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.
Japan court urges government to recognize legality of same-sex marriage
The Fukuoka High Court ruled that Japan’s current policy against same-sex marriage is discriminatory and unconstitutional on Friday. This marks the third time a High Court in the country has declared the ban on same-sex marriage unconstitutional, and this ruling specifically calls on the government to undertake necessary legal reforms.
In this case, three couples living in Fukuoka and Kumamoto whose same-sex marriage registrations were rejected, sought compensation from the government. The six appellants claimed that the Civil Code of Japan and the Family Registration Act, which ban same-sex marriage, violates the Japanese constitution. This appeal followed the Fukuoka District Court’s ruling that the government was not required to take immediate legislative action, despite being in a “state of unconstitutionality.”
Presiding Judge Okada Takeshi highlighted the importance of legal recognition for same-sex couples, in light of the constitutional principles of individual dignity and gender equality. The court referenced Article 13 of the Constitution for the first time, stating that the absence of a legal framework for same-sex marriage denies individuals in same-sex relationships a means to pursue happiness.
He emphasized that sexual orientation is determined before birth or early in life and is not a choice that can be changed by will or psychiatric methods. Thus, the desire to pursue happiness through the establishment of a family is the same for both heterosexual and same-sex couples.
The government argued on definition of marriage under Article 24 of the Constitution, citing the terms “both sexes” and “husband and wife.” In response, the court clarified that the legislative intention of Article 24 was not to prohibit same-sex marriage but to eliminate the historical subordination of wives in the family system. “There is no longer any reason to not legally recognize marriage between same-sex couples,” Judge Okeshi concluded.
After the ruling, four plaintiffs hailed the decision outside the court. They held a sign , questioning why Japan’s parliament has not yet legalized same-sex marriage.
This ruling aligns with two prior High Court decision in Sapporo and Tokyo, which similarly deemed the government’s stance on same-sex marriage unconstitutional.
Ugandan court awards $40K to men tortured after arrest for alleged homosexuality
A Ugandan court on Nov. 22 awarded more than $40,000 (Shs 150 million) to 20 men who police tortured after their 2020 arrest for alleged homosexuality.
The High Court of Uganda’s Civil Division ruling notes “police and other state authorities” arrested the men in Nkokonjeru, a town in central Uganda, on March 29, 2020, and “allegedly tortured.”
“They assert that on the morning of the said date their residence was invaded by a mob, among which were the respondents, that subjected them to all manner of torture because they were practicing homosexuality,” reads the ruling. “The alleged actions of torture include beating, hitting, burning using a hot piece of firewood, undressing, tying, biding, conducting an anal examination, and inflicting other forms of physical, mental, and psychological violence based on the suspicion that they are homosexuals, an allegation they deny.”
UN expert urges Poland to address discrimination and violence against LGBT community
A group of UN experts urged Poland to address entrenched discrimination and violence against the LGBT community through swift legislative and social reforms on Friday. The expert’s statement follows a comprehensive country visit, between November 18 and 29, that revealed both promising progress and persistent challenges.
The UN expert’s report highlights the enduring effects of discriminatory practices, such as the symbolic but impactful “LGBT-ideology free zones” established by over 100 local councils between 2015 and 2023. Although these resolutions lacked legal status, their existence underscored systemic prejudice and exacerbated the mental health challenges faced by the LGBT community. Activism and international pressure eventually led to the abandonment of these zones, but residual effects linger.
Significant gaps remain in areas such as education, employment, and healthcare. Schools lack adequate anti-discrimination training, leaving teachers ill-equipped to combat homophobia and transphobia. In workplaces, fear of discrimination prompts many LGBT individuals to hide their identities, while transgender people face additional barriers in accessing housing and healthcare. Recent legislative proposals aim to address these issues, but implementation remains uneven.
The report also draws attention to the challenges faced by same-sex couples, whose unions are neither recognised nor protected in Poland. Two recent European Court of Human Rights rulings, Przybyszewska and others v. Poland and Formela and others v. Poland, have found a breach of the right to private and family life under Article 8 of the European Convention on Human Rights, underscoring the need for legal recognition of same-sex unions, further pressuring the Polish government to act.
The UN Human Rights Council has mandated the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to offer advice to States on how to remedy violence and discrimination since 2016. The visit was prompted by Poland’s recent steps to address human rights abuses, including a groundbreaking apology from the Ministry of Justice in December 2023 for the past harm caused to LGBT individuals by state actors and media. The apology marked a turning point, fostering improved access to government officials for civil society groups and signaling the possibility of legislative reform.
