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.
Masuma Shahid is a PhD Candidate in the field of LGBTQ+ Rights at the Erasmus School of Law of the Erasmus University Rotterdam.
The United States Supreme Court issued a landmark decision in Bostock v. Clayton County on 15 June 2020 with major implications for 8,1 million LGBTQ+ workers (1 million of which transgender individuals), that now enjoy protection against discrimination on grounds of sexual orientation and/or gender identity. This contribution delves into the Court’s decision and its consequences, and also discusses its past key LGBTQ+ related rulings that have brought much-needed equality for the LGBTQ+ community in the last 20 years.
Workplace discrimination against LGBTQ+ employees allowed?
In October of 2019, the Supreme Court held a hearing in which the three court cases of Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission were argued around the same question: does Title VII of the Civil Rights Act of 1964 also protect gay, lesbian and transgender employees against discrimination? The hearing concerned David Zarda (a skydiving instructor) and Gerald Bostock (a child welfare advocate), who were both fired from their jobs for being gay, and Aimee Stephens, who was fired from her position in a funeral home after she told her employer of her plans to transition from male to female. All three employment contracts were thus terminated either based on sexual orientation and/or gender identity and the question was whether federal legislation allowed for this. In its groundbreaking ruling in Bostock, it took the Supreme Court only a few sentences to provide a sharp response: ‘The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.’
This decision is unexpected for several reasons. Title VII of the Civil Rights Act prohibits discrimination in employment on the basis of race, color, religion, national origin, and sex. The decision in Bostock came down to the question whether the right to not be discriminated against on grounds of sex includes sexual orientation and/or gender identity. Opponents of LGBTQ+ rights have maintained that Congress did not take into account the protection of LGBTQ+ workers when adopting the sex ground in Title VII of the Civil Rights Act in 1964; in fact, same-sex conduct was forbidden by law in many states.
The Court’s ruling indeed (unexpectedly) confirms that what is considered to be sex discrimination, should be interpreted broadly. The Court explains that Title VII is violated when an employer intentionally fires an individual employee based in part on sex or when changing the employee’s sex would have yielded a different choice by the employer. To elucidate this, the Court provides an example of an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Another example is an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. In both cases, the person’s sex plays an unmistakable and impermissible role in the decision to discharge them. Basically, employers don’t get to decide who workers are attracted to or how they should identify themselves.
Moreover, the case is an unexpected victory for the LGBTQ+ community as it was delivered after a 6-3 majority vote by (what most consider) a conservative Supreme Court since the 2018 retirement of Justice Anthony Kennedy who was considered the key swing vote in previous noteworthy pro LGBTQ-rulings of the Court. Bostock is a double blow for the Trump administration: it not only goes directly against the brief filed by the government in two of the three cases, but Justice Neil Gorsuch, a Trump appointee, joined the more ‘progressive’ majority and wrote the opinion himself. Chief Justice John Roberts, a Bush Jr. appointee, also joined the majority, while Justices Kavanaugh and Alito filed a dissenting opinion, in which Justice Thomas joined.
The evolution of the Supreme Court in its LGBTQ+ case law
The Court’s ruling in Bostock is one in a string of LGBTQ+ related cases delivered by the Court; each ruling providing an extra building block to stand on in the continuous struggle of the LGBTQ+ community for LGBTQ+ equality justice. Coincidentally (or is it?), all of these Supreme Court decisions were delivered during ‘Pride Month’; a month that already celebrates the freedom to be oneself, but also commemorates the June 1969 Stonewall riots; commonly considered as the catalyst of the organized LGBTQ+ movement we globally see today.
The first historic LGBTQ+ related ruling of the Supreme Court was in 2003, when it was requested to look into a Texan law criminalizing homosexual activity. The case concerned John Geddes Lawrence who was arrested after he was caught having sex with a male acquaintance at his own home which was raided by the local police after a jealous lover filed a fake police report. The Court was asked to assess whether intimate consensual homosexual conduct was part of the liberty protected by substantive due process under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. In its 26 June 2003 decision in Lawrence v. Texas, it struck down the Texan sodomy law criminalizing consensual adult homosexual intimacy, ruling it unconstitutional. A tremendous triumph for LGBTQ+ equality, laying the groundwork for more positive rulings to follow.
Ten years later in 2013, more landmark decisions on LGBTQ+ rights were delivered in June. In United States v. Windsor, which was on inheritance law, the Defense of Marriage Act (DOMA) was challenged. New Yorkers Edith Windsor and her partner Thea Spyer had travelled to Canada in 2007 to marry each other and upon return, their marriage recognized by New York. When Spyer later passed away, she left her entire estate to Windsor. Windsor sought to claim a federal estate tax exemption for surviving spouses, but was barred by DOMA which amended the Dictionary Act. This legislation provided specific details for over 1,000 federal laws and regulations and defined ‘marriage’ and ‘spouse’ as excluding same-sex partners. Windsor filed a suit challenging DOMA. With a majority of the votes on 26 June 2013, the Supreme Court ruled DOMA unconstitutional and overturned it with immediate effect.
