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.
USA: Ninth Circuit upholds Washington’s ban on conversion therapy for minors
The US Court of Appeals for the Ninth Circuit Tuesday unanimously upheld Washington’s state ban on conversion therapy for children under 18. The three-judge panel rejected therapist Brian Tingley’s claim that the law undermined his free speech and free exercise rights under the First Amendment.
Judge Ronald M. Gould wrote the opinion of the court that affirmed the district court’s dismissal of Tingley’s claim. The court compared the case to a nearly identical California law upheld in the case of Pickup v. Brown. In that case, the court ruled that the state ban on conversion therapy regulated conduct, not speech, and therefore did not violate the First Amendment.
In this case, the court ruled that the Washington legislature acted rationally when it decided to protect the physical and psychological well-being of its minors by preventing state-licensed health care providers from practicing conversion therapy. The court also ruled that the law was neutral and targeted at preventing harms associated with conversion therapy in addition to not targeting religious exercise. After the court reviewed legal precedent, it concluded that there is a well-established tradition of constitutional regulations on the practice of medical treatments.
In June, President Joe Biden signed an executive order which encouraged the Federal Trade Commission “to consider whether so-called conversion therapy constitutes an unfair or deceptive act or practice, and to issue such consumer warnings or notices as may be appropriate.”
USA: Texas federal judge rules HIV preventative-care mandate violates private employer’s religious rights
A Texas federal judge Wednesday ruled that private employers do not have to provide health insurance coverage for HIV prevention drugs (PrEP drugs) and other preventative care if it violates their religious rights. The ruling means private employers can now offer health insurance plans that exclude or limits coverage of PrEP drugs, contraception, the HPV vaccine, and screenings and behavioral counseling for STDs and drug use.
US District Judge Reed O’Connor found that the government defendants failed to show “a compelling interest in forcing private, religious corporations to cover PrEP drugs with no cost-sharing and no religious exemptions.” At issue in the lawsuit was the preventative-care mandate, which requires most private employers’ health insurance plans to cover certain preventative care under the Patient Protection and the Affordable Care Act.
Six individuals and two businesses challenged the legality of the preventative-care mandate in the US District Court of the Northern District of Texas. Braidwood Management, a Christian for-profit corporation and one of the plaintiffs in the case, alleged that the preventative-care mandate violated the business’s religious beliefs “by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.” Braidwood Management, along with the other plaintiffs, argued that they suffered religious and economic injuries by being forced to pay for insurance coverage they neither supported nor wanted.
O’Connor agreed with the Braidwood Management, stating that the government’s arguments were unpersuasive. The court stated the government inappropriately argued the correctness of the Braidwood Management’s beliefs when they should have focused on the sincerity of the beliefs.
India National Medical Commission declares conversion therapy ‘professional misconduct’
India’s medical regulatory institution, the National Medical Commission (NMC) Friday declared conversion therapy “professional misconduct” and empowered the State Medical Councils to initiate disciplinary action against medical professionals if they attempt to perform conversion therapy.
Conversion therapy, a pseudoscientific therapy concept intended to change a LGBTQIA+ person’s sexual orientation or gender identity, is considered torture by rule of law and human rights organizations. While same-sex relationships are protected in India, conversion therapy is practiced through the nation. Anjana Hareesh, a 21-year-old student, reportedly completed suicide in 2020 after her family forced her to undertake conversion therapy for months after coming out as bisexual.
On June 6, 2021, the Madras High Court prohibited the practice of conversion therapy and issued guidelines observing that “queerphobia is being affirmed in the curriculum of the country’s medical courses, leading to prejudice against LGBTQIA+ community.” In July 2022, the Madras High Court issued a series of directives intended to uplift the LGBTQIA+ community and asked the NMC to label conversion therapy as professional misconduct. In adherence to the Madras High Court directions, NMC identified conversion therapy as professional misconduct under the Indian Medical Council (Professional Conduct Etiquettes and Ethics) Regulations, 2002.
