Thursday, 30 May 2013

H.Ç. v Turkey - update on TRNC legislation

The draft legislation that would repeal Articles 171, 172 and 173 of the Criminal Code of the Turkish Republic of Northern Cyprus, which currently criminalise certain homosexual acts between consenting adult males, is available from the Assembly of the Republic. 

The legislation would repeal the male homosexual offences entirely and therefore satisfy the complaint made in H.Ç. v Turkey.

The legislation also contains an interesting further provision relating to sexual orientation. The draft Bill proposes a new article (152) relating to hate crime and sexual orientation:

'Her kim cinsel tercih ve cinsel yaşamından dolayı, bir kişiyi yasa dışı  bir uygulamaya maruz bırakırsa ve/veya cinsel tercih ve cinsel yaşamlarından dolayı hakaret ederse veya onu nefret edilen veya tiksindirilen durumuna düşürürse cinsel tercihe yönelik nefret suçu işlemiş olur ve  mahkumiyeti haline üç  yıla kadar hapis cezasına çarptırılabilir'.

If any Turkish reader of this blog can post an English translation of this I would be most grateful!


Gay Rights in Russia - forthcoming DH meeting

Last week the Secretary General of the Council of Europe, Thorbjørn Jagland, spoke out again about the continued suppression of gay rights demonstrations in the Russian Federation and the implementation of laws criminalising 'homosexual propoganda'.

Jagland stated: 'Authorities have an obligation also to (ensure) that LGBT people can express their views and (hold) demonstrations [...]  This is a fundamental principle in the European Convention on Human Rights'.

This had little impact on the subsequent disturbances and arrests that took place at Moscow Pride last week.

The Committee of Ministers is due to hold its quarterly human rights (DH) meeting next week between the 4-6 June. It will likely consider the state of implementation of the judgment in Alekseyev v Russia given the submission of an NGO which I detailed recently.

It seems unlikely that the Committee of Ministers will reach any further conclusions on Alekseyev at its June DH meeting, given that it is awaiting the release of the Venice Commission report on the 'propoganda' laws. As I detailed in an earlier post, this is to be adopted at the 95th Plenary Session of the Venice Commission between 14-15 June. The Venice Commission report is likely to be very significant.                                 

Tuesday, 28 May 2013

Eweida and Others v the United Kingdom - Grand Chamber request rejected

The European Court of Human Rights has today announced that it has rejected the applicants' request in Eweida and Others v the United Kingdom for referral to the Grand Chamber. This means that the Chamber judgement is now final.

In respect of the complaints brought by McFarlane (the 'Relate' counsellor who would not provide services to same-sex couples) and Ladele (the registrar who would not officiate at the registration of same-sex civil partnerships) the Court's judgment will be good news for gay men and lesbians and for the vast majority of Christians and other people of faith.

The Court has confirmed the UK's approach to reaching a
fair balance between rights associated with sexual orientation and religious belief. It has determined that the UK's approach to equality - which is to not recognise a religious objection to homosexuality to be sufficient grounds to refuse to carry out aspects of public-facing work in both public and private sector organisations - is proportionate and does not not violate any Convention rights.

The Court's refusal to hear the case in Grand Chamber also repudiates the further use of the argument advanced by Judges Vučinić (Montenegro) and De Gaetno (Malta), as expressed in their
Partly Dissenting Opinion, that a 'conscientious objection' to homosexuality (regardless of whether or not it is underpinned by religious belief) should be respected as a 'fundamental human right' and regarded as more important than 'gay rights'. The rejection of any development of this interpretation of Article 9 of the Convention - which effectively seeks to elevate bigotry and prejudice against sexual minorities above the fundamental rights of lesbians and gay men - is especially welcome.


The Court has also rejected the request by the state for referral to the Grand Chamber in
X. v Turkey.

This is also good news. It confirms the Court's previous landmark decision, which extends
the protection of Article 3 to sexual minorities.