Encouragingly, a draft civil union bill and expanded hate crime protections are under consideration, signaling a shift toward a more inclusive legal framework. Municipal initiatives, such as Krakow’s growing Equality March, reflect changing societal attitudes, though officials acknowledge that political action has lagged behind public sentiment.
Despite these positive developments, Poland continues to rank last among European Union countries in LGBT legal protections, as highlighted in ILGA-Europe’s annual report. While amendments to the Polish Criminal Code now include sexual orientation in hate crime and speech provisions, gender identity remains excluded. Various cases of hate crime and speech, discrimination and isolation remain pertinent in Poland against the LGBT community.
As Poland grapples with its evolving role within the European Union, the UN expert emphasised the need for sustained commitment to human rights. “This moment represents an opportunity shaped by political circumstance,” the expert remarked, urging Poland to align its policies with EU standards and secure a more equitable future for all citizens.
Hong Kong top court affirms same-sex couple rights in housing policies and inheritance law
The Hong Kong Court of Final Appeal ruled on Tuesday that the exclusion of homosexual couples in the current public housing policies and inheritance laws amounts to unlawful discrimination and is unconstitutional.
Regarding the right to apply for public housing as a family unit, the court held that the exclusive spousal eligibility for application for Public Rental Housing and transfer of ownership in the Home Ownership Scheme amounts to discrimination. The court rejected the government’s claim that Article 36 of the Basic Law grants exclusive rights to heterosexual couples under the contested public housing policies, based on the premise that such rights existed prior to the enactment of the Basic Law in 1997.
The court also reasoned that the government failed to adduce any evidence on how the housing policies can promote the formation of traditional families nor why prioritizing heterosexual couples’ applications while accepting those from homosexual couples, as a less intrusive means, is unable to achieve the same legitimate aim of promoting traditional family founded in opposite-sex marriages.
Accordingly, the court upheld the lower court’s ruling, concluding that the government failed to strike a balance between homosexual couples’ right to social welfare and the societal aim. The decision affirmed the right of homosexual couples to apply for PRH as an ordinary family. Homosexual couples will now benefit from the government’s exclusive commitment to allocate housing units to ordinary family applicants in three years.
Regarding the inheritance laws, the court found that the differential treatment between opposite-sex marriages and same-sex foreign marriages serves no legitimate aim. The government attempted to justify the differential treatment by asserting that the differential treatment is necessary to maintain a coherent definition of marriages across legislation. The court was not persuaded by this argument, stating that recognizing the status of a surviving same-sex spouse reflects the legislative purpose to “lay down a scheme for the distribution of the deceased’s residuary estate,” different from other matrimonial laws.
The court also upheld the lower court’s reasoning, which maintained that the “marital maintenance duties” imposed on opposite-sex spouses by the local law are irrelevant. It further clarified that inheritance is not based on any legal obligations to provide for maintenance as other classes of beneficiaries under the provisions, such as parents and siblings, do not owe any maintenance duties to the deceased.
Even though same-sex marriage is not legally recognized in Hong Kong, the decision affirmed that the surviving same-sex spouse of the deceased, whose marriage is celebrated in a foreign country, enjoys the right of inheritance under the Intestates’ Estates Ordinance and the Inheritance (Provision for Family and Dependants) Ordinance, both require a “valid marriage” for the surviving spouse to assert their inheritance rights.
In September 2023, the court already affirmed the government’s duty to recognize same-sex marriage but allowed the government to distinguish between core and substantial marital rights. The government lodged its appeals in December 2023 and has yet to propose any framework.
Russia approves laws that ban transgender adoption and restrict LGBTQ+ visibility
Russia’s upper house of parliament approved two laws on Wednesday that will prohibit the visibility of LGBTQ+ people in media and ban citizens of countries that allow gender transitioning from adopting Russian children.
The first law amends Article 6.21 of the Code of Administrative Offences of the Russian Federation to prohibit “propaganda of non-traditional sexual relations and (or) preferences or gender reassignment.” While Article 29(1) of the Constitution of Russia guarantees freedom of speech and press, the law will amend Articles 10.6 and 15.1 of Federal Law No. 149, to prohibit the promotion of not having children on the internet, in media and advertising.
The law will impose fines of up to 400,000 rubles for individuals, fines of up to 800,000 rubles for officials and up to 5M rubles for legal entities on violators. Foreigners will face similar sanctions as Russian citizens but can be deported from Russia or arrested for up to 15 days.
The law on the adoption of Russian children will effectively restrict the adoption of Russian children to the roughly dozen countries that ban gender transitioning.
The approval of these laws marks continuing suppression of LGBTQ+ rights. Previously, the Russian Supreme Court ruled the LGBTQ+ movement was “extremist”. Russia also banned gender affirming surgery in 2023.
