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.
The decision comes in a case involving a Mississippi law banning all abortions after 15 weeks of pregnancy. Mississippi’s Gestational Age Act, passed in 2018, outlaws abortions after 15 weeks with only a few exceptions, such as when the mother’s life is endangered.
Jackson Women’s Health Organization—the only abortion provider in the state—challenged the law. The trial court granted summary judgment for the plaintiffs, blocking the law. Thomas Dobbs, the State Health Officer for the Mississippi Department of Health, then appealed to the US Court of Appeals for the Fifth Circuit. The appeals court concluded that the law was unconstitutional. Dobbs then appealed the case to the Supreme Court, which agreed to take up the case last May.
In an opinion by Justice Samuel Alito, the court upheld Mississippi’s law and found that the US Constitution does not protect a right to abortion:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” The right to abortion does not fall within this category.
Alito also compared the decision in Roe to Plessy v. Ferguson, the 1896 case that upheld racial segregation.
Justice Clarence Thomas filed a concurring opinion to emphasize his view that substantive due process should be “elimate[d] … from our jurisprudence at the earliest opportunity.” He called on the court to reconsider decisions in Griswold v. Connecticut, which protects the right to contraception, Lawrence v. Texas, the right to same-sex intimacy, and Obergefell v. Hodges, the right to same-sex marriage.
Justice Brett Kavanaugh filed a concurring opinion “to explain [his] additional views about why Roe was wrongly decided, why Roe should be overruled at this time, and the future implications of today’s decision.”
Chief Justice John Roberts also filed a concurring opinion. He would have upheld Mississippi’s abortion restriction but would not have gone so far as to overturn Roe, as it was not necessary to decide this case.
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan filed a strongly worded dissent. They concluded, “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”
With this decision, abortion regulation will now be left up to individual states. While some states have recently passed measures enshrining abortion protections into law, many others will now seek to ban abortion entirely.
Ursula von der Leyen, European Commission President
Cc: Věra Jourová, Commission Vice-President, Values and Transparency
Cc: Didier Reynders, Commissioner for Justice
Cc: Helena Dalli, Commissioner for Equality
Brussels, 7 June 2022
Subject: (Non-)Implementation of the Coman & Hamilton case 4 years after the CJEU decision
Dear Commission President, Ursula von der Leyen,
This past Sunday marked the 4-year anniversary of the CJEU’s Coman & Hamilton landmark decision.[1] On 5 June 2018, the CJEU ruled that the term spouse includes same-sex spouses under EU freedom of movement law. This decision provided a much-awaited clarification of EU free movement law and its application to rainbow families, which enshrined the need to respect their freedom of movement as much as for any other EU citizen. Coman & Hamilton remains a landmark decision – if anything, for the lack of its proper implementation to this day by the Romanian authorities.
Four years on, Clai Hamilton, spouse of Romanian citizen Adrian Coman, has not yet been granted residency in Romania. The couple has not only had no redress after ten years of strategic litigation efforts, but additionally had to resort to the European Court of Human Rights in pursuit of effective redress. In the meanwhile, the European Commission has remained blatantly silent on any possibility for infringement.
The problem
The Romanian Constitutional Court ruling stipulated that the ban to recognise same-sex marriage conducted abroad is constitutional only insofar as it does not preclude married same sex couples from exercising their freedom of movement. As such, these couples should, even if not given the opportunity to transcribe their marriage certificates, be allowed to obtain residency permits. This ruling, coupled with the CJEU judgment of 5 June 2018 is still in contradiction with the existing legislation on freedom of movement in Romania.
Namely, the GEO (Government Emergency Ordinance) 102/2005 on freedom of movement on the territory of Romania of citizens of EU, EEA and Swiss Confederation Member States excludes the Romanian citizens in article 1. b. The GEO (Government Emergency Ordinance) 194/2002 imposes additional conditions than those provided in Directive 2004/38/EC (the free movement Directive). In particular, based on GEO 194/2002, same-sex spouses are still not treated as spouses four years after the Coman & Hamilton judgment – their marriage certificate is not taken into account (based on the Civil Code provisions as shown below); they are treated as other family members than spouses and they are required evidence of residence in another EU Member State for both of them together. The fact is that the Romanian Civil Code not only defines marriage as the union of a man and a woman, but also stipulates that “marriage between persons of the same sex shall be prohibited” and, even more specifically, “marriages between persons of the same sex entered into or contracted abroad by Romanian citizens or by foreigners shall not be recognised in Romania”. As long as these stipulations remain in the Romanian Civil Code, the implementation of Coman & Hamilton is impossible.