Thursday, 23 May 2013

Eweida and Others v the United Kingdom - the question of 'fair balance'

In debates about the issues raised in Eweida and Others v the United Kingdom, it is often taken for granted that there is great complexity and difficulty in reaching a fair balance between the rights of religious believers who have a fundamental objection to homosexuality and the rights of homosexuals. 

In Great Britain, in respect of the provision of goods and services, this 'difficulty' has only been a legal one since 2007 with the commencement of the Equality Act (Sexual Orientation) Regulations 2007 (and subsequently the Equality Act 2010). Since that time, any commercial organisation or public authority engaged in offering goods, services, facilities or premises cannot discriminate on the grounds of sexual orientation.

As a consequence of the requirements of equality law, some Christians have argued that they do not wish to carry out aspects of their job that demand providing homosexuals with goods and services. This is the essence of the complaint made by one of the applicants (Ladele) in Eweida who refused, when employed as a registrar, to carry out any aspect of her job insofar as it related to the registration of civil partnerships by same-sex couples. 

Despite the fact that seemingly sensible people would quickly dismiss such an objection if it was made in respect of another protected characteristic ('as a Christian I cannot work on the checkout at Tesco because I object to serving people with disabilities') even serious legal commentators like Joshua Rozenberg, when responding to the Chamber judgment in Eweida, bemoaned the European Court of Human Rights' failure to strike a 'fair balance' between the rights of Ladele and the same-sex couples she refused to serve. 

When the Court considers the request by Ladele and her co-applicants for referral to the Grand Chamber next Monday the issue of fair balance will be a fundamental limb of the applicants' argument. 

One issue that the Court might wish to consider in respect of the question of fair balance (and I am grateful to Prof Robert Wintemute for pointing this out) is an aspect of the recent Parliamentary debate in respect of the Marriage (Same Sex Couples) Bill 2013. At Report Stage of the Bill in the House of Commons an amendment was proposed to include a 'conscientious objection' clause which, if enacted, would have meant that 'No person shall be under any duty, whether by contract or by statutory or other legal requirement, to conduct a marriage to which he has a conscientious objection if he is employed as a registrar of marriages on the date this Act comes in force' providing that the conscientious objection is 'based on a sincerely-held religious or other belief'. 

The sponsor of this clause stated that its inclusion would 'strike a proper balance between the right of marriage and the right of conscience'. It was designed to 'protect' people like Ladele. 

How did the House of Commons respond to this proposed conscience clause? They rejected it by 340-150. The central reason for its rejection was the widespread recognition that no protect characteristic should be elevated above another. When at work, religious belief should not be a justification for refusing to serve homosexuals, just as sexual orientation cannot be a ground for refusing to serve Christians. With this approach, a fair balance is reached. 

Perhaps the Court, when reaching its decision, might consider the argument made by Nick Herbert MP during the debate: 

If, in the case of an application to have a wedding, it is wrong for a registrar to turn someone away on the grounds that they are black or a member of an ethnic minority, why would it be right for a registrar to turn away a gay person? That is the essence of the question and that is why [the conscience clause], in seeking to protect the conscience of that registrar, who is performing a public service, goes too far and opens up the possibility that we would provide all sorts of protections for the exercise of conscience, most of which—maybe not all—Members of this House would find deeply unpalatable.

Wednesday, 22 May 2013

Will Eweida and Others get referral to the Grand Chamber?

As I reported yesterday, the European Court of Human Rights will decide next Monday whether to grant the applicants' request that Eweida and Others v the United Kingdom be referred to the Grand Chamber. 

Of interest to readers of this blog are the complaints of the two applicants, Ladele and McFarlane, relating to sexual orientation - which I originally detailed on the ECHR Blog.   

There is no way of predicting the outcome of the Court's decision. Both applicants will be arguing that the Chamber judgment failed to give adequate protection to their rights under the Convention to exercise their freedom of religious belief without being subject to discrimination.