After its official publication, the laws will take effect in ten days.
Russia faces a low birth rate, aging population and a decline in population has been heightened by the invasion of Ukraine. The measures are intended to increase the country’s birth rate and restrict the cultural influence of the West.
“Italy Criminalises Surrogacy from Abroad, a Blow to Gay and Infertile Couples.” This was the headline on the New York Times website following the approval of a law in Italy criminalising reproductive tourism. Giorgia Meloni had already introduced the bill, Act no. 824, in the last Parliament, and the current right-wing majority has now passed it. The news has gone around the world. Let us try to understand why.
Surrogacy and its regulation
Gestation for others, commonly known as “surrogacy”, is a method of assisted reproduction in which a woman carries a pregnancy on behalf of others, who then become the parents of the child. The ovum from which the child is conceived comes from a donor or from the intended mother, ensuring that the pregnant woman has no blood ties to the unborn child. The male gametes can be those of the future father (or of one of the future fathers in the case of same-sex couples), or of a donor. For a so-called “altruistic surrogacy”, the pregnant woman receives no payment (except for her expenses). “Commercial surrogacy”, on the other hand, involves payment to the woman who carries the pregnancy. In some countries, both European and non-European, surrogacy is allowed only in the altruistic form (e.g. United Kingdom, Netherlands, Portugal, Canada), in others – the minority – in both altruistic and commercial forms (United States, Greece, Georgia, Ukraine).
In Italy, however, surrogacy has been a criminal offence since 2004. Law no. 40/2004 art. 12, para. 6 punishes with imprisonment from three months to two years or a fine from 600,000 to 1 million euros “anyone who, in any form, carries out, organises or advertises the commercialisation of gametes or embryos or surrogacy”.
The reform
Crucially, the new Italian law does not create a new offence, nor does it increase the penalties. Instead, it extends the law’s reach by allowing prosecution of Italian citizens engaging in surrogacy abroad. Previously, prosecution of such conduct abroad was only possible at the request of the Italian Minister of Justice, as per art. 9 of the Italian Criminal Code. Moreover, even in the absence of an expressed legislative provision, Italian law required, according to some courts and scholars, “double incrimination” for ordinary offences committed abroad, meaning that the act had to be considered a criminal offence both in Italy and in the foreign State where it was committed.
The application of double incrimination has rarely been addressed by Italian courts, and the few decisions on this topic send mixed messages. However, one significant decision of the Corte di Cassazione (the highest Italian civil and criminal court) took a stance on this issue in the context of surrogacy. In 2016, the Court heard the case of an Italian heterosexual couple who had resorted to this assisted procreation technique in Ukraine, where such a practice is legal (see Cass. pen., sez. V, 10 marzo 2016, n. 13525). The Court acquitted the two defendants, stating that the aforementioned uncertainty in the interpretation of art. 9 Criminal Code – and thus of the double incrimination requirement – had led to an unavoidable error on the part of the accused: the couple was not in a position to know whether or not the conduct they had committed in Ukraine was punishable under Italian law, and thus acquitted.
The new bill was finally approved by the Senate on 16 October. It remedies this legal uncertainty by inserting the following sentence at the end of paragraph 6 of article 12 of Law no. 40/2004: “If the facts referred to in the preceding sentence, with reference to surrogacy, are committed abroad, the Italian citizen shall be punished according to Italian law.” This way, surrogacy carried out by Italian citizens abroad can now be prosecuted, even without the request of the Minister of Justice and without double incrimination. In the public debate, this innovation has been called a “universal offence”. However, this is a misnomer: The legislation does not make surrogacy a “universal offense” in the true sense, that is a conduct universally criminalized – such as war crimes, torture, or genocide. Instead, it is more accurately a form of extended jurisdiction that Italy claims over Italian citizens who engage in surrogacy abroad, even where it is legally permissible.
Some reflections on state power
The new law provides an opportunity to reflect on the limits of state power in criminalisation, especially in modern liberal democracies. Some argue that the criminalisation of surrogacy abroad is concerning as it reflects “an idea of a State guardian of the morality of its citizens, wherever they go”, which is contrary to “the principles of political liberalism” (see D. Pulitanò, Surrogazione di maternità all’estero. Problemi penalistici, in Cassazione penale, 2017, p. 1372). The reform has broad implications for other legal areas as well, especially international judicial cooperation and private law.
