The ICJ welcomes the 16 April 2014 judgment of the Court of Appeal of Victoria, Australia, in Christian Youth Camps Ltd & Anor v Cobaw Community Health Services Ltd & Ors [2014] VSCA 75. The ICJ intervened as amicus curiae in the case.
The ICJ is profoundly concerned at the recent enactment of legislation in Nigeria and Uganda that heralds further persecution based on sexual orientation and/or gender identity.
On 24 February 2014, Uganda’s President, Yoweri Museveni, gave his assent to the Anti-Homosexuality Bill recently adopted by the Uganda Parliament by signing it into law.
His Nigerian counterpart, President Goodluck Jonathan, had signed the Same Sex Marriage (Prohibition) Bill into law on 7 January this year.
In both countries pre-existing legislative provisions already criminalized consensual same-sex sexual activity in private in contravention of international human rights law and standards, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
These core global instruments each affirm the universal and inalienable rights to human dignity, equality and non-discrimination.
“Carnal knowledge…against the order of nature,” for example, was already a criminal offence in both Nigeria and Uganda, carrying, upon conviction, maximum sentences of 14 years’ imprisonment in the former and life imprisonment in the latter.
The new Nigerian legislation makes people of the same gender who contract a marriage or civil union liable upon conviction to 14 years’ imprisonment.
Further, it makes criminally responsible anyone who “administers, witnesses, abets or aids” a same-sex marriage or civil union ceremony, rendering those found guilty of the offence liable to 10 years’ imprisonment.
It also outlaws the registration, activities and funding of any “gay” organization, making them offences attracting 10 years’ imprisonment upon conviction.
In Uganda, the new law, among other things, explicitly criminalizes consensual same-sex conduct between women and makes it an offence for people to discuss and be open about their sexuality.
Further, it criminalizes “homosexuality”, “aggravated homosexuality” and same-sex marriages, all of which carry sentences of life imprisonment upon conviction.
Moreover, it makes it a criminal offence to make available information about sexual orientation, safe sex and gender identity. Renting premises to those who may “practice homosexuality” is also a crime.
The ICJ considers that laws or regulations that directly or indirectly criminalize consensual same-sex sexuality or conduct provide State actors with the means to perpetrate human rights violations, including through harassment, extortion and discriminatory “criminal” investigations, prosecutions, trials and imprisonment.
Equally, these laws enable non-State actors to persecute with impunity individuals based on their real or perceived sexual orientation and/or gender identity.
Indeed, laws that criminalize same-sex consensual sexual activity contribute to an atmosphere of State-supported homophobia and transphobia and serve as both the motivation and justification for harassment, extortion and physical abuse of people based on their real or attributed sexual orientation and/or gender identity by non-State actors.
In the circumstances, not only is cruel, inhuman or degrading treatment at the hands of non-State actors on the basis of real or perceived sexual orientation and/or gender identity not prevented, but such treatment and other human rights abuses are fostered when the authorities enact laws criminalizing consensual same-sex sexuality or conduct.
Overall, the existence of such laws works to deprive individuals who are, or are perceived to be, lesbian, gay, bisexual, transgender or intersex of adequate protection from violence and discrimination, including police protection and judicial redress.
This makes the provision of effective protection by State authorities extremely unlikely if not altogether impossible given that extending such protection would in turn be tantamount to aiding and abetting the perpetration of the very acts that such laws criminalize.
Putting the same point another way: protection is neither effective nor available when laws criminalizing consensual same-sex sexual relations or acts exist, because the individuals who need protection would effectively be outing themselves to the authorities should they decide to seek protection from them.
Accordingly, the existence of these laws entails a real risk of violations of the right to life, to liberty and security of the person, and to mental and physical integrity.
In light of the above, the ICJ considers that Uganda’s Anti-Homosexuality Act and Nigeria’s Same Sex Marriage (Prohibition) Act contravene each country’s respective Constitution and their international treaty and customary law obligations by which both countries are bound.
In particular, the Acts directly violate the right to dignity; equality, including equality before the law and equal protection of the law; non-discrimination; liberty and security of person; privacy; opinion and expression; association and peaceful assembly; and the right to access health services and care without discrimination.
Both pieces of legislation also undermine and criminalize the critical work of human rights defenders and civil society organizations that seek to combat discrimination and persecution based on sexual orientation and/or gender identity.
They also have very serious public health implications, including, for example, as a result of the fact that they hinder the prevention and treatment of HIV/AIDS.
The UN High Commissioner for Human Rights, Navi Pillay, has strongly denounced both pieces of legislation.
In relation to the Nigerian law, the High Commissioner said: “rarely have I seen a piece of legislation that in so few paragraphs directly violates so many basic, universal human rights”.