On the same day, the Supreme Court issued another significant LGBTQ+ decision, namely in Hollingsworth v. Perry. In May of 2008, the California Supreme Court had held that limiting marriage to opposite-sex couples violated the California Constitution. This resulted in thousands of overjoyed Californian same-sex couples marrying in the next months. Opponents of same-sex marriage were not amused and passed a ballot initiative known as Proposition 8, amending the State Constitution to define marriage in California as a union between a man and a woman. Same-sex couples wanting to marry filed a suit in federal court challenging Proposition 8, which the District Court declared unconstitutional. The petitioners, the official proponents of the Proposition 8 initiative, appealed this decision and brought it before the Supreme Court. With a 5-4 majority in Hollingsworth v. Perry, the Supreme Court overturned Proposition 8 by deciding that the petitioners did not have standing to appeal the District Court’s order. This resulted in Californian same-sex couples being able to marry again.
The most groundbreaking LGBTQ+ ruling of the Supreme Court on a June 26th had yet to be delivered; this decision fell on 26 June 2015 with the Court’s ruling in Obergefell v. Hodges, which effectively legalized same-sex marriage in all of its 50 States. The Obergefell case evolved from six different cases representing sixteen different same-sex couples who either challenged their state’s ban on same-sex marriage or the refusal of recognition of a same-sex marriage legally concluded in another state or jurisdiction. The Supreme Court consolidated some of the cases and decided to review the issue. The case had 148 amici curiae briefs submitted; the most a case before the Supreme Court ever, including one on behalf of 379 businesses in favor of same-sex marriage. The proceedings culminated in a 5-4 ruling declaring same-sex marriage bans a violation of the Fourteenth Amendment’s Due Process and Equal Protection Clauses. The decision resulted in an obligation for states to open up marriage for same-sex couples and to recognize same-sex marriages concluded in other jurisdictions.
The last LGBTQ+ related June-ruling of the Court before Bostock was on June 26th 2017 in Pavan v. Smith, where it was asked to rule on whether Arkansas could stop same-sex partners from being listed on the birth certificates of the babies of their same-sex spouses. Arkansas had legislation which allowed the male spouses of women who had used anonymous sperm donation to be registered as the father of the child. According to the Supreme Court, this provided a form of legal recognition which was not offered to unmarried couples. Hence, after Obergefell, same-sex couples could not be denied similar legal recognition as the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’
Bostock’s place in the Supreme Court’s LGBTQ+ case law?
The consequences of the Court’s most recent LGBTQ+ ruling in Bostock are profound; it confirms that around 8 million LGBTQ+ workers deserve the same level of respect, dignity and equality as their co-workers, regardless of their sexual orientation and/or gender identity. Half of these workers are living in states without LGBTQ+ protection clauses in state legislation. The ruling is delivered in what seems a critical time in the history of LGBTQ+ equality; it was only last year that Congress introduced the Equality Act, a bipartisan piece of federal legislation that would expressly prohibit discrimination based on sexual orientation or gender identity in employment, education, public accommodations, housing, credit, and other settings. If enacted, this legislation would protect millions of LGBTQ+ individuals across the US, living largely in states without laws protecting against sexual orientation and gender identity discrimination. Bostock might have a positive influence in the discussion of the Equality Act in the Senate. For now, we can establish that the ruling fits in nicely with the Court’s previous ‘rainbow’ rulings in June; it affords the LGBTQ+ community imperative rights protection (in this case, in the workplace) and provides an extra reason to be happy and gay this month.
ILGA-Europe’s Third Party Interventions Before the European Court of Human Rights: Celebrating 20 Years of Our First Submission
20 years ago today, on 15 June 2000, ILGA-Europe submitted its first third party intervention before the European Court of Human Rights in the case of Frette v France. To mark this anniversary, we reflect on how this intervention effectively marked the beginning of ILGA-Europe’s litigation work, which has developed exponentially in the recent years. Nowadays, third party intervention submissions are important and a big part of our litigation work addressing various aspects of LGBTI rights.
The submission in Frette was initiated by our long-term supporter, Professor Robert Wintemute from King’s College London, and was inspired by his previous experience of amicus curiae submissions before US courts. The case concerned refusal of authorisation to adopt, based on applicant’s sexual orientation. Disappointingly, the Court delivered a negative judgment, referring to, among others, lack of consensus among the Council of Europe member states on adoption by gay and lesbian prospective parents, and limited number of scientific studies approving gay and lesbian parenting. Yet importantly, this case was a steppingstone for other cases before the Court, since the judgment was decided by four votes to three, and three the judges issued a supportive dissenting opinion. Many aspects of the latter were reflected in another adoption case, E.B. v France, decided positively only 6 years later in 2008.