A particularly pressing issue arises with the legal status of children born through surrogacy abroad. In civil cases, the Court of Cassation has constantly held (lately with the confirmation by the Sezioni Unite, the Court of Cassation sitting in full court) that Italy does not automatically recognize foreign court orders, and consequently also related original birth certificates, designating intended parents as legal parents, even if one is the biological parent. This reflects a negative view of surrogacy in Italian civil jurisprudence, which, according to the Cassazione, “regardless of the manner in which it is practiced and the aims it pursues, is intolerably offensive to the dignity of women and deeply undermines human relationships.”
What remains to be done
Subsequently, the Constitutional Court in 2021 (Decision No. 33/2021) examined whether the view expressed in the civil decisions of the Cassation was compatible with the rights of the child enshrined in constitutional and supranational law. While recognizing a child’s right to legal acknowledgment of their parental relationships, the Court also affirmed the state’s interest in discouraging surrogacy which can be weighed against the right of the child, within the limits of proportionality. Referring to European Court of Human Rights case law, particularly C. v. France and E. v. France, the Court noted that while states may choose not to register foreign documents acknowledging intended parenthood, they must ensure alternative means for recognizing the child-parent relationship if it has effectively materialized. It is then left to the discretion of each State to choose such measures. Those measures may include adoption of the child, provided that a genuine ‘filiation’ bond between the adopter and the adoptee can be established, and “provided that the detailed rules laid down by domestic law ensure the effectiveness and rapidity of its implementation, in accordance with the best interests of the child.” However, Italy’s current provisions under Law No. 184/1983, which allow for “adoption in special cases”, have been deemed insufficient by the Constitutional Court to fully protect children’s rights. The Constitutional Court had no choice but to call upon the legislator, but the recent Act no. 824 only extends criminal penalties, failing to address the issues related to the civil status of the child born through surrogacy, as pointed out by the Constitutional Court, and which have become widespread in practice.
This gap leaves many families in a precarious situation upon returning to Italy, risking self-incrimination by seeking legal recognition for the child’s status – a problem that engages the principle nemo tenetur se detegere (the right against self-incrimination), whose constitutional relevance was reaffirmed by the Constitutional Court in Decision No. 111 of 2023.
There are many more complexities to the regulation of surrogacy that other critical elements in this matter which, leaving aside the various ethical opinions on surrogacy, call for a deeper reflection on the path that the Italian Parliament is following – or intentionally not following – in such a delicate area. But the law demands that any regulation protects the fundamental rights of the person, in particular those of the children.
Japan court reaffirms same-sex marriage ban is unconstitutional
The Tokyo High Court declared Japan’s current policy against same-sex marriage as discriminatory and unconstitutional in a ruling on Wednesday.
The case involved a couple in Tokyo registered as same-sex partners who sought compensation from the government, arguing that laws failing to recognize same-sex marriage violated the Japanese constitution.
Presiding Judge Taniguchi Sonoe emphasized that establishing a legal relationship as spouses for same-sex individuals is fundamental for a fulfilling social life and deserving of equal respect as heterosexual unions. The court delved into the interpretation of “freedom of marriage” under Article 24 of the constitution, addressing the language referencing “both sexes” and “husband and wife.”
The court clarified that these terms do not exclude legal protection for same-sex couples, highlighting the importance of legal recognition for all individuals. By examining provisions in the Civil Code and related laws, the court concluded that denying same-sex marriage rights breached constitutional principles of equality under the law and essential gender equality.
This ruling aligns with a prior landmark decision in 2021, which deemed the government’s stance on same-sex marriage unconstitutional. The Sapporo High Court in March 2024 affirmed the district court decision, being the first High Court in the country to declare the ban explicitly unconstitutional.
Advocacy groups in Japan like the “Freedom of Marriage for All” are now calling on the National Diet, the Japanese parliament, to enact legislation ensuring same-sex marriage rights without delay.
Amnesty International’s East Asia Researcher, Boram Jang, praised the Tokyo High Court’s decision, emphasizing the significance of this step towards marriage equality and the need for comprehensive national legislation to uphold equal rights for all couples in Japan.
Georgia signs bill protecting family values, minors from LGBT and homosexual influences
Speaker of the Republic of Georgia’s parliament Shalva Papuashvili announced on Thursday that he signed into law a bill aimed at protecting family values and minors from LGBT and homosexual influences, according to local media.
The legislation stated that Georgia recognizes family values of the union of a man and a woman, which are strengthened by the constitutional agreement of the Apostolic Autocephalous Orthodox Church of Georgia and the State of Georgia. While the legislation said that there are foreign legislations that recognize and allow the marriage of same-sex individuals, it stated that these practices ignore the best interests of minors and would be incompatible with the Code of Children’s Rights and several other legal acts aimed at defending children.
