LGBulleTIn 107 The week in LGBTI news January 5-11, 2018 Prepared by Daniele Paletta Edited by Lara Goodwin

Monday, January 8

India: significant advances in the legal struggle against Section 377

In a significant advance in the legal struggle against the criminalisation of same-sex sexual activity in India, a three-judge bench of the country’s Supreme Court ordered that a Constitutional Bench review the 2013 judgement which upheld Section 377 of the Penal Code.

“The decision in Suresh Kumar Koushal’s case requires re-consideration,” the order reads. “As the question relates to constitutional issues, we think it appropriate to refer the matter to a larger Bench.”

As ILGA’s 2017 State-Sponsored Homophobia report points out, “in 2009, Section 377 of the Indian Penal Code was given a more limited interpretation by the Delhi High Court, lifting the ban on same-sex sexual activity among consenting adult men in private. However, on 11 December 2013, in Koushal v. Naz Foundation, a two-judge bench of the Supreme Court of India upheld Section 377 as constitutional. Therefore, private consensual sexual activity between two men is still a crime in India.”

According to Times of India, “the three-judge bench took into account views expressed in another judgment in August, which gave the right to privacy the status of a fundamental right.”  The 547-page ruling mentioned here made clear that “the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”



Monday, January 8

Botswana: Registrar updates trans man’s identity document

The Registrar of National Registration of Botswana issued a trans man a new identity document that correctly reflects his male gender identity.

The High Court of Botswana had previously ruled that the Registrar change the man’s gender marker on the identity document: on that occasion, the Court acknowledged that failing to recognize a trans person’s gender identity exposes them to widespread discrimination, stigma and harassment, and that “legal recognition of the applicant’s gender identity is part of (his) right to dignity.”

“This is a significant step towards protecting the dignity of transgender persons,” commented Tashwill Esterhuizen, LGBTI Programme Lawyer at the Southern Africa Litigation Centre. “The Botswana High Court has set an example for other courts in the region on the important role the courts can and should play in protecting and promoting human rights of all persons, including marginalised groups.”

According to reports, the Registrar of Botswana is also set to soon update the ID of a trans activist who successfully brought a similar case on the legal recognition of her gender identity.



Monday, January 8

United States: Supreme Court declines to hear case challenging Mississippi’s House Bill 1523

The Supreme Court says it will not hear a challenge to a Mississippi law that allows businesses and government officials to deny services to members of rainbow communities if doing so would conflict with their “sincerely held” religious beliefs.

The law states it protects “sincerely held religious beliefs or moral convictions” of those who assert that marriage should only be between a man and a woman, that sexual relations should be only reserved to such marriage, and that a person’s gender is “determined by anatomy and genetics at time of birth.” Under this law, Human Rights Campaign pointed out, “almost any individual or organization could justify discrimination against LGBTQ people, single mothers, unwed couples and others.”

Mississippi’s H.B. 1523 was signed into law in 2016, but was blocked by a federal district court shortly before its effective date. That decision was then overturned by a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit.

The Supreme Court did not state why it did not take up the case. According to NPR, however, lawyers said they will continue to challenge the law as individuals in Mississippi show how it has negatively impacted their lives.



Tuesday, January 9

Inter-American Court of Human Rights recognises right to legal gender recognition and same-sex couples’ right to marriage

In a historic decision, the Inter-American Court of Human Rights indicated that States must recognise the right of trans people to change gender markers and names in their official documents without pathologizing requirements, and that all couples must be guaranteed the same legal protections and rights, including the right to marriage.

The ruling came in response to a motion lodged by Costa Rica in May 2016, and is therefore immediately binding on the country. The government has already announced it will comply in full.

Such a historic consultative opinion came after the tireless work of LGBTI civil society across the Americas, and will create legal precedent for all those countries that recognise the Court’s jurisdiction.

“The lack of consensus within some countries about respecting the rights of certain groups or persons on the grounds of their sexual orientation, gender identity or gender expression can’t be considered as a valid argument to deny them their human rights,” the Court explained, “or to perpetuate and reproduce the historical and structural discrimination that these groups or people have suffered.”