It would be fair to suggest that this first third party intervention was an enlightening experience both for the Court and ILGA-Europe. As a first case on adoption by a gay person, it signalled the importance of family and the need to protect family rights of gay and lesbian parents. ILGA-Europe later built on the experience of providing the Court with the necessary information in order to enable positive and stronger judgments.
Thus, as the E.B. case came before the Court, ILGA-Europe once again submitted a third party intervention, also initiated by Professor Wintemute, this time jointly with other human rights organisations: Fédération Internationale des ligues des Droits de l’Homme (FIDH), British Agencies for Adoption and Fostering (BAAF), and Association des Parents et futurs parents Gays et Lesbiens (APGL). This submission provided the Court with information on “gradual trend towards full equality for same-sex couples with regard to second-parent adoption and joint adoption” among the Council of Europe member states, naming the countries which started permitting various forms of adoption to gay and lesbian couples.
In addition, the submission highlighted extensive scientific research in the field of adoption and parenting, evidencing that children raised by gay or lesbian parents do not suffer any harm in their psychological development, or exhibit any emotional, cognitive, social, and sexual functioning different to those in heterosexual families, and that parenting effectiveness is not related to parental sexual orientation.
These cases were just the beginning.
In subsequent years, more and more LGBTI organisations across Europe started to actively engage in strategic litigation work on LGBTI rights. Our work in supporting member organisations, building strategic partnership for litigation work, capacity building and peer learning, bringing in free resources to our members, sensitising the legal community, supporting implementation of judgments, as well as regarding third party interventions grew continuously. Many people contributed: LGBTI activists, legal advisors, and partners on national level; we are lucky to partner with other human rights organisations in strengthening strategic litigation on European level; and of course Nigel Warner, who until 2019 supported ILGA-Europe in developing this important area of our work.
Now 20 years on, we are working with member organisations and partners on strategic litigation cases addressing diverse areas of LGBTI rights, including hate crimes and hate speech, arbitrary arrests, detention and torture of LGBTI people, broader aspects of family rights (including but not limited to recognition of same-sex couples, custody rights, trans parenting, access to ART), legal gender recognition, asylum rights, freedom of association and assembly, anti-propaganda laws, access to goods and services and others.
Following E.B. the Court has delivered a number of positive judgments establishing strong protection framework for LGBTI rights, in many of which ILGA-Europe had intervened jointly with members and partners.
To name a few:
Most recently in Beizaras and Leviskas v Lithuania, the Court established the obligation to investigate online hateful comments, in this case the speech expressed against a gay couple, to violate their rights to private and family life as well as being discriminatory on the ground of sexual orientation.
Concerning balancing the right to freedom of religion with the public interest in providing non-discriminatory services the Court held in Ladele and McFarlane v. UK that members of the public, regardless of their sexual orientation, should be treated with dignity and have equal access to services.
In A.P., Garcon and Nicot v France the Court found that requiring sterilisation surgery as part of legal gender recognition is in violation of the European Convention.
We would like to thank all our member organisations and engaged activists, partners, independent lawyers, researchers and academics for being partners in this important work.
Read our blog on our work in the hate speech case Beizaras and Levickas v. Lithuania.
USA: Landmark Supreme Court decision finds LGBTQ employees protected under Title VII
The US Supreme Court ruled 6-3 Monday that Title VII’s prohibition on sex-based employment discrimination extends to sexual orientation and gender identity.
In Bostock v. Clayton County, Georgia, the court was asked to decide whether Title VII of the Civil Rights Act of 1964, in which Congress outlawed the discrimination of individuals on the basis of race, color, religion, sex, or national origin, applied to employers firing an employee for being gay or transgender. Writing for the court, Justice Neil Gorsuch wrote,
The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undistinguishable role in the decision, exactly what Title VII forbids.
In responding to the employers’ position and the dissent, Gorsuch stated that, although the application of Title VII may have gone beyond the application of the thinking of the drafters of the Civil Rights Act of 1964, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” Rather than limiting the law, Gorsuch explains that the law’s application to situations beyond the drafters’ imagination, “simply ‘demonstrates [the] breadth’ of the legislative command.”
The question of whether an employer could fire someone for being homosexual or transgender came to the court through three cases from three circuit courts. The court distilled the facts of the three cases to: “An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.” While the cases had similar facts, they had different results in the circuit courts. In the Second and Sixth Circuit, the courts concluded that Title VII prohibits employers from firing employees because they are homosexual or transgender. In the Eleventh Circuit, however, the court found that the law did not prohibit employers from firing employees for being homosexual.