The law defined marriage as the union of one genetic man and woman and prohibited medical intervention in sex change operations. It also disallowed official documents from not stating the genetic sex of the identity holder and criminalized gatherings that aimed to promote homosexual marriage.
While the European Commission for Democracy through Law acknowledged that Georgia’s decision to limit marriage to a man and a woman was aligned with Article 12 of the European Convention on Human Rights (ECHR), the commission said that there was no “justification for barring [] transsexuals from enjoying the right to marry under all circumstances.” The commission also noted that bans on sex change surgeries violate Article 8 of the ECHR, which allows for the right to respect for private and family life.
In September, US Secretary of State Antony Blinken announced visa restrictions on 60 Georgians after the Georgian Legislature approved the bill. The 60 Georgians include senior government figures who Blinken said were “responsible for, or complicit in, undermining democracy in Georgia.” Georgia’s Prime Minister Irakli Kobakhidze said that the country may revise its ties with the US if the US imposes more sanctions on Georgian officials.
Georgia president refuses to sign anti-LGBTQ+ bill
Georgian President Salome Zourabichvili refused to sign a highly controversial ‘Family Values and the Protection of Minors‘ bill on Wednesday passed by the country’s parliament to significantly curtail the rights of LGBTQ+ individuals.
The bill, which passed with overwhelming parliamentary support, seeks to ban same-sex marriage, prohibit adoption by same-sex couples, restrict gender-affirming care, and limit public expressions of LGBTQ+ identity, including media portrayals and public Pride events. This reflects a broader conservative shift in Georgia’s political climate. Sponsored by the ruling Georgian Dream party, the bill is framed as protecting “traditional family values,” a slogan that has gained popularity among nationalist and pro-Russian factions within the country. The proposed restrictions closely resemble anti-LGBTQ+ legislation in Russia, which has served as a model for conservative lawmakers in Georgia.
The controversial law conflicts with Georgia’s constitution which guarantees equality and non-discrimination under Article 14, and any law that specifically targets a minority group, such as the LGBTQ+ community, could face challenges in court. In addition, Georgia is a signatory to several international human rights treaties, including the European Convention on Human Rights (ECHR). Under Article 14 of the ECHR, discrimination based on sexual orientation is prohibited, creating a legal conflict between the proposed domestic law and Georgia’s international commitments.
Critics of the bill contend that the instrument will contribute to the further marginalization of the LGBTQ+ community, possibly inciting violence against its members, who are already vulnerable in Georgia. Josep Borrell, High Representative of the European Union (EU) for Foreign Affairs and Security Policy, stated on X (formerly Twitter) that the bill will “increase discrimination and stigmatisation.”
If enacted, the bill could also have broader legal implications for Georgia’s aspirations to join the EU, which has made it clear that respect for human rights, including LGBTQ+ rights, is a prerequisite for membership. By passing legislation that contradicts these principles, Georgia risks stalling or even jeopardizing its path toward EU integration.
To oppose the controversial bill, President Zourabichvili, whose role is largely ceremonial, refused signature, opening up a legal debate about the future of LGBTQ+ rights in Georgia. Although Georgia’s constitution allows President Zourabichvili to send the bill back to parliament for reconsideration, it is expected that the legislative body will ultimately override her decision, given its strong majority in favor of the bill.
Belarus transgender rights organization says authorities detained over 15 LGBTQ+ individuals
Belarus transgender rights organization TG House Belarus said on Friday that more than 15 LGBTQ+ individuals, including eight transgender individuals, were detained by the Belarusian authorities in the past month.
According to TG House Belarus, the individuals were arrested in several Belarusian cities for allegedly subscribing to extremist resources. TG House Belarus stated that most of the eight transgender individuals were charged for hooliganism and two individuals were charged for pornography. The organization also stated that the detainees were subjected to physical and psychological abuse and some were forced to flee the country.
On February 19, Prosecutor General of Belarus Andrei Shved announced that the Belarus government had been preparing a bill that would punish the promotion of what they deemed to be non-traditional relationships. He stated that it was important to not allow the discussion of the topic and that opponents were attempting to destroy traditional family values and, by extension, Belarus as a nation.
Relatedly, on August 5, the Council of the EU announced that existing sanctions would extend to 28 new individuals for participating in “ongoing internal repression and human rights violations in Belarus.” The 28 individuals, who were listed in a regulation on July 16, included Belarusian government officials, operators of correctional institutions, and members of the state-run media.
EU sanctions against Belarus were initially drafted in response to elections in 2020. The sanctions have been expanded and extended due to alleged ongoing human rights violations and violence against peaceful protesters. The EU stated that the purpose of the sanctions was to “put pressure on Belarusian political leadership to prevent further violence and repression.”
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 