hunter of justice

German registered partners entitled to same pension rights as spouses

Germany's constitutional court (the equivalent to the U.S. Supreme Court) ruled late last week that surviving partners in a registered civil partnership have a right to collect under the occupational pension scheme for civil service employees. The court found that affording such payments to surviving spouses in a marriage but excluding civil partners violated the equal treatment provision in Article 3.1 of Germany's Basic Law (the rough equivalent of the Constitution), and was not  justified by the rationale underlying the pension system. The complaint was brought by a civil servant in a registered partnership after being denied the same premium rates as married persons - a classification that also would deny his partner the right to collect on the pension in the event of his death. 

Coincidentally, the Williams Institute has just published an analysis of the discrepancies between same-sex partners and married couples in their access to employer-sponsored retirement benefits in the U.S.

An English language version of the German court's summary of the new decision is after the jump -->

European Commission warns of lgbt rights deficiencies in nations seeking EU admission

The European Commission has published its 2009 "Progress Reports" on the countries now or potentially seeking EU membership: Croatia, the former Yugoslav Republic of Macedonia, Turkey, Albania, Bosnia and Herzegovina, Montenegro, Serbia and Kosovo.

According to ILGA-Europe:

LGBT issues are covered in all reports and stronger language is used by the Commission when referring to the human rights violations of LGBT people and to the non-compliance of the states to their human rights obligations under European/Accession partnerships. It is also positive to notice that the reports give specific recommendations to the states to introduce anti-discrimination laws and policies that are in line with the EU requirements. The Reports also emphasise the need to level up ‘the protection against discrimination in practice’ in the countries where the laws were adopted (Croatia, Serbia). In particular, the Commission has criticised the governments for failing to provide adequate protection to Belgrade Pride participants which led to cancellation of the event, and for the violation of freedom of expression and association in the infamous case of Lambda Istanbul in Turkey.

ILGA-Europe's compilation of specific references to lgbt issues follows the jump -->

Uruguay passes landmark gender identity law

By guest blogger Harper Jean Tobin - cross-posted to T-Equality Blog

Uruguay’s legislature Monday finalized legislation that will guarantee transgender people’s right to legal recognition of their gender identity based on the reality of their life in society as a man or woman. The legislation, based on similar laws adopted in the United Kingdom in 2004 and in Spain in 2007, is the most progressive of any Latin American nation. Following final approval by the Uruguayan House and Senate, the bill now goes to President Tabaré Vázquez for his signature.

The legislation begins with the statement that “Everyone has the right to free development of his personality according to his own gender identity, regardless of their gender is biological, genetic, anatomical, morphological, hormonal, or other assignment.” An individual will have the right to change his or her sex in the civil registry based upon the “stability and persistence” of gender dysphoria for at least two years. The bill calls for an interdisciplinary expert team, similar to the UK Gender Recognition Panel, to be set up by the government to evaluate applications for civil sex change. Once the civil register has been amended, an applicant is considered to be his or her new gender for all legal and administrative purposes. (A full English translation is not yet available; this description is based on the Spanish version on the Parliament's website.)

In addition to an applicant’s own testimony, the team may consider the testimony of the individual’s health care providers and “people who know the daily lifestyle of the applicant.” However, the law does not require medical evidence be submitted, and “under no circumstances” is proof of surgery to be required. This is similar to the UK law. By contrast, Spain requires proof of some form of medical treatment for a two-year period, except in cases of old age or illness.

Unlike laws in several other countries, Uruguay’s legislation does not require that applicants be childless or unmarried, or that married applicants divorce. The law states only that it does not change existing laws regarding marriage – a concession to conservatives who wanted it made clear that this law does not establish same-sex marriage. Another unusual provision requires a five-year wait in the rare case of an individual wishing to return his or her civil sex to the birth sex.