In the judgment, Gorsuch articulated the law’s plain meaning and its contours. In all, the court found that “an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.” Additionally, in response to claims that discrimination would require categorical treatment, the court emphasized that Title VII, on three occasions, states that discrimination against an individual violates the law.
In applying the definition to the cases at hand, the court stated, “The statues message for our cases is … simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Gorsuch reaffirmed this statement later in his opinion, stating “homosexuality and transgender status are inextricably bound up with sex.” Gorsuch demonstrated how bound up it is by stating that when trying to explain what the homosexual and transgender mean, one cannot do it, “without using the words, man, woman, or sex (or some synonym). It can’t be done.”
The court’s decision, while anchored in the plain meaning of the Act’s words, demonstrates the breadth of Title VII. The Court’s decision is an important decision that solidifies and expands the rights of homosexual and transgender individuals in the US.
USA: Trump administration removes protection for LGBTQ people in health care
The Trump Administration finalized a rule on Friday, which rolls back protections for LGBTQ people regarding health insurance and healthcare by changing the definition of “sex.”
The Department of Health and Human Services (HHS) stated in a press release that “HHS will enforce Section 1557 by returning to the government’s interpretation of sex discrimination according to the plain meaning of the word “sex” as male or female and as determined by biology.”
Formerly, Section 1557 of the Affordable Care Act defined “sex” in a way that protected people from discrimination based on gender identity and sexual orientation. The government’s new interpretation of the meaning of “sex” as male or female “as determined by biology” eliminates those protections.
The rule change will also significantly affect access to healthcare and health insurance. It will allow providers to deny service based on sexual orientation or gender identity and could drastically limit insurance coverage. These changes are especially notable considering the current pandemic and the pursuant necessity for many to seek medical care.
The Supreme Court is set to rule soon on two cases regarding the meaning of “sex” in employment discrimination. Those rulings may lay the groundwork for future lawsuits over the meaning of “sex” in Section 1557 or make such challenges even more difficult.
Switzerland: Second Instance Court confirms that social mother in same-sex partnership must pay child support after separation
The Bernese High Court has upheld on 26 February 2020 the respective parts of an earlier decision by the local court in Bern of 31 May 2019 – as reported here:
This decision is particularly interesting as Parliament currently discusses the status of the second woman (spouse) in a same-sex marriage when children were conceived through sperm donation by the biological mother.
Switzerland: One Chamber of Parliament makes it easier to change one’s official sex in registry (but children need parental consent) The vote was 31:14. The new rule would allow a civil servant to take the decision instead of a judge following a judicial procedures as it is the case now. Some NGOs fear however, that […]
The Second Section of the European Court of Human Rights has published its decision in the case of Carl Jóhann Lilliendahl v Iceland, in which it unanimously declared the application inadmissible.
The case, brought by a 74-year-old man, concerns a conviction in Iceland for anti-gay expression.
The facts In April 2015, the municipal council of the town of Hafnarfjörður, Iceland, approved a proposal to strengthen education and counselling in elementary and secondary schools on matters concerning those who identify themselves as lesbian, gay, bisexual or transgender. This was to be done in cooperation with the national LGBT association, Samtökin ‘78. The decision was reported in the news and led to substantial public discussion, including on the radio station Ú.S. and on a subsequent online news article where one of the initiators of the proposal, Mr. Ó.S.Ó., criticised the radio show for what he described as allowing people to phone in and express “clear prejudice and hate speech” without criticism from the show’s host. Mr Lilliendahl, the applicant in this case, wrote the following online comments in response to hearing the announcement: We listeners of [Ú.S.] have no interest in any [expletive] explanation of this kynvilla [derogatory word for homosexuality, literally ‘sexual deviation’] from [Ó.S.Ó.]. This is disgusting. To indoctrinate children with how kynvillingar [literally ‘sexual deviants’] eðla sig [‘copulate’, primarily used for animals] in bed. [Ó.S.Ó.] can therefore stay at home, rather than intrude upon [Ú.S.]. How disgusting. Samtökin ‘78 reported Mr Lilliendahl’s comments to the Reykjavík Metropolitan Police, claiming it violated Article 233(a) of the General Penal Code No.19/1940 which states:Anyone who publicly mocks, defames, denigrates or threatens a person or group of persons by comments or expressions of another nature, for example by means of pictures or symbols, for their … sexual orientation … or disseminates such materials, shall be fined or imprisoned for up to 2 years. In December 2017, the Supreme Court, overturning a judgment of the District Court, convicted Mr Lilliendahl, sentencing him to a fine of 100,000 Icelandic krónur (approximately 800 euros at the time).Complaints to the Court Mr Lilliendahl complained under Article 10 of the Convention that his conviction had violated his freedom of expression. Furthermore, Mr Lilliendahl complained under Article 14 in conjunction with Article 10 that he did not enjoy freedom of expression equally to persons with other opinions. Decision of the Court Article 17 Before considering Mr Lilliendahl’s complaints, the Court considered whether it should dismiss the application on the grounds that it was incompatible with Article 17 of the Convention. Article 17 was potentially applicable because it provides: Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention. The question for the Court was whether Mr Lilliendahl’s statements sought to stir up hatred or violence and whether, by making them, he attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it. To answer this question the Court relied upon its judgment in Perinçek v Switzerland (§ 114) in which it held that Article 17 is only applicable on an exceptional basis and in extreme cases and, in cases concerning Article 10, it should only be resorted to if it is immediately clear that the impugned statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention. The Court decided that Mr Lilliendahl’s statement could not be said to reach the high threshold for applicability of Article 17. The Court stated: Although the comments were highly prejudicial … it is not immediately clear that they aimed at inciting violence and hatred or destroying the rights and freedoms protected by the Convention (§ 26). On this basis, Mr Lilliendahl could invoke Article 10 and the Court was required to decide whether his conviction was compliant with it.