She further noted that the legislation “purports to ban same-sex marriage ceremonies but in reality does much more.
It turns anyone who takes part in, witnesses or helps organize a same sex marriage into a criminal. It punishes people for displaying any affection in public towards someone of the same sex.
And in banning gay organizations it puts at risk the vital work of human rights defenders who speak up for the rights of lesbian, gay, bisexual, transgender (LGBT) and intersex people”.
In his reaction to the enactment of the Nigerian legislation, the Executive Director of UNAIDS, Michel Sidibé, expressed concern that: “The provisions of the new law in Nigeria could lead to increased homophobia, discrimination, denial of HIV services and violence based on real or perceived sexual orientation and gender identity … It could also be used against organizations working to provide HIV prevention and treatment services to LGBT people.”
In relation to the Ugandan legislation, the High Commissioner said: “Disapproval of homosexuality by some can never justify violating the fundamental human rights of others” adding that the law “will institutionalise discrimination and is likely to encourage harassment and violence against individuals on the basis of their sexual orientation. It is formulated so broadly that it may lead to abuse of power and accusations against anyone, not just LGBT people.”
The ICJ urges the Nigerian and Ugandan authorities to urgently repeal the new legislation, as well as the pre-existing legislative provisions criminalizing consensual same-sex sexual activity in private.
Contact:
Livio Zilli, ICJ Senior Legal Adviser, Sexual Orientation and Gender Identity Programme, t +41 22 379 3823; email: livio.zilli(a)icj.org
The ICJ is profoundly concerned at the judgment of 11 December 2013 of the Supreme Court of India, which effectively recriminalizes consensual same-sex sexual conduct between adults in private.
The decision by India’s highest court in Suresh Kumar Koushal and another v NAZ Foundation and others overturned the 2009 decision of the Delhi High Court.
That earlier judgment had held section 377 of the Indian Penal Code to be unconstitutional to the extent that it violated the rights to equality before the law, non-discrimination, life and personal liberty guaranteed by the Indian Constitution.
Section 377 criminalized certain consensual sexual acts in private between adults that are particularly associated with same-sex conduct.
The 2009 High Court’s ruling had the effect of decriminalizing such conduct between adults in private in India.
Its decision was based on an in-depth analysis of India’s obligations under international human rights law and standards, as well as international comparative law.
The High Court had examined the scope of the rights to equality, non-discrimination and personal liberty under the Indian Constitution and determined Section 377 to be unconstitutional.
Section 377, which was enacted in 1860, is a historical relic from colonial times bequeathed to India under the British empire; it made it an offence to voluntarily have “carnal intercourse against the order of nature” with any man, woman or animal.
Those convicted are liable to imprisonment for up to 10 years or for life and a fine.
The Supreme Court decision of 11 December reversed the High Court’s courageous and much celebrated decision.
Purporting to uphold the separation of powers, the judgment of the Supreme Court overturned the High Court by ruling that it acted in excess of its judicial review jurisdiction by failing to exercise restraint and to accord the necessary deference to the Indian legislature in its review of the constitutionality of section 377.
The Court effectively holds that the provision is not inconsistent with human rights and India’s obligations under international human right law, and that it is up to the Indian Parliament to amend or repealed it.
The ICJ is deeply troubled by the reasoning of the Supreme Court judgment.
It would appear to constitute an abdication of the essential role of the judiciary in safeguarding human rights.
In this case, the Court failed to uphold and protect the rights to equality and non-discrimination; equality before the law and equal protection of the law; dignity; privacy; freedom of expression and association; family life; and the highest attainable standard of health.
The judgment is inconsistent with India’s obligations under international human rights law.
The judgment also disconcertingly dismisses without apparent reason the wealth of evidence before the court documenting how the criminalization of same-sex sexual conduct leads directly to human rights violations.
The Court of Justice of the European Union (CJEU) today declined to hold that the criminalisation of consensual same-sex activity necessarily constitutes “persecution” for the purposes of EU asylum law.
This ruling is out of step with international human rights and refugee law, the ICJ and Amnesty International said.
In X, Y and Z v Minister voor Immigratie, Integratie en Asiel the Luxembourg-based CJEU considered three joined cases arising from asylum requests lodged in the Netherlands by nationals of Senegal, Sierra Leone and Uganda.
The three men claimed that they have a well-founded fear of persecution based on their – undisputed – same-sex sexual orientation and the fact that sex between men is criminalised in their home countries.
“The Court skirted around the real issue in this case and missed a key opportunity to state clearly that to criminalise consensual same-sex conduct ultimately amounts to criminalising people for who they are and, therefore, amounts to persecution per se, regardless of how often sentences of imprisonment are enforced,” said Sherif Elsayed-Ali, Amnesty International’s Head of Refugee and Migrants’ Rights.