Americas: Williams Institute partners with the Inter-American Commission on Human Rights
This month, the Williams Institute signed a five-year cooperation agreement with the Inter-American Commission on Human Rights (IACHR) to engage in joint activities that advance the rights of LGBTI people throughout the Western Hemisphere. The IACHR is an independent institution of the Organization of American States (OAS).
IACHR’s Special Rapporteurship on the Rights of LGBTI Persons has authority to investigate human rights violations and make recommendations to OAS member states on measures to promote the rights of LGBTI persons. Our new partnership with IACHR will encompass a range of activities including research, data collection, and technical assistance.
EU: 145 MEPs sign letter to Serbian leadership calling to maintain the organisation of EuroPride 2022 and deploying sufficient police protection
Aleksandar Vučić, President of Serbia
Ana Brnabić, Prime-Minister of Serbia
Cc:
Jadranka Joksimovic, Serbian Minister for European Integration
Emanuele Giaufret, Head of the EU Delegation to Serbia
Stefanno Sannino, Secretary-General of the European External Action Service
Stella Ronner-Grubacic, EU Ambassador for Gender and Diversity
Brussels, 31 August 2022
Subject: Maintaining the organisation of EuroPride 2022 in Belgrade and deploying sufficient police protection to ensure its safety
Dear President,
Dear Prime-Minister,
Dear Minister,
Pride demonstrations are peaceful tools for political advocacy and one way in which the universal right to freedom of expression and peaceful assembly is crystallised. They are a hallmark of the LGBTIQ activist movement, a pillar for social visibility and they are equally political demonstrations during which the community voices its concerns, highlights its achievements and gives the opportunity to its members to demonstrate in favour of equality.
The decision to host EuroPride in 2022 came with many expectations. Belgrade has for years been fighting for equality for LGBTIQ persons in the region. EuroPride taking place in Belgrade this coming September will therefore be a milestone both for the movement and the region. In effect, this would make Belgrade the first city in Southeast Europe and the first outside the European Economic Area to host a major event for the pan-European LGBTIQ community. It would take place precisely 21 years after the first Pride organised in Belgrade in 2001 and on the thirtieth anniversary of the first EuroPride.
EuroPride in Belgrade is highly significant because LGBTIQ people continue to face discrimination in the Balkans, as they do in other parts of Europe. No European country has managed to eliminate discrimination, which substantiates why the fight to end inequality and discrimination needs all the political support it can gather. Awarding EuroPride to Belgrade was and remains the right decision.
As Members of the European Parliament committed to fighting for equality in all its forms, and in particular LGBTI equality through the work of the Intergroup on LGBTI rights, we deeply appreciate the political will that has played a role in cooperating with the EuroPride organisers.Today, we ask you to continue this positive cooperation and to support the organisers in delivering a safe and affirming EuroPride March.
We are aware that there are threats to the security of protestors, yet we maintain that banning this event outright is not the right solution. The situation of anti-LGBTIQ counter-protests which are often violent is unfortunately not new to Prides and therefore the police response should be swift, efficient and sufficient. Should there be a need, more police should be deployed to ensure the Pride march and surrounding events can effectively take place. According to Serbia’s obligations under the European Convention on Human Rights, and following a 2010 landmark document adopted by the Committee of Ministers of the Council of Europe:
15. Member states should ensure that law enforcement authorities take appropriate measures to protect participants in peaceful demonstrations in favour of the human rights of lesbian, gay, bisexual and transgender persons from any attempts to unlawfully disrupt or inhibit the effective enjoyment of their right to freedom of expression and peaceful assembly.[1]
Additionally, the European Court of Human Rights has in the past ruled that a Pride ban is a breach of the Convention (Baczkowski v Poland[2]) and that failure to protect peaceful demonstrators during demonstrations such as Pride marches equally amounts to a violation (Identoba and Others v. Georgia[3]). Serbia’s commitment to human rights is further underpinned by the Stabilisation and Association Agreement with the European Union, where all parties recognise the paramount importance of the rule of law and respect for human rights.[4]
Lastly, the EU Delegation to Serbia has regretted that EuroPride was banned, calling for further clarification.[5]
Prides have been and will remain being a crucial visibility tool for the LGBTIQ community all over the world. It is in this spirit that we urge the leadership of the Serbian government to:
enable EuroPride to take place as scheduled;
additionally commit to deploying sufficient law enforcement to ensure its safety, thereby ensuring that all attendees can safely exercise their right to peaceful assembly and freedom of expression;
maintain dialogue with the EU Delegation and organisers in order to find a solution that ensures the above.
