a factual datum based on medical expert opinion, its registration cannot contradict human dignity. As to why that is the case – the CC provides no explanation. Following this argumentation, the state registration of any factual data that can be established by a medical professional (genetic data, hereditary diseases etc.) cannot be challenged with reference to human dignity.

The CC then proposes to answer two questions: (1) what data the state can register, and (2) whether the right to self-determination encompasses the right to have gender identity registered by the state, and if so under what conditions (33, repeated in 46). Regarding the first, the decision recalls the Ninth Amendment to the Fundamental Law and the amended text of Article XVI (1) which explicitly mentions children’s right to self-identity in line with their sex at birth. The CC argues that since the concept of the sex at birth is contained in the Fundamental Law, its registration directly relates to the Fundamental Law, thus its registration cannot be in violation of the Fundamental Law. The CC appears to argue that the mere fact that the Fundamental Law mentions sex at birth, justifies the state to record it. It adds that medical, penological, sport or labor law considerations also make its registration necessary and proportionate, although the proportionality is merely stated rather than demonstrated.

The decision acknowledges that the state cannot record any data in the birth registry: among other things, such data “need to relate to registry events”, “be capable of identifying a given individual”, and “be unique and if possible, unamendable” (35). While recording the parent or the date of birth is in fact related to the registry event, i.e. the birth, the CC does not clarify how and why a person’s sex at birth is of relevance to the birth event. Furthermore, sex at birth is not a unique identifier, since around half of the population belongs to the same group. At the same time, race or skin color, for example, meet these criteria to the same extent as sex at birth does, and are also included in the text of the Fundamental Law. We can only hope that the CC has not given a green light to record such data in the birth registry.

Regarding question (2) the CC simply states that “in the current procedure it only assessed whether the registration of sex at birth as an unamendable datum is in compliance with the Fundamental Law” (47). The CC summarizes its finding by stating that “(t)he fact that the state registers the individual’s sex at birth instead of or in addition to the individual’s self-identified gender corresponding to their identity (…) can be justified for several reasons” (50).

Despite the fact that the petition contained an overview of the ECtHR case law and the CC could have benefited from the thorough amicus briefs submitted by the National Authority for Data Protection and Freedom of Information on data protection considerations, and the Hungarian Psychological Association on the negative mental health consequences of the lack of legal gender recognition, it failed to include even a summary of the ECtHR case law or these submissions, let alone address their arguments.

The questions put forward by the CC indicate that they had in fact understood the human rights questions implied by the petition, however, they either avoided answering those questions, provided formalistic, technical and circular responses, or claimed that answering the question would be beyond the scope of the case. The CC opted for only a cursory assessment of the justifications and failed to advance reasons why the balance tilts in favor of those – unsubstantiated – state interests (e.g., labor law or penological grounds) over human dignity. A more comprehensive inquiry would have allowed the CC to recognize that even if registering sex at birth is acceptable under the Fundamental Law (a contrary reasoning could have been advanced without much effort), this finding does not exclude legal gender recognition for trans people. The CC, for example, could have argued that a gender marker separate from sex at birth should be added to the birth registry and other public registers, and legal gender recognition could entail amending this marker in the registry and official documents. The CC did not foreclose such a solution (they emphasize that the registration of sex at birth is justified “instead of or in addition” to gender identity). This would have offered a practical solution for trans people (even if not a fully satisfactory one). The CC of course cannot legislate the introduction of such a new gender marker, but they could have found that the lack thereof constitutes a legislative omission in violation of the Fundamental Law. The lack of such finding is particularly alarming, since no one has standing to initiate a proceeding for declaring a legislative omission, the CC needs to act ex officio.

Conclusion

The CC made a cowardly decision: it chose to remain concordant with the perceived political expectations, blatantly served the interest of the government majority, and echoed their fixation of biologically determined sex. To reach this shortsighted conclusion, it not only defied its own jurisprudence but ignored the ECHR jurisprudence, too. Although the CC claims that “the state does not take sides when it comes to its citizens’ gender identity”, it unequivocally does: it only acknowledges identities it deems worthy of protection, i.e. the ones matching the sex at birth.

USA: Tennessee legislature passes bills banning gender-affirming care and public drag

Tennessee lawmakers Thursday passed a bill that bans gender-affirming medical care for minors under 18 and a bill that bans “adult cabaret performances” in public places. The bills now heads to Governor Bill Lee for his signature. LGBTQ advocates strongly opposed the bills, saying they unfairly target transgender children seeking necessary medical care and violate free expression by banning drag performances.

