In 2009 the International Commission of Jurists began to gather together national court decisions that addressed questions concerning sexual orientation and gender identity. It did so because it had become evident that battles over some of the most controversial issues of the day were being waged in domestic courts. A very small number of cases can be brought before international human rights bodies – such as the regional human rights commissions and courts and UN treaty bodies – but increasingly international human rights arguments were being heard at the domestic level. What you have before you is the result of this research.
The fourteen chapters are organised by topic. Each chapter begins with a general introduction to that particular field of law, followed by case summaries. The latter set forth the legal issue and the relevant domestic, comparative and international law, and then summarise the arguments, reasoning, and result. Cases that are summarised in the Casebook are bold-faced throughout the text.
Altogether, the Casebook consists of 108 cases, from 41 countries across a variety of regions, covering a span of more than forty years. The vast majority of decisions, nevertheless, date from the past decade. The pace of change is clearly accelerating.
The Casebook has two purposes. First, it should help lawyers, judges, and human rights activists better understand how to use the law to protect individual rights. The ICJ hopes that readers of the Casebook will be encouraged to raise arguments that are grounded in international and comparative law in their domestic courts and that courts will find the experiences of other courts relevant. The ICJ further hopes that the Casebook will promote public interest litigation in defence of rights, assist individuals whose rights have been violated to seek redress in court, and enable lawyers to develop effective and persuasive reasoning.
Second, the ICJ hopes that the Casebook will stand as evidence for the claim that law on sexual orientation and gender identity is global in nature. A court in New Delhi is referring not only to the decisions of courts in Strasbourg or Washington. It is also, and perhaps especially, paying attention to precedents established in South Africa, Hong Kong and elsewhere. Activists in Thailand and Guyana assert the right to cross-dress. Individuals in Kampala and Kathmandu demand judicial enforcement of their rights under international law. People everywhere want their relationships – with their partners, with their children – to receive legal recognition and protection.
The Casebook has certain limitations. During the process of compiling these cases, some difficult choices had to be made. The Casebook is not comprehensive. It does not contain every decision that involves sexual orientation or gender identity. There were simply too many cases to do so. Essentially, the Casebook attempts to take account of the types of factual scenarios that are most relevant and the lines of reasoning that parties and judges have relied upon. To this end we have included negative and positive decisions.
Some areas of law, such as hate crimes, have been omitted, because we felt that hate crime prosecutions were more likely to depend on specific evidence of motive rather than on interpretation of human and constitutional rights. Some very pressing human rights issues, such as conditions of detention for LGBT people in custody, are not represented in the Casebook either, because they are not areas that have been extensively litigated.
Because this area of law is changing so rapidly, the Casebook may not fully reflect the current state of the law. To the extent possible, subsequent legal developments, whether judicial or legislative, have been noted in postscripts.
The Casebook focuses on the judicial protection of human rights. It would be a mistake, however, to draw the conclusion that litigation is the only means available to enforce human rights. Much legal change occurs in parliaments. In Europe, for example, the rights of LGBT individuals and communities have advanced significantly following legislative reform, sometimes in reaction to or in anticipation of judicial decisions. Legal change can also be achieved via processes that occur in society rather than in the courtroom – in workplaces, on the radio waves, and in neighbourhood bars.
Many of the cases are relevant to more than one chapter. A custody case that involved a transgender parent, for example, is found in the parenting chapter but could also have been included in the transgender chapter. Cases about immigration benefits extended to same-sex couples could have been categorised under Partnerships instead of Asylum and Immigration. In the same manner, many of the legal arguments are relevant to several chapter themes. Where possible, cases in different chapters have been cross-referenced.
Finally, a word should be said about language. We have tried wherever possible to preserve the original wording of the court. For example, we use “homosexual” or “transsexual” or “sexual diversity” where the court has done so, and adopt a court’s use of personal pronouns in some of the transgender cases even if this did not reflect the individual’s preferred gender. This may read as discordant. However, we felt that it was important to highlight some of the judicial tension and discomfort around gender choice. We have also adopted the original language when naming the parties, such as “appellant”, “defendant”, and “plaintiff”.
The ICJ expected that many of the cases would show that domestic courts have interpreted and applied principles of international human rights law. It is true that frequent references are made to Toonen v. Australia (decided by the UN Human Rights Committee in 1994) and Dudgeon v. United Kingdom (decided by the European Court of Human Rights in 1981). What is equally evident, however, is that domestic courts are increasingly drawing on comparative constitutional law. They are engaged in a conversation across borders about the meaning of constitutional and human rights. Even when they reach different conclusions, courts are bound to respond to comparative law arguments.
Moreover, their use of international and comparative (domestic) law is somewhat similar. International law is often treated as on par with comparative law. Each is a source of guidance and judicial experience that is relevant to the task of interpretation rather than a binding obligation. This makes some sense when one considers that core norms are usually found in both international and constitutional texts. In some instances, indeed, the development of national law influences the decisions of supranational bodies, as in the European Court case of Goodwin v. United Kingdom, which drew heavily on cases involving gender recognition from New Zealand and Australia.
In addition, there is considerable cross-cultural convergence around the meaning of norms. The idea that privacy implies autonomy for personal and intimate decision-making, for example, has been recognised by a range of courts in many different countries. A large number of these cases refer to a dissenting opinion in a US Supreme Court case (Justice Blackmun in Bowers v. Hardwick) as well as to Toonen and Dudgeon. The robust conception of privacy articulated in these opinions marks the waning influence of “public morality”, which many courts had previously relied upon to justify the criminalisation of consensual and private sex between adults. This view of privacy affirms that it is not the function of the criminal law to implement social or political disapproval of certain forms of sexual conduct, regardless of whether that disapproval is widespread.
The cases also demonstrate significant agreement around the meaning of equality and non-discrimination. Once the law is officially neutral with regard to same-sex relationships, the discriminatory nature of differential treatment based on sexual orientation becomes apparent. Sexual orientation and gender identity are treated as an aspect of diversity, akin to race or religion, one of numerous characteristics that define individual identity. Even in jurisdictions where same-sex sexuality is subject to criminal sanction, however, courts have recognised and reasserted the universality of all human rights. In doing so, they reaffirm the Universal Declaration of Human Rights.
This Casebook reveals a dramatic evolution of jurisprudence in the area of sexual orientation and gender identity. Arguments based on emotion, social disapproval and cultural attitudes are giving ground to arguments based on the rights to privacy, equality, and non-discrimination.
Finally, the law is not just about legal standards. It is also about people. Nowhere is this more vividly demonstrated than in litigation, where a court’s decisions can change individual lives for better or worse. In each of these cases, a court has considered a law, evaluated it, assessed its constitutionality, and applied it. Simultaneously, the cases allow us to glimpse the lives of those involved and see how the law has affected their daily experiences. The Casebook is a testament to the courage of ordinary people who have sought to use the law to vindicate their rights.