Most governments around the world are mobilizing all their resources in the fight against the COVID-19 pandemic. They reach across the aisle in an effort to tackle one of the greatest challenges humanity has faced in recent history.

But here in Hungary, our Prime Minister Viktor Orbán has unashamedly used the situation as a pretext to grab unlimited power, enabling him to rule by decree. And while everyone is distracted by the coronavirus, the government also submitted a bill that, among other things, would make it impossible for transgender people to legally change their gender.

If passed, the law would force trans people to live with documents that do not match their true identity. It would expose them to discrimination in employment, housing, and access to services and official procedures. It would also clear the way for medical practice, including surgery, harmful to intersex children.

That’s why I’ve launched a petition to the Hungarian government. Several thousand people have signed it since I launched it earlier this week, but we’ll need many more signatures to break through the noise and get the government’s attention.

Can you sign my petition, Andreas?

OAS Publishes Guide on Safeguarding Rights of Vulnerable Groups (such as women, indigenous peoples, and the LGBTI community) in Context of COVID-19 Response

By: Justine N. Stefanelli | April 7, 2020 – 1:18pm

On April 7, 2020, the Organization of American States published a “Practical Guide to Inclusive Rights-Focused Responses to COVID-19 in the Americas.” As explained in a press release from the OAS, the guide addresses the concern that situation for vulnerable people, such as women, indigenous peoples, and the LGBTI community, worsens in the context of emergency situations, such as the current pandemic. Therefore, the guide stresses the need for states to emphasize the protection of the right to health of vulnerable groups. It consists of ten chapters, each of which addresses specific groups of vulnerable people and issues such as the right to education for children, responding inclusively to internally displaced persons, migrants, and refugees, and how to ensure that prevention, containment, and mitigation efforts include people living in poverty and extreme poverty. 

The guide is currently available only in Spanish, but an English version is forthcoming.

IACHR finds Peru responsible for arbitrary detention and rape of transgender woman

The Inter-American Court of Human Rights (IACHR) found in a decision released Monday that Peru owed damages to Azul Rojas Martin, a transgender woman who was imprisoned and tortured by Peruvian authorities.

Rojas Martin was detained by authorities in February 2008 striped of her clothes and beat as authorities screamed and insulted her for being transgender.

In its decision, the court noted the long history of discrimination and abuse against LGBT people. They also reiterated that LGBT people are part of a protected class and that discrimination based on sexual orientation or gender identity will not be tolerated by the court.

The court ordered Peru to investigate and try the officers who attacked Rojas Martin. In addition, they are required to create an efficient way to investigate and punish people who commit anti-LGBT crimes. They also are asked to create educational programs for offenders to create awareness about the LGBT community. Finally, they are required to pay for Rojas Martin’s therapy and an undisclosed amount of money in reparations.

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ECtHR: Beizaras and Levickas v. Lithuania: ILGA-Europe’s Work On a Landmark European Hate Speech Judgement

by ILGA-Europe

On 14 January 2020, the European Court of Human Rights (ECRI) delivered its judgements in the case of Beizaras and Levickas against Lithuania. An analysis of the content of the decision highlights how the ECRI 2016 Report on Lithuania and its 2019 Conclusions on the implementation of the recommendations in respect of Lithuania positively influenced the outcome of the case.

LGBTI people should be and feel safe online. As every other citizen, we should be able to use social media and share online without fearing a backlash. That’s not always the case, which is why many activists continue to fight and to push for legal frameworks that protect all citizens from discrimination. In ILGA-Europe we work towards advancing human rights, one litigation case at a time. 

Violation of rights

The landmark case of Beizaras and Levickas v. Lithuania originated after one of the applicants posted a photograph of him kissing his male partner (the second applicant) on his Facebook page, which led to hundreds of online hate comments. The European Court of Human Rights found Lithuania’s failure to investigate online hateful comments against the gay couple to violate their rights to private and family life (Article 8) and to effective remedy (Article 13) as well as being discriminatory on the ground of sexual orientation (Article 14).

The European Commission against Racism and Intolerance (ECRI) is a Council of Europe human rights monitoring body. As part of its mandate it issues recommendations to address the issues of racism and intolerance it identifies in member states. ECRI’s General Policy Recommendation No. 15 (2015) on Combating Hate Speech is of particular importance to the work of ILGA-Europe and its member organisations.

Structure of a court’s judgement

To understand the importance of the ECRI report in the case of Beizaras and Levickas v. Lithuania, it is necessary to understand the structure of a Court’s judgement, which is composed of an assessment of firstly “The Facts” and secondly “The Law”. In the case at stake, the Facts section is sub-divided into:

1. The circumstances of the case;
2. Relevant domestic law and practice;
3. Relevant international materials.

The Law section comprises:

1. Alleged violation of article 14 of the Convention, taken in conjunction with Article 8 (A. Admissibility; B. Merits) and
2. Alleged violation of Article 13 of the Convention (A. Admissibility; B. Merits).