The Commission’s (in)action
In the LGBTIQ Equality Strategy,[2] the Commission committed to “continue to ensure the correct application of free movement law, including to address specific difficulties preventing LGBTIQ people and their families from enjoying their rights.” It goes on to mention the Coman & Hamilton case, mentioning that it will take legal action if necessary.
Several actions have since taken place since:
An official complaint (CHAP(2019)3147) was submitted by ACCEPT and ILGA-Europe to the Commission regarding a similar case to Coman & Hamilton’s. One partner in that case was threatened with deportation. To this day, the Commission provided no official reply to this complaint.
In a September 2021 resolution, the Parliament called on the Commission[3] to start infringement procedures against Romania over its ongoing failure to comply with the judgement. The Commission took no action to follow Parliament’s call.
On November 2021, a parliamentary Written Question co-signed by 21 MEPs enquired the EC about the status of play on opening infringement procedures.[4]The Commission’s answer is non-informative and shows no willingness to open infringement procedures.
We are aware of the Commission’s plan to issue guidelines on free movement – lest we are ill-informed, these will remain, as the name indicates, guidelines, i.e. not enforcement tools. In order to ensure that all EU citizens can effectively enjoy their right to freedom of movement,the Commission needs to use its powers as Guardian of the Treaties to level legal action if need be and to protect the credibility of the Court.
In light of the former:
Are the Commission’s commitments to protect freedom of movement for rainbow families void of accountability or will the Commission initiate an infringement procedure over Romania’s failure to implement judgement C-673/16?
For future reference, what is the adequate duration of a Member State’s possibility to violate EU law before this violation becomes problematic?
What strategy is the Commission pursuing to ensure that freedom of movement is effectively respected and protected in the EU, e.g. through appropriate legal action?
Yours sincerely,
Marc ANGEL, Co-Chair, LGBTI Intergroup (S&D, Luxembourg)
Terry REINTKE, Co-Chair, LGBTI Intergroup (Greens-EFA Vice-President, Germany)
USA: Biden signs executive order to advance LGBTQI+ equality
US President Joe Biden Wednesday signed an executive order which directs key federal agencies to advance LGBTQI+ equality and protect communities from hateful attacks.
Biden’s executive order, which was signed during Pride Month, will combat historic anti-LGTBQI+ laws passed across the US. The executive order will address discriminatory legislative attacks, prevent conversion therapy, safeguard health care and mental health, support LGBTQI+ children and families, and advance LGBTQI+ equality.
Biden outlines that these objectives will be achieved through a variety of efforts across various US federal agencies. In regards to countering harmful state and local laws, “[w]ithin 200 days of the date of this order, the Secretary of Education shall develop and release sample policies for supporting LGBTQI+ students’ well-being and academic success in schools and educational institutions.”
Biden 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.”
In order to provide counseling and resources “[t]he Secretary of [Health and Human Services] shall seek to expand the availability of family counseling and support programs in federally funded health, human services, and child welfare programs[.]”
Within one year of this executive order, Biden ordered that individuals across various US federal agencies submit a report which will detail the implementation of this order.
Anti-LGBTQI+ bills that have been been legislated across the US include bills that restrict healthcare for transgender youth, single-sex facility restrictions, exclude transgender youth from athletics, provide school or curriculum restrictions, and restrict access to IDs. Additionally, Florida faced controversy over its Parental Rights in Education Bill, which is commonly referred to as the “Don’t Say Gay” bill. A similar bill was advanced in North Carolina.
In further support of the LGBTQI+ community, “[t]he State Department announced it will allow U.S. embassies and diplomatic outposts to fly the Pride flag on the same flagpole as the U.S. flag at their embassy or consulate.”
On Biden’s first day in presidential office, he signed another executive order on January 20, 2021 to prevent and combat discrimination against LGBTQI+ Americans. This executive order specifically addressed enforcement regarding prohibition of sex discrimination based on gender identity or sexual orientation.
Greece – Signing of the Ministerial Decision for the revised Blood Donation Form that disconnects the blood donation from the sexual orientation of the candidate blood donor
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 