Article 10 The Court recognized that Mr Lilliendahl’s conviction undoubtedly constituted an interference with his freedom of expression, that the restriction placed on him was prescribed by law, and pursued the legitimate aim of protecting the rights of others. In considering whether the restriction was necessary in a democratic society, the Court examined the reasoning of the Supreme Court of Iceland that had convicted Mr Lilliendahl and concluded that it had taken into account the Court’s relevant case-law and acted within its margin of appreciation. Furthermore, the Supreme Court’s assessment of the nature and severity of the comments was not manifestly unreasonable and it had adequately balanced Mr Lilliendahl’s personal interests against the more general public interest in the case encompassing the rights of gender and sexual minorities.
Recalling the principle of subsidiarity – which means that it is not for the Court to substitute its own assessment of the merits for that of the Supreme Court – the Court could find no strong reasons to reach a different conclusion to the national authorities.
The Court therefore decided that the complaint under Article 10 was manifestly ill-founded and rejected it. Article 14 The Court reached the same conclusion in respect of Mr Lilliendahl’s complaint under Article 14 in conjunction with Article 10 deciding that, there being no appearance of a violation of these provisions, the complaint was manifestly ill-founded and rejected it.
Comment The most striking aspect of the Court’s decision is its approach to considering the expression of “hatred” against people on the grounds of sexual orientation.
The Court appears to have developed its approach to how it designates “hate speech” directed at sexual minorities. Eight years ago, in a case very similar to this one, the Court described anti-gay expression as “serious and prejudicial allegations” but stopped short of describing it as “hate speech” (Vejdeland v Sweden, § 54). The Court has now clarified its position on hatred, stating that it now recognizes that “hate speech” falls into two categories: the first category is the gravest forms of hate speech, which the Court considers to fall under Article 17 and are excluded entirely from the protection of Article 10; the second category is comprised of “less grave” forms of hate speech which the Court does not consider to fall entirely outside the protection of Article 10, but which it considers permissible for the Contracting States to restrict. Applying this categorisation to the case, the Court agreed with the Supreme Court’s assessment that Mr Lilliendahl’s comments were “serious, severely hurtful and prejudicial” and, as such, fell clearly under the second category of “hate speech”. The clear designation of Mr Lilliendahl’s comments as “hate speech” is to be welcomed. As the Court noted, Mr Lilliendahl was promoting “intolerance and detestation of homosexual persons” (§ 38) and, therefore, it is appropriate to describe this explicitly as “hate”.
From a case law perspective, this decisively moves the Court’s jurisprudence beyond the Vejdeland judgment, which created uncertainty as to whether anti-gay expression was, in fact, hate speech and raised questions about whether it should be treated as such for the purposes of examining freedom of expression claims under the Convention.
The Court has also moved beyond the Vejdeland judgment in another important way by stating that, whilst Mr Lilliendahl’s comments were made “as a member of the general public not expressing himself from a prominent platform likely to reach a wide audience”, and “not directed, in particular, at vulnerable groups or persons”, his comments still amounted to “hate speech” (§ 39). This decisively moves the Court beyond the position established in Vejdeland in which the manner of delivery of anti-gay expression was central to classifying it and, ultimately, determining whether it received the protection of Article 10. What is less welcome is the Court’s decision not to place Mr Lilliendahl’s comments in the first category of hate speech. I am not convinced by the Court’s conclusion that Mr Lilliendahl’s comments should not be classified as a “grave” form of hate speech that should fall under Article 17 and, as a consequence, outside of the sphere of protection which the Convention offers. In my view, Mr Lilliendahl’s comments could be argued to constitute an extremely grave form of hatred against gay people. Mr Lilliendahl described homosexuality as sexual deviation akin to sex between non-human animals, and any public discussion of it to be disgusting and an indoctrination of children. As such, it could plausibly be argued that Mr Lilliendahl’s use of Article 10, to defend his statements, was an attempt to, as the Court would put it, “deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention”. In other words, Mr Lilliendahl could be said to be attempting to use Article 10 to allow him to destroy or limit the rights and freedoms of others and, in accordance with Article 17, should not be able to invoke Article 10 to protect himself. Obviously, one of the oldest established principles of the Court is that freedom of expression constitutes one of the essential foundations of a democratic society and “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population” – these are the “demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society'” (Handyside v the United Kingdom, § 49). However, the Court has also held that the “abuse of freedom of expression is incompatible with democracy and human rights and infringes the rights of others” (Witzsch v Germany).