It is to be noted that ILGA-Europe and partner organisations also referenced the ECRI report in their written submission to the Court. In its judgement, the Court relied on the intervention, especially on the arguments based on the ECRI report.

The Court indicates, before starting the legal assessment of the case, that the Report will be part of the authoritative documents it will rely on to decide on the various conventional violations.

Concretely, the ECRI Report is part of the “III. Relevant international materials” (paras 56-62 of the judgement). In this section of the judgement, the Court extensively quotes relevant parts of the ECRI 2016 Report (paras. 22, 25-29, 31-33, 35-38, 53-59, 90-92 of the Report) and also refers to the 2019 “Conclusions on the implementation of the recommendations in respect of Lithuania” (para 62 of the judgement). The difference in length with the other “relevant international materials” referred to is striking.

The Court further refers to the ECRI Report in several parts of the judgement when assessing “The Law,” to decide both on the admissibility and on the merits of the case.

Admissiblity

As regard admissibility, the question arose whether the Court was competent to hear the case even though the national complaint was brought by an Association rather than physical persons (the same-sex couple). The Court relied on the ECRI report to establish that the contextual situation explained why the victims, the same-sex couple, were not in a position to submit a complaint at the national level since there were risks of retaliation. The Court hence decided that the complaint was admissible.

The Report is also part of the reasoning of the Court on the merits of the case, and it influences its findings. The Court referred to the ECRI Report both in its analysis of I) the violation of Article 14 of the convention taken in conjunction with article 8 and II) the violation of article 13 of the Convention.

Concerning Articles 14 and 8, the ECRI report highlights that hate speech is a serious issue in Lithuania and that most of it takes place on the Internet. This enables the Court to reject the Government’s argument according to which hate comments on Facebook don’t reach the required threshold of harmfulness and seriousness such as to require its intervention.

The Court considered that the comments constituted a threat to the applicants’ physical and mental integrity, and the lack of requisite protection, due to the discriminatory attitude of the authorities, constituted a breach of Article 14 taken in conjunction with Article 8 of the Convention.

Right to an effective remedy

As regard the Right to an effective remedy (Article 13), the Court first referred to the third-party intervention, specifically to its developments on the ECRI report. The latter concern the condemnation by ECRI of the Lithuanian Supreme Court’s practice of referring to “protection of public morals” to justify or condone incitement of hatred against LGBT people. The Court then relied heavily on the findings of the Report in its own assessment of a breach of Article 13.

The Court noted in particular the ECRI’s observation of a “growing level of intolerance against sexual minorities”; the law-enforcement authorities’ failure to acknowledge bias-motivation of hate crime; the “prejudicial attitude of the domestic court” and the “lack of comprehensive strategic approach to tackle the issue of …homophobic hate speech by the authorities”. This contextual information, together with the authorities’ attitude in the case at stake, led to the conclusion that the applicants were denied an effective domestic remedy in respect of their complaint, which constituted a violation of Article 13.

Breaches of the LGBTI community’s fundamental rights generally take place in a wider context of permanent multidimensional discrimination. This case highlights that up-to-date background information on the situation of the LGBTI community in the Member States of the Council of Europe is crucial to enable a rigorous assessment of applicants’ complaints and to hold States accountable.

Read ILGA-Europe’s joint intervention with partners here

Read the court’s judgement here

Right On: Fighting Online Hate Speech and Fake News in a Global Crisis Event Geneva Internet Platform Content challenges such as fake news, disinformation campaigns, and online hate speech are increasingly common these days. These challenges are far from recent developments; the outbreak of the coronavirus has only accelerated this ‘infodemic’, while the growth in […]

Online: Right On: Fighting Online Hate Speech and Fake News in a Global Crisis, 8 April 2020, 14:00-16:00 — International Law Association – Swiss Branch (since 1929)

USA: New York budget legalizes commercial surrogacy and outlaws “pink tax”

New York passed its 2020-2021 budget Thursday despite COVID-19 uncertainties. The New York State Assembly enacted legislative reforms alongside the budget. The most notable of these reforms include legalizing commercial surrogacy and outlawing the “pink tax.”

In legalizing commercial surrogacy, the state created a Surrogates’ Bill of Rights that ensures comprehensive health insurance and pregnancy termination rights for surrogates. Regarding the “pink tax,” the overpricing of products marketed towards women, New York has banned this overpricing and requires producers to disclose pricing information.