Yours sincerely,
LGBTI Intergroup Bureau
Marc ANGEL, Co-Chair (S&D, Luxembourg)
Terry REINTKE, Co-Chair (Greens-EFA Vice-President, Germany)
UN expert warns LGBT rights being eroded in US, urges stronger protections
A UN Independent Expert [Victor Madrigal-Borloz, the UN Independent Expert on sexual orientation and gender identity], Tuesday said that the human rights of lesbian, gay, bisexual, trans, and gender diverse (LGBT) people are being “deliberately undermined” by some state governments in the United States and urged the Biden administration to strengthen and protect LGBT rights.
Victor Madrigal-Borloz, the UN Independent Expert on sexual orientation and gender identity, presented his findings after a 10-day visit to cities in the United States.
The expert penned that the Biden administration has taken an “impressive array of executive measures” aimed at the protection of LGBT rights, such as Executive Order 13988.
Despite progressive federal measures, the expert observed “a trend to weaponize state agencies” and described state actions as “regressive”. In 2021, 268 anti-equality bills were introduced in state legislatures. One year later, 22 States sued the Biden administration over a rule in Executive Order 13988 which would cut federal meal funding for schools which do not include LGBT-friendly policies. State action was of great concern to the expert, who stated “without exception, these actions rely on prejudiced and stigmatizing views of LGBT persons, in particular transgender children and youth, and seek to leverage their lives as props for political profit.”
In light of their concerns about state action, the expert optimistically noted that the United States “played a central role in the design and adoption of the Universal Declaration of Human Rights” and praised the Biden-Harris administration for its efforts “to support the human rights of all LGBT persons living under its jurisdiction and helping them to safe waters.”
USA: Yeshiva University asks US Supreme Court to block order compelling recognition of LGBTQ+ student group
The flagship university of Modern Jewish Orthodoxy turned to the US Supreme Court on Monday in hopes of blocking a lower-court order that would require it to formally recognize an LGBTQ+ student organization.
The case originated in 2021, after multiple unsuccessful attempts by the student club, the Pride Alliance, to seek recognition from Yeshiva University’s administration. According to the group’s initial complaint, three attempts to seek recognition between 2019 and 2020 were denied because of the university’s prohibition on student clubs with names that included the terms “LGBT” or “gay.” The group went on to argue that as a university in New York City, Yeshiva qualifies as a place of public accommodation, and is thus barred under the municipal Human Rights Law from discriminating against students on various protected grounds, including sexual orientation and gender identity.
The university has stated that its refusal to formally recognize the group is rooted in religious reasons and that nonetheless it offers support services to LGBTQ+ students, and prohibits bullying on grounds of sexual orientation. It initially responded to the organization’s complaint with a motion to dismiss, which was ultimately converted to a motion for summary judgment. The university argued that owing to its religious affiliation and its incorporation under New York’s education law, the university is exempt from the human rights law’s public accommodations provision. The university further argued that the alliance’s reading of the human rights law would violate its religious autonomy, and infringe upon its rights to free exercise, speech, and assembly, in violation of the US Constitution.
In June of this year, New York State’s Supreme Court held that although “a religious corporation incorporated under the education law” is expressly excluded from New York City’s human rights law, a 1967 amendment to Yeshiva University’s charter describes the school as an “educational corporation under the Education Law of the State of New York,” and that it is organized and operated “exclusively for educational purposes.” These descriptions, the court notes, represented a departure from the university’s original charter, which had stated the school existed for exclusively religious purposes “to promote the study of the Talmud.” The court thus held the university was not exempt from New York’s prohibition on discrimination as a place of public accommodation.