Clearly, the Court must carefully search for where the line is drawn between the right to freedom of expression and expression deemed to be an abuse of that freedom. In my view, if a person is describing gay people in the way Mr Lilliendahl did, they are engaging in expression which is not merely offensive, shocking or disturbing but is actually destructive of the rights of others.
My view is that the Court needs to more robustly justify why it does not consider statements like those made by Mr Lilliendahl to constitute the most grave forms of hatred. We live in a time when, by virtue of mass communication and social media, gay people are, on a daily basis, described in the terms that Mr Lilliendahl used, as sub-human animals. The widespread prevalence of such claims, and the fact that they are commonplace in European societies, should not result in them being accepted as low grade hate speech. Such claims, on the contrary, are a key way in which endemic homophobia is sustained and gay people are routinely excluded from fully participating in society.
The Court is now obviously prepared to decisively reject Article 10 claims by those who engage in anti-gay hate speech, and it is noteworthy that it has done so in this case at the admissibility stage, thereby denying Mr Lilliendahl a full consideration of the merits. But why not take the next step and declare, under Article 17, that Mr Lilliendahl was, in fact, using Article 10 as a cloak to protect himself and his ambition to limit the rights and freedoms of gay people?
This is not a narrow legal point. If the Court took a much stronger approach to classifying anti-gay speech as hatred that cannot attract the protection of Article 10, this would encourage Contracting States to more robustly regulate such speech.
The Second Section of the European Court of Human Rights has published its decision in the case of Carl Jóhann Lilliendahl v Iceland, in which it unanimously declared the application inadmissible.
The case, brought by a 74-year-old man, concerns a conviction in Iceland for anti-gay expression. The facts In April 2015, the municipal council of the town of Hafnarfjörður, Iceland, approved a proposal to strengthen education and counselling in elementary and secondary schools on matters concerning those who identify themselves as lesbian, gay, bisexual or transgender. This was to be done in cooperation with the national LGBT association, Samtökin ‘78. The decision was reported in the news and led to substantial public discussion, including on the radio station Ú.S. and on a subsequent online news article where one of the initiators of the proposal, Mr. Ó.S.Ó., criticised the radio show for what he described as allowing people to phone in and express “clear prejudice and hate speech” without criticism from the show’s host. Mr Lilliendahl, the applicant in this case, wrote the following online comments in response to hearing the announcement: We listeners of [Ú.S.] have no interest in any [expletive] explanation of this kynvilla [derogatory word for homosexuality, literally ‘sexual deviation’] from [Ó.S.Ó.]. This is disgusting. To indoctrinate children with how kynvillingar [literally ‘sexual deviants’] eðla sig [‘copulate’, primarily used for animals] in bed. [Ó.S.Ó.] can therefore stay at home, rather than intrude upon [Ú.S.]. How disgusting. Samtökin ‘78 reported Mr Lilliendahl’s comments to the Reykjavík Metropolitan Police, claiming it violated Article 233(a) of the General Penal Code No.19/1940 which states:Anyone who publicly mocks, defames, denigrates or threatens a person or group of persons by comments or expressions of another nature, for example by means of pictures or symbols, for their … sexual orientation … or disseminates such materials, shall be fined or imprisoned for up to 2 years. In December 2017, the Supreme Court, overturning a judgment of the District Court, convicted Mr Lilliendahl, sentencing him to a fine of 100,000 Icelandic krónur (approximately 800 euros at the time).Complaints to the Court Mr Lilliendahl complained under Article 10 of the Convention that his conviction had violated his freedom of expression. Furthermore, Mr Lilliendahl complained under Article 14 in conjunction with Article 10 that he did not enjoy freedom of expression equally to persons with other opinions. Decision of the Court Article 17 Before considering Mr Lilliendahl’s complaints, the Court considered whether it should dismiss the application on the grounds that it was incompatible with Article 17 of the Convention. Article 17 was potentially applicable because it provides: Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention. The question for the Court was whether Mr Lilliendahl’s statements sought to stir up hatred or violence and whether, by making them, he attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it. To answer this question the Court relied upon its judgment in Perinçek v Switzerland (§ 114) in which it held that Article 17 is only applicable on an exceptional basis and in extreme cases and, in cases concerning Article 10, it should only be resorted to if it is immediately clear that the impugned statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention. The Court decided that Mr Lilliendahl’s statement could not be said to reach the high threshold for applicability of Article 17. The Court stated: Although the comments were highly prejudicial … it is not immediately clear that they aimed at inciting violence and hatred or destroying the rights and freedoms protected by the Convention (§ 26). On this basis, Mr Lilliendahl could invoke Article 10 and the Court was required to decide whether his conviction was compliant with it.
