Botswana appeals court upholds decriminalization of same-sex sexual relations

The Botswana Court of Appeal in a unanimous full bench decision Monday upheld a 2019 High Court of Botswana judgment that struck down penal provisions criminalizing same-sex sexual relations.

Judge President Kirby, speaking for Justices Ranowane, Lesetedi, Gaongalelwe and Garekwe, dismissed the appeal filed by the attorney general against the high court’s judgment in Letsweletse Motshidiemang v Attorney General. That judgment struck down as unconstitutional sections 164(a) and 164(c) of the Botswana Penal Code, which prohibited a person from having or permitting another person to have “carnal knowledge against the order of nature” and prescribed imprisonment of up to seven years for such offenses.

Motshidiemang, a gay man, had moved the high court in 2016. He stated that the criminalization of his “only means of full sexual expression” violated his rights to liberty, dignity and equal protection of the law under section 3 and his right to protection from discrimination on the basis of sexual orientation under section 15 of the Botswana Constitution.

The court agreed with Motshidiemang and also held the provisions violative of section 9 of the constitution, which deals with the right to privacy. Following the judgment, a survey recorded a notable decrease in intolerance against the LGBTQ+ community.

However, the attorney general appealed against this decision, largely on grounds that it constituted judicial usurpation of legislative powers. The attorney general also claimed that the decision “departed in an impermissible way” from the 2003 judgment Kanane v. The State, in which the appeals court held that section 164(c) was constitutional because gay men and women did not then constitute a “group or class requiring constitutional protection.”

The appeals court, however, found public attitude on homosexuality in Botswana had changed sufficiently to permit the striking down of the penal provisions — a possibility expressly recognized in Kanane. The court also noted it was empowered by section 18(2) of the constitution to strike down laws that do not pass constitutional muster. However, it chose to retain section 165 since it prescribes the punishment for bestial offenses under section 164(b).

The widely hailed decision makes the appeals court only the second apex court in Africa to decriminalize same-sex relations. The South Africa Constitutional Court was the first to do so in 1999.

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Botswana appeals court upholds ruling that decriminalised gay sex

GABORONE, Nov 29 (Reuters) – Botswana’s Court of Appeal on Monday upheld a 2019 ruling that decriminalised gay sex, a decision hailed by gay community as establishing the southern African country as a “true democracy”.

Read: https://www.reuters.com/world/africa/botswana-appeals-court-upholds-ruling-that-decriminalised-gay-sex-2021-11-29/

How trans parents are better protected after European Court ruling

Source: https://ilga-europe.org/blog/how-trans-parents-are-better-protected-after-european-court-ruling

Recently, the European Court of Human Rights ruled in favour of a trans woman in Russia who was denied access to her children because of her gender identity and transition. Read on to find out how this may benefit all trans and LGBTI parents in Europe.

For four long years, A.M. did not see her own children. This was not her decision. She was denied her right to love, care for and nurture the bond with her children because of her gender identity and her transition, after her ex-spouse obtained a court order. Now, the European Court of Human Rights has ruled in her favour in a landmark judgment. This is the first time the court has found a violation of the prohibition of discrimination (Article 14) because of a person’s gender identity. It also found a violation of the applicant’s right to private and family life (Article 8).

A.M., the applicant in the case, is the parent of two children born in 2009 and 2012. After seven years of marriage, in 2015 she separated from her wife and began her legal gender recognition process to live in the gender she identifies with. She continued to see her children for over a year, until a district order obtained by her ex-partner cut off visitation in 2017.

The Russian courts argued that the decision to restrict the applicant’s parental rights was necessary, as contact with the trans parent would have a “negative impact on the mental health and psychological development” of her children. It also claimed that visitation could violate so-called propaganda law, which bans public statements in relation to LGBTI people in Russia.

However, the European Court of Human Rights noted that the domestic courts made their decision “in the absence of any demonstrable harm to the children,” failing to demonstrate that the restriction was justified and well-substantiated. Notably, the court found that the applicant had been discriminated based on her gender identity in comparison to other cis parents, saying that she has been “treated differently from other parents who also seek contact with their estranged children, but whose gender identity matches their sex assigned at birth.” It also added that depriving A.M. of any contact with her children could “have irremediable consequences for relations between the child and the parent with whom that child does not live.”

The court awarded the applicant €9,800, even though she had not asked for pecuniary compensation, concluding that “such damage cannot be compensated for solely by the finding of a violation.”

Every fourth trans person in Europe is a parent and this judgement gives legal security to many of them. Now it has been confirmed that discrimination based on gender identity, prohibited under the European Convention, applies in parental rights cases. If you are a good parent, that’s what matters, irrespective of your gender identity

From a children’s rights perspective, when someone tries to limit parental rights for trans and LGBTI parents more broadly, the main argument used is that it is has detrimental effect on children. In other words: they say children would suffer because of their parent’s gender identity. The court has made clear that it is in the best interest of the child to have a loving parent and that to restrict visitation just because a parent is trans is not a good enough reason.