This is not the first groundbreaking stride in LGBT rights for the South American nation, which lies just south of Brazil. President Vázquez’s Broad Front coalition made Latin American history in 2007 by passing civil union legislation. Earlier this year, legislation guaranteed same-sex couples the right to adopt. The senator who introduced the civil union law has promised that if the Broad Front prevails in national elections later this month, legislation establishing marriage equality will be introduced next year.

Scrutinizing trans bodies in Western Australia

by guest blogger Harper Jean Tobin

The Attorney General of the state of Western Australia is currently asking the supreme court of that state to revoke gender recognition certificates issued to two transgender men there. The two men both prevailed before a state administrative tribunal, which ruled last month that they had met all the criteria required by state law to obtain legal recognition of their gender transition. The Attorney General, however, argues that the state law cannot be interpreted to allow any person to legally change their gender if there remains any possibility of future fertility.

The two men brought unrelated petitions under the state’s Gender Reassignment Act, which allows transgender people to obtain a “gender recognition certificate,” and in turn (if they were born in that jurisdiction) an amended birth certificate. The petitioners, like others bringing petitions under the GRA and related legislation in other jurisdictions, need legal and administrative recognition of their transition order to work, travel, find housing, conduct financial transactions,  obtain public services, and otherwise carry on their day-to-day lives. In this case, both petitioners had received treatment under medical supervision over a number of years, including hormone therapy and surgical procedures. Both testified that they might ideally have wished to have additional surgical procedures, they did not plan to do so because of concerns including costs, medical risks, and limitations of current surgical techniques. Nevertheless, the conservative Attorney General intervened in the case, arguing that the men could not be legally recognized as men because it was not clear they were permanently sterile.

In the resulting hearing, both men were subjected to extensive medical testimony, in which several experts were pressed as to whether there existed some remote possibility that either of these men could become pregnant. When the experts testified that this was all but impossible given the men’s ongoing hormone treatment, they were asked repeatedly to speculate on whether a future cessation of hormone use – however unlikely that might be – could eventually result in regained fertility. Ultimately, however, the tribunal concluded that an individual’s right to social recognition of their gender should not depend upon such considerations, and granted the men’s applications.

The state attorney general immediately appealed. Explaining the decision to appeal, the AG said: “What this decision has said is that a person can be legally male and yet potentially bear children. This is a major decision which, if allowed to stand, could have significant and unforeseen effects on the laws of this State.” Tellingly, AG did not state what those “significant and unforeseen effects” might be, nor did he cite examples from other jurisdictions where present law is clearly consistent with the tribunals decision, such as Spain and the United Kingdom. Given the almost totally gender-neutral laws surrounding parentage and inheritance today, it is difficult to imagine what “significant and unforeseen effects on the laws” of Western Australia might be. Indeed, one strongly suspects that the AG is more concerned with perceived social effects of permitting individuals such control over their bodies and social identities than with any tangible legal effect.

                Aside from failing to articulate any actual reason for his legal position, the Western Australia attorney general’s position betrays an unseemly governmental interest in the private lives and reproductive choices of individuals. Assuming for the sake of discussion that society has some interest in ensuring that a gender transition is reasonably permanent before bestowing official recognition, it certainly has no such interest in preventing transgender individuals, or any individuals, from reproducing. While Australia has often been criticized for the absence of a right to privacy in its federal constitution, a legal requirement that a certain group of individuals be sterilized in order to obtain critical social benefits would seemingly violate that country’s international obligations under human rights treaties. While the two men in this case may not desire to make use of their own reproductive capacity, they clearly should not be required to undergo major surgery for the sole purpose of obliterating any such capacity.

                These bodily integrity and reproductive autonomy dimensions of gender recognition have seldom been recognized by courts. But the attorney general’s appeal in this case seems to present those questions squarely to the Western Australia Supreme Court. Hopefully the state’s high court will rise to the task.