Article 10 The Court recognized that Mr Lilliendahl’s conviction undoubtedly constituted an interference with his freedom of expression, that the restriction placed on him was prescribed by law, and pursued the legitimate aim of protecting the rights of others. In considering whether the restriction was necessary in a democratic society, the Court examined the reasoning of the Supreme Court of Iceland that had convicted Mr Lilliendahl and concluded that it had taken into account the Court’s relevant case-law and acted within its margin of appreciation. Furthermore, the Supreme Court’s assessment of the nature and severity of the comments was not manifestly unreasonable and it had adequately balanced Mr Lilliendahl’s personal interests against the more general public interest in the case encompassing the rights of gender and sexual minorities.
Recalling the principle of subsidiarity – which means that it is not for the Court to substitute its own assessment of the merits for that of the Supreme Court – the Court could find no strong reasons to reach a different conclusion to the national authorities.
The Court therefore decided that the complaint under Article 10 was manifestly ill-founded and rejected it. Article 14 The Court reached the same conclusion in respect of Mr Lilliendahl’s complaint under Article 14 in conjunction with Article 10 deciding that, there being no appearance of a violation of these provisions, the complaint was manifestly ill-founded and rejected it.
Comment The most striking aspect of the Court’s decision is its approach to considering the expression of “hatred” against people on the grounds of sexual orientation.
The Court appears to have developed its approach to how it designates “hate speech” directed at sexual minorities. Eight years ago, in a case very similar to this one, the Court described anti-gay expression as “serious and prejudicial allegations” but stopped short of describing it as “hate speech” (Vejdeland v Sweden, § 54). The Court has now clarified its position on hatred, stating that it now recognizes that “hate speech” falls into two categories: the first category is the gravest forms of hate speech, which the Court considers to fall under Article 17 and are excluded entirely from the protection of Article 10; the second category is comprised of “less grave” forms of hate speech which the Court does not consider to fall entirely outside the protection of Article 10, but which it considers permissible for the Contracting States to restrict. Applying this categorisation to the case, the Court agreed with the Supreme Court’s assessment that Mr Lilliendahl’s comments were “serious, severely hurtful and prejudicial” and, as such, fell clearly under the second category of “hate speech”. The clear designation of Mr Lilliendahl’s comments as “hate speech” is to be welcomed. As the Court noted, Mr Lilliendahl was promoting “intolerance and detestation of homosexual persons” (§ 38) and, therefore, it is appropriate to describe this explicitly as “hate”.
From a case law perspective, this decisively moves the Court’s jurisprudence beyond the Vejdeland judgment, which created uncertainty as to whether anti-gay expression was, in fact, hate speech and raised questions about whether it should be treated as such for the purposes of examining freedom of expression claims under the Convention.
The Court has also moved beyond the Vejdeland judgment in another important way by stating that, whilst Mr Lilliendahl’s comments were made “as a member of the general public not expressing himself from a prominent platform likely to reach a wide audience”, and “not directed, in particular, at vulnerable groups or persons”, his comments still amounted to “hate speech” (§ 39). This decisively moves the Court beyond the position established in Vejdeland in which the manner of delivery of anti-gay expression was central to classifying it and, ultimately, determining whether it received the protection of Article 10. What is less welcome is the Court’s decision not to place Mr Lilliendahl’s comments in the first category of hate speech. I am not convinced by the Court’s conclusion that Mr Lilliendahl’s comments should not be classified as a “grave” form of hate speech that should fall under Article 17 and, as a consequence, outside of the sphere of protection which the Convention offers. In my view, Mr Lilliendahl’s comments could be argued to constitute an extremely grave form of hatred against gay people. Mr Lilliendahl described homosexuality as sexual deviation akin to sex between non-human animals, and any public discussion of it to be disgusting and an indoctrination of children. As such, it could plausibly be argued that Mr Lilliendahl’s use of Article 10, to defend his statements, was an attempt to, as the Court would put it, “deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention”. In other words, Mr Lilliendahl could be said to be attempting to use Article 10 to allow him to destroy or limit the rights and freedoms of others and, in accordance with Article 17, should not be able to invoke Article 10 to protect himself. Obviously, one of the oldest established principles of the Court is that freedom of expression constitutes one of the essential foundations of a democratic society and “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population” – these are the “demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society'” (Handyside v the United Kingdom, § 49). However, the Court has also held that the “abuse of freedom of expression is incompatible with democracy and human rights and infringes the rights of others” (Witzsch v Germany).