Governor Cuomo praised the New York State Assembly’s efforts on legislative reform alongside the budget during the COVID-19 outbreak:

This is a moment in history unlike any other, and government needs to function and deliver results for the people of this state now more than ever — and that’s exactly what we did with this budget. That the legislature and the Executive got this budget done with all of these policy initiatives is an extraordinary feat, and I praise Speaker Heastie, Leader Stewart-Cousins and every member of the legislature. It would have been very easy to say, ‘Oh, this is an extraordinary year; let’s just do the bare minimum and go home.’ We did the opposite. We said there is a lot of need and there are a lot of issues that need to be addressed, and we stepped up to the plate and we got it done. That it was done this year is really extraordinary.

Complimenting these two large reforms, the New York State Assembly additionally banned hydrofracking, outlawed e-cigarettes, and tightened gun control to exclude those who committed serious crimes in others states from New York gun licensing.

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8th European Transgender Council – 17-20 September 2020, Berlin, Germany

USA: FDA eases blood donation restrictions for gay men and other groups

The US Food and Drug Administration issued updated guidance on Thursday, amending restrictions so that certain blood donor groups are now subject to a three month waiting period instead of a 12 month deferral.

This guidance was issued in an attempt to address the blood supply shortage that has emerged due to the coronavirus pandemic.

Blood donations from certain groups have been restricted for decades. In 1985, the FDA recommended that “blood establishments indefinitely defer male donors who have had sex with another male, even one time, since 1977, due to the strong clustering of AIDS illness and the subsequent discovery of high rates of HIV infection in that population.” This ban on donations from gay male donors was heavily criticized for adding to social stigma and homophobic attitudes. In 2015, after reviewing data about partner fidelity and the prevalence of HIV infections, this policy was amended to change the indefinite deferral to a 12-month deferral. This change did not result in an increased risk of HIV in the blood supply, and many in the LGBTQ+ community have questioned the need for any deferral.

In an attempt to encourage blood donations during the COVID-19 pandemic, and based on “recently completed studies and epidemiologic data,” the FDA is now recommending that male donors wait a period of three months between sex with another male and blood donation. This change puts the US in step with current blood donation policies in Canada and the UK.

This three month deferral recommendation also applies to other restricted blood donor groups, including female donors who have had sex with men who are engaging in sex with other men; individuals who have had recent tattoos and piercings; and individuals who have traveled to regions with malaria. The FDA is additionally recommending no deferral for individuals “who were previously considered to have been exposed to a potential risk of transmission of Creutzfeldt-Jakob Disease.”

Although “[t]hese recommendations are expected to remain in place after the COVID-19 pandemic ends,” establishments that receive blood donations are “not required to implement the changes in the FDA recommendations.”

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CF – L’interdiction de la discrimination en raison de l’orientation sexuelle entrera en vigueur le 1er juillet

Berne, 03.04.2020 – À partir du 1er juillet 2020, il sera punissable de discriminer une personne en raison de son orientation sexuelle. Lors de sa séance du 3 avril 2020, le Conseil fédéral a arrêté cette date pour l’entrée en vigueur des normes pénales correspondantes. Lors de la votation du 9 février 2020, le peuple a clairement confirmé la décision du Parlement d’étendre la norme antiracisme du code pénal et du code pénal militaire.

UK woman wins claim for NHS to pay US surrogacy costs after wrong treatment:

The UK Supreme Court on Wednesday awarded damages to a woman for surrogacy costs after she was left infertile when the Whittington Hospital National Health Service (NHS) trust failed to detect signs of cervical cancer.

The woman had tests and underwent biopsies in 2008 and 2012, all of which were wrongly reported as showing negative for cancer. The error was discovered in 2013, when the woman was told that she had cancer and was referred to another hospital. The hospital admitted negligence, noting a 95 percent chance that the woman would have not developed cancer at all had the appropriate action been taken in 2008.

In June 2013, the woman underwent ovarian stimulation and egg collection. Due to surgery and chemotherapy as a result of cervical cancer, her womb was damaged and she could not bear children. Looking to use a surrogate from California, she sought to claim damages to pay for the cost.

The Supreme Court noted that government policy in the UK had moved “in the direction of supporting surrogacy arrangements in appropriate cases.” Lady Hale stated that it was possible to claim damages for the cost of surrogacy arrangements, and it “is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy.”

However, in awarding damages to this woman, the court noted that damages will not always be awarded. There are “some important limiting factors” that must be considered: the proposed treatments must be reasonable; it must be reasonable for the claimant to seek foreign commercial arrangements rather than arrangements within the UK; and the costs involved must be reasonable.

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