Tuesday, January 9

Australia: trans activists call to scrap ‘forced divorce’ precondition

A group of trans activists in Australia is calling for state and territory governments “to end the cruel practice of requiring couples with a transgender partner to divorce before the transgender partner can have their gender legally recognised.”

According to QNews, such an abusive precondition still applies in most Australian states.
“The Act that gave every other Australian marriage equality last year did not do the same for transgender Australians and that 12 months were given to Australian States and Territories to remove compulsory divorce from Birth Certificate legislation,” reads a Facebook post by Trans Health Australia.

“This cruel transgender divorce requirement has undermined our families and discriminated against transgender partners and parents by making them choose between their marriage or legal recognition of their identity,” reads an open letter by the group. “It is not fair or just that the transgender community should have to wait longer than is absolutely necessary for the implementation of marriage equality […] We urge you to move forward on this matter as soon as parliament resumes in 2018 or as soon as is practical.”


Thursday, January 11

Definition of ‘spouses’ must include same-sex spouses, Advocate General says

The freedom of residence of same-sex spouses must be recognised by every member of the European Union, even if a country still hasn’t made marriage equality a reality, the European Court of Justice has been advised.

Although EU Member States are free to decide on their own marriage legislation, Advocate General Wathelet made clear that they may not impede the freedom of residence of an EU citizen by refusing to grant their same-sex spouse, a national of a non-EU country, a right of permanent residence in their territory.

The opinion was issued as the AG was assigned to examine questions on the right to free movement of EU citizens raised by Adrian Coman, a Romanian national, and his husband Clai Hamilton.

“The Advocate General’s Opinion supports all the arguments ACCEPT and the plaintiffs have put forward to European judges,” said Iustina Ionescu, a human rights lawyer and member of the ACCEPT Association. “Moreover, Advocate General Wathelet points out that discrimination on grounds of sexual orientation cannot be justified by invoking the protection of the traditional family.”

The Court of Justice of the European Union is likely to decide on the case in spring 2018. Read more via ILGA-Europe.


Is that all? More LGBTI news bites

In Germany, the Federal Court of Justice insisted that a trans woman cannot be legally recognised as the mother of her child, requiring she is listed with their dead-name and as the father of the child on the birth certificate.

In October 2017, more than 500 persons gathered together in Vienna, Austria for the first European Lesbian* Conference. Organisers have just released a report about the event.

A report released by Human Rights Watch has documented the extent of discrimination and abuse still suffered by lesbian, gay, bisexual, and trans persons in Ghana, both in public and in family settings.

The Human Science Research Council has launched a study aimed at “a deeper understanding of how HIV is affecting the transgender women population in South Africa.”

In Israel, a pilot program was announced to allow gay, bisexual and other men who have sex with men to donate blood, implementing a “double testing” system that allows blood banks to screen donations twice.

Police in Saudi Arabia claimed they arrested several young men who appeared in a video of what was described as a “gay wedding scene.”

The Government’s department of human services of Australia has publicly apologised after a woman reported receiving an automated message refusing to recognise her marriage to her wife.

The Asia Pacific Transgender Network is looking to hire a project manager for a peer-led study on trans rights and transphobic violence in Fiji, Samoa and Papua New Guinea.

In the United States, Washington state residents who don’t identify as ‘exclusively male or female’ will soon be able to choose ‘X’ as their gender marker on birth certificates.

A call for presenters is now open for Egale’s national IDENTITY Conference, which will address Canadian perspectives on LGBTQI2S Inclusion. Applications close on January 31, 2018.

Flávia Piovesan has been elected the new Rapporteur for the Rights of Lesbian, Gay, Bisexual, Trans, and Intersex Persons at the Inter-American Human Rights Commission.

A pastor known for opposing women’s rights and for having repeatedly called for members of the LGBTI community to be executed is set to soon visit Jamaica, but a petition is calling on the government to ban him from entering the country.


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