Clearly, the Court must carefully search for where the line is drawn between the right to freedom of expression and expression deemed to be an abuse of that freedom. In my view, if a person is describing gay people in the way Mr Lilliendahl did, they are engaging in expression which is not merely offensive, shocking or disturbing but is actually destructive of the rights of others.
My view is that the Court needs to more robustly justify why it does not consider statements like those made by Mr Lilliendahl to constitute the most grave forms of hatred. We live in a time when, by virtue of mass communication and social media, gay people are, on a daily basis, described in the terms that Mr Lilliendahl used, as sub-human animals. The widespread prevalence of such claims, and the fact that they are commonplace in European societies, should not result in them being accepted as low grade hate speech. Such claims, on the contrary, are a key way in which endemic homophobia is sustained and gay people are routinely excluded from fully participating in society.
The Court is now obviously prepared to decisively reject Article 10 claims by those who engage in anti-gay hate speech, and it is noteworthy that it has done so in this case at the admissibility stage, thereby denying Mr Lilliendahl a full consideration of the merits. But why not take the next step and declare, under Article 17, that Mr Lilliendahl was, in fact, using Article 10 as a cloak to protect himself and his ambition to limit the rights and freedoms of gay people?
This is not a narrow legal point. If the Court took a much stronger approach to classifying anti-gay speech as hatred that cannot attract the protection of Article 10, this would encourage Contracting States to more robustly regulate such speech.
Switzerland inches closer to marriage equality and same-sex adoption as one chamber of parliament backs crucial bill
The second chamber (which is composed of more conservative membres) still has to agree. Conservative right-wing parties have announced that they will collect signatures to ask for a popular vote (50’000 are needed).
The major debate is on the inclusion of access to sperm donation by Lesbian Couples. I (and others) had written that this is in line with our Constitution and the ECHR. These legal arguments were not of major importance in the Parliamentary debates though (unsurprisingly).
Switzerland has moved a step closer to same-sex marriage (Pexels)
Switzerland has inched closer to marriage equality and same-sex parenting after the country’s National Council approved draft legislation.
The Marriage for All bill won broad support across the political spectrum in Switzerland, which currently has civil partnerships.
Just one party opposed the bill – the right-wing Swiss People’s Party – however, the Christian Democratic Party said it would only support the legislation if sperm donation for lesbian couples was excluded.
The lower house of parliament voted in favour of the draft legislation yesterday, according to TheLocal.
The bill was passed by 132 to 52 votes, with 13 abstentions. It will now go to the upper house for a vote.
The marriage bill in Switzerland will also give same-sex couples adoption rights.
If it is passed, the bill will guarantee the right to marry regardless of gender in Switzerland – but there are a number of other benefits attached too.
The bill would also allow female same-sex couples to access sperm donation and would allow all same-sex couples to jointly adopt children.
However, campaigners have warned that the battle is not yet won for marriage equality.
While the legislation has won broad political support, it has a potentially arduous road ahead before it can become law.
The bill will next go to the Council of States, the upper house of parliament in Switzerland, and they are not expected to vote on it until after summer.
The bill will most likely have to go to a public vote.
Furthermore, if it is approved by the upper house, the bill will then be put to the people in the form of a referendum (if 50’000 signatures are collected to ask for the vote), The Local reports.
A referendum date cannot be set until the upper house has approved the legislation.
Switzerland’s minister for justice Karin Keller-Sutter expressed her support for the bill, saying the law “should be revised in stages and same-sex marriage introduced as soon as possible”.
The move comes just months after the people of Switzerland voted in favour of an anti-homophobia bill.
The country went to the polls in February of this year to vote to outlaw discrimination and hatred based on sexual orientation.
Switzerland has typically lagged behind on LGBT+ rights, however campaigners in the country are hopeful that progress could be on the horizon.
Interesting Exhibition at the Emigration Museum in Hamburg: Homosexuality as a reason for flight or emigration Verfolgung wegen der sexuellen Orientierung gehört zu den Gründen, warum Menschen ihre Heimat verlassen. Erniedrigung, gesellschaftliche Stigmatisierung, Folter oder Tod drohen ihnen. Letzter Ausweg ist die Flucht und damit die Auswanderung. Zusammen mit der Initiative Rainbow Refugees (Stories) gibt […]
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 