The New York court also rejected the university’s constitutional arguments. With respect to free exercise, it found the anti-discrimination requirement for places of public accommodation did not violate the school’s rights as the human rights law is generally applicable, and thus its ban on discrimination does not target religious practice. With respect to free speech, the court was also unconvinced, holding that Yeshiva is being asked only to provide the Pride Alliance with the same benefits afforded to other student groups, and not to make a statement endorsing any particular viewpoints with respect to LGBTQ+ issues. The court was also unpersuaded by the university’s free association argument, citing the Supreme Court’s decision in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., which stated: “just as saying conduct is undertaken for expressive purposes cannot make it symbolic speech … so too a speaker cannot erect a shield against laws requiring access simply by asserting that mere association ‘would impair its message.’”
The New York court held the university and its leadership were permanently restrained from continuing their refusal to formally recognize the Pride Alliance, and ordered the school to immediately grant the organization “full and equal accommodations, facilities and privileges afforded to all other student groups.”
The Becket Fund for Religious Liberty, an advocacy group that promotes the free exercise of all faiths, filed Monday’s emergency application with the US Supreme Court on behalf of Yeshiva University. In it, the university sought a stay of the lower court’s orders pending appellate review, or a writ of certiorari and stay pending resolution of the dispute. The school argued that the lower court’s order essentially compels the university and its leadership to either violate their religious beliefs or face contempt, referring to the court order as an unprecedented intrusion into the “religious formation of its students in the Jewish faith. The complaint goes on to accuse New York secular authorities of seeking to overrule Yeshiva’s religious authorities in violation not only of the first amendment, but also of the wishes of America’s first president:
In 1790, President George Washington wrote to the Jewish community in Newport, Rhode Island, of his wish that the “Children of the Stock of Abraham” would continue to enjoy the goodwill of their fellow citizens, such that each could “sit in safety under his own vine and figtree, and there shall be none to make him afraid.” … Yet when the secular authorities of New York purport to overrule the religious authorities at Yeshiva—and when the civil courts insist the First Amendment has nothing to say about the matter—something has gone terribly wrong.
It is not immediately clear if and when the Supreme Court will respond to the application. The justices are presently on recess, with arguments set to commence in early October.
Eastern Caribbean Supreme Court strikes sodomy law, protects LGBTQ+ rights
The Eastern Caribbean Supreme Court in the Federation of Saint Christopher and Nevis (St. Kitts and Nevis) Monday struck down the country’s anti-sodomy law, thus protecting the constitutional rights of LGBTQ+ citizens.
Sections 56 and 57 of the Offences Against the Person Act, Cap. 4.21 deal with sodomy and indecent assault against males respectively. These provisions punished adults of the same gender for having consensual sexual intercourse in private. The court determined that the concerned law contravenes the constitutional rights enshrined in sections 3, 7, 12 and 15 of the Constitution of the Federation of Saint Christopher and Nevis and Section 15 of the constitution specifically prohibits discrimination, inter alia, on the grounds of sex. The court also discussed that the state has ratified the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination Against Women (CEDAW) which prohibit the same.
The court concluded that the laws criminalizing sodomy and indecent assault do not discriminate between males and females or even between homosexual males and heterosexual males and was interpreted to be gender and sexual orientation neutral. However, the court accepted that the above laws contravene the right to personal privacy and the right to freedom of expression. The law is not reasonably justifiable to proscribe sexual acts between consenting adults in private, which involve no element of public conduct or harm to, or sexual acts with, minors.
Therefore, the court determined the law to be excessive and arbitrary. The court did not strike the law in totality, but it did strike the sections which are inconsistent with the constitution. The court determined that Section 56 of the Act contravenes Sections 3 and 12 of the Constitution and declared it null and void. Section 56 is not applicable to the extent that it criminalises any acts constituting consensual sexual conduct in private between adults. The court also modified parts of sections 56 and 57 of the Act to make them consistent with the ambit of the Constitution.
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 