What chance do they have?

There are some factors not in their favour:

  1. The Chamber vote was decisive (unanimously against McFarlane, 5-2 against Ladele);
  2. The Court confirmed that the UK government had not exceeded its margin of appreciation when attempting to strike a fair balance between the rights of these individuals and the needs of the wider community;
  3. In holding that the UK acted within its margin of appreciation, the Court confirmed that the measures taken to strike a fair balance - in the form of UK equalities legislation - were justified in principle and proportionate;  
  4. It is the applicants who are seeking referral, rather than the state (and the state's margin of appreciation has been recognized and confirmed).
In respect of the Ladele complaint there is one factor in this applicant's favour:

  1. The Joint Partly Dissenting Opinion of Judges Vučinić (Montenegro) and De Gaetno (Malta), which as I have previously discussed in terms of the distinction they made between 'gay rights' and 'fundamental human rights', actually makes a far more compelling case about proportionality than that managed by the applicant. It elevates (as religious opponents of sexual orientation equality often do) the applicant's objection to homosexuality to one of 'conscientious objection' that requires the highest protection.

Tuesday, 21 May 2013

Grand Chamber requests to be considered

On Monday 27th May the European Court of Human Rights will examine two Grand Chamber referral requests relating to sexual orientation.

First, it will consider the applicants' request for referral in Eweida and Others v the United Kingdom.

Second, it will consider the request from the Turkish government for referral in X. v. Turkey.

Update on Council of Europe recommendation to combat discrimination on sexual identity and gender identity

A draft report and collection of country specific questionnaires is available in respect of progress on the implementation of Recommendation CM/Rec(2010)5 of the Committee of Ministers. 

Recommendation CM/Rec(2010)5 invites member states to guarantee that a number of principles and measures are applied in national legislation, policies and practises relative to the protection of the human rights of lesbian, gay, bisexual and transgender persons and the promotion of tolerance towards them.

The Steering Committee for Human Rights (CDDH) invited each member state to complete a questionnaire detailing their progress in implementing the recommendations. 38 of the 47 member states responded and CDDH have published a compilation of the questionnaires.

A draft report which provides an overview and analysis of the responses is also available.

Monday, 20 May 2013

UK same-sex marriage Bill and the ECtHR

The UK Parliament is once again debating the Marriage (Same Sex Couples) Bill that would extend marriage to same-sex partners in England and Wales. The Bill is at Report Stage in the House of Commons and several MPs, both Conservative and Liberal Democrat, have introduced amendments characterised by some as wrecking amendments. The Bill will conclude its business in the Commons at Third Reading tomorrow.

One feature of the debate so far at Report stage is reference to the European Court of Human Rights as an institution to be feared because of its supposed ultra pro-gay agenda. For example, here is what Sir Gerald Howarth MP said about the impact of same-sex marriage legislation on school teachers who wish to exercise a conscientious objection to homosexuality and marriage:

'There are people out there who will be intimidated by this legislation [...] We have ceded the power of the House of Commons not to the courts of this land, but to the European Court of Human Rights. That Court will be the ultimate determinant of what is to prevail, the right of the teacher expressing a profoundly religious view [...] Our constituents do feel intimidated. They fear that they will be accused of a hate crime. That, in my view, is a new and wholly pernicious development of the law.'

The Court once again features in the consciousness of some Britons as an institution trampling on the rights of people of faith and forcing homosexuality on an otherwise resistant nation. In this respect, it was welcome to see the 'reality check' introduced into the debate by Stephen Doughty MP, quoting Lord Pannick:

'For the European Court of Human Rights to compel a religious body or its adherents to conduct a religious marriage of a same-sex couple would require a legal miracle much greater than the parting of the Red Sea.'