A key question facing the Court was whether “the criminalisation of homosexual activities and the threat of imprisonment” for the same constitute “persecution” under EU asylum law.
The Court did affirm that the prosecution and imprisonment of a person for such conduct would constitute persecution.
However, according to the two organizations, the mere existence of laws that criminalise consensual same-sex sexual activities – and which thus effectively criminalise individuals for their sexual orientation and who they are – also runs contrary to international human rights law and jurisprudence, as well as a growing raft of national court decisions.
“The Court should have found that these laws, even when they have not recently been applied in practice are capable of giving rise to a well-founded fear of persecution in lesbian, gay, bisexual transgender and intersex people, and who accordingly should be recognised as refugees when they apply for asylum,” said Livio Zilli, Senior Legal Adviser at the International Commission of Jurists.
Amnesty International has extensively documented how these laws provide state actors with the means to perpetrate human rights violations and contribute to an atmosphere of state-supported homophobia.
They enable harassment and abuse, and deny lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals – or those perceived to be LGBTI – effective state protection to which they are entitled under international human rights law.
Contact:
Livio Zilli, Senior Legal Adviser, ICJ, t + 41 22 979 38 23 ; e-mail: livio.zilli(a)icj.org
Notes:
In its request to the CJEU, the Dutch Council of State asked the Luxembourg-based CJEU to answer the following questions:
1) “Do foreign nationals with a homosexual orientation form a particular social group as referred to in Article 10(1)(d)” of the Qualification Directive?
2) “Which homosexual activities fall within the scope of the Directive”; “how should national authorities assess what constitutes persecution in this context” and “whether applicants for refugee status should be expected to conceal, or exercise restraint in expressing, their sexual orientation in their country of origin” in order to avoid persecution?
3) Do the criminalisation of same-sex sexual activity and the possibility of imprisonment upon conviction constitute persecution within the meaning of the Qualification Directive?
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The European Court of Human Rights today ruled that an Austrian ban on same-sex second-parent adoption is discriminatory.
The European Court of Human Rights delivered its judgment in the case of X and Others v. Austria and ruled that Austria’s Civil Code discriminates against a partner in a same-sex relationship by making it legally impossible to adopt the biological child of the other partner while permitting second parent adoptions for unmarried heterosexual couples.
The organisations that provided written submissions in this case (FIDH, ICJ, ILGA-Europe, BAAF, NELFA, and ECSOL) welcome this judgment and consider it a landmark judgment applying the European Court of Human Rights’ case law on equal treatment of unmarried couples to same-sex couples applying for second-parent adoption.
Children in same-sex families are highly vulnerable due to a lack of legal recognition and their inability to establish legal links to both of their parents.
Currently, second-parent adoption is possible in 11 European countries: Belgium, Denmark, Finland, Germany, Iceland, the Netherlands, Norway, Slovenia, Spain, Sweden and Great Britain. New legislation that would allow it is planned in France, Luxembourg and Switzerland. Moreover, as a result of the Court’s judgment, it would follow that the legislation of Austria, Andorra, parts of Bosnia and Herzegovina, Liechtenstein, Portugal and Romania should be amended to allow same-sex couples to apply for second-parent adoption, because these countries already permit unmarried heterosexual couples to do so.
Martin K.I. Christensen, Co-Chair of ILGA-Europe’s Executive Board:
“This is a very significant and important victory for rainbow families in Europe. We hope that this judgment will pave the way towards the removal of the remaining legal barriers for these families in Europe. The lack of recognition and the inability for partners in same-sex families to establish legal links to their children is not only discriminatory and creates a number of legal uncertainties, but also has a profound and detrimental impact on the everyday lives of these families and the wellbeing of the children in those families. The principle of the best interests of the child needs to be upheld without exception.”
Alli Jernow, Senior Legal Adviser, International Commission of Jurists, stated:
“With today’s decision, the Court clearly asserts that families are families, regardless of the sex of the parents, and that barriers to legal recognition and protection based on sexual orientation serve the interests of neither parents nor children.”
Souhayr Belhassen, President of FIDH, said:
“The Court recognised the right of a partner in same-sex couple to adopt another partner’s biological child when such adoptions are available for heterosexual couples. This is an important step forward towards the application of the principle of non-discrimination based on the sexual orientation and strengthening legal security and certainty for children. This ruling should guide not only domestic courts, but also the legislator in European states that have not yet amended their legislation in that direction”.
Juha Jämsä, the Vice-President of NELFA, said:
“This is an important day for European LGBT families. We feel very hopeful that this case will lead to our children’s rights gaining better recognition throughout Europe. No group of children should be discriminated against because of their parents’ sexual orientation, gender identity or gender expression”
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