The gender-affirming care ban prevents any healthcare provider from providing treatment to minors under 18 that impacts their hormones or changes their physical appearance. The bill blocks transgender youth from accessing care that helps them safely transition. Major medical organizations like the American Medical Association support gender-affirming care and have previously expressed their opposition to legislation that bans it. “The AMA opposes the dangerous intrusion of government into the practice of medicine and the criminalization of health care decision-making,” said an AMA Board Member in a past statement from the group. “Gender-affirming care is medically-necessary, evidence-based care that improves the physical and mental health of transgender and gender-diverse people.”

The second bill targets “adult cabaret performance,” which the bill defines to include any male or female impersonator that appeals to “prurient interest”–a term advocates say is ambiguous enough to be interpreted broadly. Anything deemed an “adult cabaret performance” will not be permitted in public places or anywhere a minor could potentially see the performance. Legal and community advocates have warned that this amounts to criminalization of drag performance, with Human Rights Campaign (HRC) Legal Director Sarah Warbelow saying the bill does “nothing but spread hate, misinformation, and extremism. Drag is a longstanding, celebratory form of entertainment and a meaningful source of employment for many across the state.”

Drag queens themselves have also been vocal, with prominent drag queens from Tennessee publicly expressing their opposition and warning that the bill would ban public pride. “This is an attempt to erase drag in Tennessee,” Memphis drag queen Bella DuBalle in a video. “This will make public Pride illegal this year.”

In a press release from the HRC, Warbelow said:

Rather than focus on actual policy issues facing Tennesseans, politicians would rather spend their time and effort misconstruing age-appropriate performances at a library to pass as many anti-LGBTQ+ bills as they can. Dangerous rhetoric like this has real consequences – prejudiced inspired bills only rile up an extremist base and normalize violence against the LGBTQ+ community, especially transgender and nonbinary people.

Both the bills come as international experts are expressing concern about the erosion of LGBTQ rights in the US. Conservative states legislatures are increasingly targeting the LGBTQ community. HRC reported in its release that 29 anti-LGBTQ bills were passed in 2022 and over 300 were introduced. So far in 2023, 340 anti-LGBTQ bills have been introduced, with over 150 specifically targeting transgender people. The LGBTQ community is also facing increased violence, such as the Club Q shooting in November 2022.

Still, the LGBTQ community in Tennessee was proud and defiant as the bills made their way through the legislature. “I might need help with my legal fees because I’m not stopping,” said Bella DuBalle. “We are queer people, we are strong, we will rise.”

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Spain allows anyone over 16 to change legal gender identity and name

Spanish Parliament Thursday approved a law aimed at increasing the rights of trans and gender-nonconforming minors. The bill permits anyone over the age of 16 to change their legal gender identities and names without parental, governmental or medical approval. It passed with 191 votes in favor and 60 against.

Previously, adults in Spain needed a medical diagnosis of gender dysmorphia in addition to two years’ of hormone treatment in order to request a legal change. The new bill allows the change to be made on national identity cards in three to four months with a simple declaration. Minors aged between 12 and 14 will require a judge’s authorization for the change, and those between the ages of 14 and 16 will need consent from a parent or guardian. The law also bans so-called “conversion therapy.”

Ahead of the vote, Spanish Equality Minister Irene Montero said, “This law recognises the right of trans people to self-determine their gender identity, it depathologises trans people. Trans people are not sick people, they are just people.”

Spain’s law reform comes as other European countries, including Sweden and Finland, backtrack on trans rights legislation they previously passed. Meanwhile, anti-trans legislation is on the rise in the US, with experts urging stronger protections.

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US federal court hears arguments in case that could overturn LGBTQ employment protections

The United States Court of Appeals for the Fifth Circuit Tuesday held oral arguments in Braidwood Management v. EEOC. The case is a class-action lawsuit filed by a for-profit wellness business and a church. The plaintiffs are seeking declaratory judgment that the First Amendment and the Religious Freedom Restoration Act (RFRA) allow employment policies that prohibit “homosexual or transgender behavior” for religious or non-religious reasons, even though the Supreme Court has ruled Title VII of the Civil Rights Act of 1964 protects LGBTQ employees.

The Fifth Circuit is hearing the case on appeal from a United States District Court of Northern Texas decision penned by Judge Reed O’Connor. O’Connor, appointed by President George W. Bush in 2007, gained national notoriety for his 2018 ruling finding the Affordable Care Act unconstitutional for violating the nondelegation doctrine, which was reversed on appeal. Attorneys representing both sides of the legal conflict in the 2012 and 2015 Supreme Court hearings on the Affordable Care Act decried the ruling as “lawless” in a New York Times Opinion article.