Friday, 17 May 2013

EU and ILGA-Europe reports published

Two significant reports relating to sexual orientation and human rights have been published this week. 
  • Today the European Union Agency for Fundamental Rights published the first results from its EU LGBT Survey. The FRA states:

  • The survey results provide valuable evidence of how LGBT persons in the EU and Croatia experience bias-motivated discrimination, violence and harassment in different areas of life, including employment, education, healthcare, housing and other services. The findings show that many hide their identity or avoid locations because of fear. Others experience discrimination and even violence for being LGBT. Most, however, do not report such incidents to the police or any other relevant authority. By highlighting and analysing the survey results, this report, together with the upcoming EU LGBT survey – Main results report, will assist the EU institutions and Member States in identifying the fundamental rights challenges facing LGBT people living in the EU and Croatia. It can thereby support the development of effective and targeted European and national legal and policy responses to address the needs of LGBT persons and ensure the protection of their fundamental rights

    A video is available explaining the survey and findings.

  • Yesterday ILGA-Europe launched its Rainbow Europe package reviewing the situation of LGBTI people in Europe and measuring the progress of European institutions and national governments towards full respect of LGBTI human rights. The package contains ILGA's latest annual round-up of legal issues and significant issues: Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe 2013.

    ILGA's Rainbow Europe package has been given support by Nils Muižnieks, the Council of Europe's Commissioner for Human Rights, who stated:

    Advocacy based on solid facts is what we need for advancing the human rights of LGBTI people. ILGA-Europe and its national member organisations have first-hand knowledge of what is going on and share their insights and concerns through the Annual Review and the Rainbow Map. In addition to holding countries accountable for their actions, the Annual Review also gives a critical account of the steps taken by international organisations. It is a valuable tool for a serious debate about the human rights situation of LGBTI persons across Europe.

Both reports present important insights into the lives of sexual minorities in Europe and, as I stated in a previous post, will be invaluable for use by both applicants and judges in the European Court of Human Rights.

Tuesday, 14 May 2013

Homosexuality and human rights in Africa

The Journal of Law and Society have published my article Homosexuality and the African Charter on Human and Peoples' Rights: What Can Be Learned from the History of the European Convention on Human Rights?

The article is an attempt to consider how the historical development of interpreting and applying the European Convention on Human Rights in respect of homosexuality might be useful for achieving greater recognition of gay and lesbian human rights in Africa. 

Here is the abstract:

Despite differences between the European Convention on Human Rights (ECHR) and the African Charter on Human and Peoples' Rights (ACHPR) in terms of the substantive rights guaranteed and machineries to enforce them, both instruments have been foundational in the establishment of organizations that share a common history of rejecting human rights complaints from homosexuals. Although the contemporary jurisprudence of the European Court of Human Rights (ECtHR) on homosexuality may contrast sharply with that of the African Court on Human and Peoples' Rights (ACtHPR) and the African Commission on Human and Peoples' Rights (ACmHPR) – because the ACtHPR and ACmHPR have never upheld a complaint relating to sexual orientation – the early history of the ECtHR and the former European Commission on Human Rights (ECmHR) mirrors the current African stance. This article explores what those seeking to develop gay and lesbian rights in Africa might usefully learn from the historical evolution of similar rights under the ECHR.

If anyone would like a copy of the article, but is unable to access it directly, please contact me. 

Sunday, 12 May 2013

EU report on LGBT discrimination published this week

The European Union Agency for Fundamental Rights will publish on Friday 17th May what it describes as the 'largest-ever LGBT hate crime and discrimination survey':

'Around 93,000 lesbian, gay, bisexual and transgender people from all across the EU and Croatia completed the survey, making it the largest and most comprehensive survey of its kind to date. LGBT people were asked whether they had experienced discrimination, violence, verbal abuse or hate speech on the grounds of their sexual orientation or gender identity. Participants were also asked to identify where such incidents took place, such as at school, work, when seeking healthcare or in public places.'