The European Court of Human Rights is the court of law of the Council of Europe, of which Russia is a member. Judgments of the European Court of Human Rights are binding on all Council of Europe Member States; however, Russia has ignored the rulings several times. In 2020, draft amendments to the Russian Family Code would have seriously negatively affected legal gender recognition procedures. In November these amendments were withdrawn.

“We call upon the Russian authorities to respect the court’s decision and immediately end the discrimination of trans families,” said ILGA-Europe’s Executive Director, Evelyne Paradis.

Photo credit: Ted Eytan / Creative Commons

Tags: transStrategic litigationECHR

Listen: Rainbow Family Rights in Europe in 2021 and Beyond

ILGA-Europe’s podcast The Frontline presents a brand-new mini-series looking at the many issues affecting LGBTI parents and their children across Europe

See: https://www.ilga-europe.org/blog/listen-rainbow-family-rights-europe-2021-and-beyond

World Athletics confirms transgender and DSD athletes framework to remain following updated IOC framework

Caster Semenyas Kampf gegen die Richtlinien des Leichtathletik-Weltverband werden wohl weitergehen (Bild: Yann Caradec / flickr)

World Athletics has confirmed its eligibility rules will remain in place, despite the International Olympic Committee (IOC) providing a new framework that it suggests governing bodies should follow.

World Athletics rules, which came into effect in 2019, cap athlete testosterone levels at five nanomoles per litre in women’s events from the 400 metres through the mile for differences in sex development (DSD) and transgender athletes.

Read: https://www.insidethegames.biz/articles/1115611/world-athletics-transgender-dsd-ioc

UNGA: Third Committee experiences heated discussion over language on diversity, sexual orientation and gender identity in a draft related to elections, after sparring on other texts that referenced sexual and reproductive health and rights

The Third Committee (Social, Humanitarian and Cultural) sent 10 draft resolutions to the General Assembly as it concluded its work today, culminating in a heated discussion over language on diversity, sexual orientation and gender identity in a draft related to elections, after sparring on other texts that referenced sexual and reproductive health and rights.

Read: https://www.un.org/press/en/2021/gashc4340.doc.htm

Read: https://www.queer.de/detail.php?article_id=40507&pk_campaign=Nwsl

Thailand Constitutional Court rules against marriage equality

Thailand’s Constitutional Court on Wednesday ruled a law that defines marriage as between a man and a woman in the country is constitutional.

The Foundation for Sexual Orientation and Gender Identity Rights and Justice, a Thai advocacy group, filed a lawsuit that challenged Section 1448 of the country’s Civil and Commercial Code, which does not extend marriage rights to same-sex couples. Bloomberg said the Constitutional Court in its ruling said Thai lawmakers “should draft laws that guarantee the rights for gender diverse people.”

Read: https://www.washingtonblade.com/2021/11/18/thailand-constitutional-court-rules-against-marriage-equality/

International Olympic Committee issues new guidelines on transgender athletes

Athletes will no longer be required to undergo “medically unnecessary” hormone treatments to compete, the IOC said.

Read: https://www.nbcnews.com/nbc-out/out-news/international-olympic-committee-issues-new-guidelines-transgender-athl-rcna5775

Iceland, Norway, and the Netherlands have the highest levels of LGBTI acceptance

Read: https://williamsinstitute.law.ucla.edu/publications/global-acceptance-index-lgbt/

Spain opens free IVF to single women, lesbian and bisexual women, trans people with gestational capacity

Lesbian and bisexual women, single women, and trans people with gestational capacity in Spain will now have access to free in vitro fertilization (IVF) services through the country’s national health system, the government has announced.

Rainbow communities celebrated the news after the country’s Health Minister signed an executive order, reversing a 2014 policy that restricted access to the service to cis straight women in a relationship and to individuals with infertility. Activists have ever since fought to see assisted reproduction benefits return, and had considered this as “a ’red line’ in the negotiations for the LGBTI and Trans Law currently being discussed”.

“We have always understood that achieving rights such as assisted reproduction would benefit lesbian, bisexual women and trans people with gestational capacity, without harming anyone,” said FELGTBI+ president Uge Sangil during the signing ceremony. “It is an example of how recognising LGTBI rights means recognising human rights for society as a whole”.

Other groups echoed their appreciation. “Finally, assisted reproduction is included for single women, lesbians, bisexual women, and trans people with gestational capacity,” Arcópoli wrote in a tweet. “This is the way to continue expanding rights and not leaving anyone out.”

Source: https://ilga.org/lgbti-news-201-ilga-nov-2021#Europe