In oral arguments, Ashley Cheung Honold of the Department of Justice, arguing on behalf of the EEOC, claimed “The District Court issued a series of categorical, abstract rulings, untethered to any particular facts and in the absence of a concrete case or controversy.” Honold went on to declare O’Connor’s opinion as a “violation of Article III principles” and argued the opinion is unable to square with Supreme Court precedent stressing the need for individualized analysis on the issue.

John Mitchell, counsel for Braidwood Management, deflected the issue of justifiability raised by the government before arguing the merits of the case. Mitchell argued that the plaintiffs faced two “unpalatable options” of violating their religious beliefs by allowing homosexual or transgender behavior or facing the risk of immediate penalty by the government. Under questioning of the court, Mitchell admitted that the plaintiffs’ “[religious] conduct has not been chilled in a sense that they have changed their behavior,” but contends that a chilling effect occurred through the threat of prosecution.

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US appeals court will rehear challenge to inclusive Connecticut transgender athlete policy

The US Court of Appeals for the Second Circuit Monday ordered the reinstatement of an appeal of a ruling regarding a Connecticut school policy on transgender students’ participation in sports. The ruling dismissed a claim that the Connecticut Interscholastic Athletic Association’s (CIAC) policy, which provides transgender student athletes with an opportunity to participate in athletic programs that are consistent with their gender identity, is discriminatory against girls.

The court’s order showed that the reinstatement was prompted by a poll in which a majority of the active judges on the Second Circuit voted in favor of rehearing the appeal en banc, or in front of the entire court. The original appeal was heard by only three judges.

Senior Counsel at Alliance Defending Freedom Christiana Keifer said she was “pleased the entire Second Circuit has decided to rehear this important case and we urge the court to do the right thing, protect women’s sports.” However, according to the American Civil Liberties Union (ACLU), the Second Circuit originally ruled that “claims that cisgender girls were denied opportunities or championships [were] moot and unfounded.”

The case is an appeal from a judgement by the US District Court for the District of Connecticut, which dismissed a claim that the Connecticut School Policy violated Title IX of the Education Amendments of 1972 on discrimination. The appeals court upheld the decision of the lower court, thus supporting the policy.

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USA: South Dakota governor signs bill banning gender-affirming care for minors

South Dakota Republican Governor Kristi Noem signed a bill Monday banning both surgical and non-surgical gender-affirming treatments for minor patients. The bill, HB 1080, is set to go into effect on July 31, 2023.

The new law will prohibit healthcare professionals from providing gender-affirming treatments to those under the age of 18, including hormone therapy, puberty blockers and gender-confirmation surgery. Healthcare professionals currently providing such treatment must reduce their administration of drugs or hormones by December 31, 2023. Any healthcare professional found in violation of the bill will have their license or certificate revoked.

The bill has drawn significant criticism from LGBTQ-rights advocates and medical professionals who argue that it discriminates against transgender minors and constitutes governmental intrusion into healthcare. The American Civil Liberties Union (ACLU) of South Dakota made the following statement in opposition to HB 1080:

House Bill 1080 is a devastating and dangerous violation of the rights and privacy of transgender South Dakotans, their families and their medical providers. Medical decisions belong to patients (and their parents) and their doctors – not the government. The only controversy in providing life-saving gender-affirming care for transgender youth in South Dakota is the one fabricated by legislators who want to see this harmful bill become law.

Advocates of the bill, on the other hand, argue that it protects children from irreversible medical treatments and that parents should have the final say in their child’s medical treatment. Governor Noem stated “With this legislation, we are protecting kids from harmful, permanent medical procedures. I will always stand up for the next generation of South Dakotans.”

The bill makes South Dakota the sixth state in the previous two years to restrict gender transition healthcare for minors. Other states may follow suit with similar restrictions. According to the ACLU, a number of healthcare bills connected to LGBTQ+ rights, including gender-affirmation healthcare, are currently being contemplated across the country.

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EU human rights commissioner calls for end to ‘dangerous’ conversion therapy across all of Europe

https://www.thepinknews.com/2023/02/16/lgbt-conversion-therapy-europe-dunja-mijatovic/?utm_source=piano&utm_medium=email&utm_campaign=mypinknews&pnespid=suN7USFaOP5Ahaec.jO_CYnT70uhUJh_KOnj2O93sB5mOKjajOMhOF3ynFSgd79KAFc1KLHPbw

Interesting Article: Jens Theilen, The Future of Sexual Orientation and Gender Identity in Human Rights

The Future of Sexual Orientation and Gender Identity in Human Rights

9 February 2023

Source: https://voelkerrechtsblog.org/the-future-of-sexual-orientation-and-gender-identity-in-human-rights/