The Programme for the launch event to be held in The Hague is available, and Maria Ochoa- Llidó, Acting Director of Human Rights and Anti-discrimination, will represent the Council of Europe. 

The published report, although fundamentally an EU initiative, will no doubt prove to be a very important resource in the Council of Europe and European Court of Human Rights. It is likely to be referenced by applicants in the Court but, more importantly, will potentially be used by the Court's judges in their 'fact finding' on particular issues. 

Friday, 10 May 2013

'Homosexual propaganda' laws in the Russian Federation - further press coverage

Voice of America have reported an increase in policing at a Gay Film Festival in Moscow and suggest that it is emblematic of a shift in law enforcement created by proposed federal 'homosexual propaganda' legislation.

Consideration of the propaganda laws at the next Council of Europe Human Rights (DH) meeting scheduled for 4-6 June is unlikely given that the Committee of Ministers is awaiting both the opinion of the Venice Commission and a response from the Russian Federation to it.

Tuesday, 7 May 2013

Transgender rights in Croatia and the issue of same-sex marriage

In the context of the ongoing reform of the Croatian Registries Act, the Commissioner for Human Rights of the Council of Europe has called on the Croatian authorities to clarify the legal framework governing the official recognition of transgender persons’ preferred gender.

In a letter to the Croatian authorities, Nils Muižnieks urges Croatia to ensure its law are in line with the jurisprudence of the European Court of Human Rights (specifically Christine Goodwin v United Kingdom and L. v Lithuania) and the Committee of Ministers recommendation that all member states 'guarantee the full legal recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way' (see: CM/Rec(2010)5).

A key point made by the Commissioner is that 'divorce should not be a necessary condition for gender recognition as it can have a disproportionate effect on the right to family life'. This reiterates the recommendation made in
Discrimination on grounds of sexual orientation and gender identity in Europe.

This resonates with the Grand Chamber referral in H. v FinlandAs previously noted, any positive developments in respect of recognising that enforced divorce violates rights guaranteed by the Convention has considerable and wide implications for gay and lesbian couples who wish to contract civil marriage.

Whilst there are those who view the requirement that transgender persons end a heterosexual marriage in order to gain recognition for their gender as a specific transgender issue that has little to do with same-sex marriage rights - because, it is argued, the central issue concerns the state coercing someone to divorce whilst they are in an existing marriage, rather than granting them a right to contract that marriage in the first place - it will require considerable gymnastics (sociological, as well as legal) in the Court to justify why those in a same-sex relationship who have acquired their gender through the process of reassignment should have the protection of that relationship under Article 12 of the Convention whilst those in same-sex relationships who have not reassigned their gender should not.


Friday, 3 May 2013

Council of Europe again flags up 'homosexual propaganda'

The Council of Europe have flagged up a concern with 'homosexual propaganda' laws on their web page relating to human rights and homophobia. The page states:

'Whilst for many LGBT people in Europe life has become easier and society more tolerant, they face still many other obstacles. The European Court of Human Rights has been asked to judge cases involving the banning of gay pride parades and discrimination in granting social rights, with a number of applications pending on the laws which criminalise “homosexual propaganda”'.

The increasing references to 'homosexual propaganda' in the Council are encouraging and strongly suggest forthcoming action against those states that have enacted or seek to enact such laws. 

Secretary General Jagland has expressed his concern about 'homosexual propaganda' laws in Ukraine, the issue has been made central to the ongoing supervision of the judgment in Alekseyev v Russia (as I have previously reported), and the Venice Commission is due to report on the human rights implications of the laws very soon. 

The lack of movement in the Court on the outstanding complaints against the Russian Federation might suggest that the Council intends to tackle the issue first via the Alekseyev judgment, leaving to the Committee of Ministers to find that the propaganda laws fall within the sphere of freedom of assembly covered by that judgment. The forthcoming opinion of the Venice Commission should be central to this.