Update from New Delhi - Government ducks questions of appeal of sodomy law ruling

The Indian national government announced that it would take no position on the correctness of an appellate court decision declaring the sodomy law unconstitutional, but instead would defer to the Supreme Court's assessment. A memorandum prepared for the Cabinet had recommended that the government not ask the highest court to review the decision. It seems from the report below that there is some confusion about exactly what the Cabinet's decision means, beyond please-make-this-go-away.

From The Economic Times:

The Union Cabinet, chaired by Prime Minister Manmohan Singh, considered the report of the three-member Group of Ministers formed on the issue and decided that Attorney General G Vahanvati will "assist" the Supreme Court on it. "The Cabinet decided to ask the Attorney General to assist the Supreme Court in every way desired by it in arriving at an opinion on the correctness of the judgement of the High Court," Information and Broadcasting Minister Ambika Soni told reporters.

To a volley of questions, she repeated the same formulation of her statement and said the Supreme Court can decide if the High Court was "right or not" in decriminalising gay sex. She refused to say anything more on the issue, maintaining that she was not authorised to "explain" further as the matter related to Cabinet proceedings.

The Cabinet decided against taking any stand on the issue to avoid getting caught in any controversy, a minister said, explaining why it was left for the Apex court to take a view.

Another first for Latin America: gay adoption in Uruguay

Uruguay lawmakers Wednesday adopted a trailblazing law allowing gay and lesbian couples to adopt children, in an unprecedented move for Latin America. ... [T]he contentious bill passed its final hurdle with 17 out of 23 senators voting in favor of the legislation.

It was approved by lawmakers from the ruling leftwing Frente Amplio and the opposition Colorado Party, while the opposition National Party voted against. The Senate had already approved a draft bill on its first reading in July, but it had to pass a second vote due to slight changes to the text introduced when the lower house voted approved the legislation last month.

Gay adoptions remain contentious worldwide, and Uruguay, a nation of some 3.5 million people, is taking another step away from its more conservative neighbors after having already authorized gay civil unions last year. President Tabare Vazquez, the first leftist leader in Uruguayan history, already opened access for homosexuals to military schools in May. But the move faced huge opposition from the country's religious leaders and some right-wing politicians.

The Catholic Church is against the bill because "from Genesis in the Bible, it says that 'God created man and woman,'" Bishop Paul Galimbertti said. "The position of the Church is very clear on this issue," he said, adding "there is no proof that adoption by homosexuals is a positive thing."...

"Uruguay has a long tradition of leading the way in civil rights, and has shown a desire to move ahead quickly on such questions," said social sciences professor Adolfo Garce at the Montevideo University. The large wave of European immigration to the country in the 20th century, particularly from Spain has given it "a progressive and secular culture," he added.

Uruguay was the first country in the largely Catholic South American region to approve divorce in 1907, and gave women the right to vote in 1932. But abortion remains illegal, after President Vazquez vetoed a proposed bill last year which would have legalized the terminations of pregnancies on "ethical grounds."

+++

Source: yahoo news; HT Oscar Cabrera

Indian government unlikely to appeal decision invalidating the sodomy law

Indian government documents made public yesterday indicate that an appeal of Naz Foundation v. Government of Delhi is highly unlikely. In Naz, the High Court of Delhi ruled that the country's sodomy law, a holdover from British colonial rule, violated the national constitution. A joint document from three ministries recommends that the government not challenge the ruling. Prime Minister Manmohan Singh will make the final decision whether to direct that an appeal be filed. From the Hindustan Times:

The three ministries had been directed by the Prime Minister to firm up the government stand, following the opposing stands taken by the Home and Health ministries before the high court last year. The  [memorandum], likely to be put up before the Union Cabinet on Thursday, was prepared after meetings between the Home, Health and law Ministries. It states there appeared to be no “legal error in the judgment, which has not struck down the entire Section 377 of the Indian Penal Code (IPC)”, given by the high court on July 2.

The [recommendation was] prepared on the basis of the opinion given by union Law Secretary TK Vishwanathan. “Since the court has not struck down the entire section, and has confined itself to consensual acts in private, it will be difficult for the government to question the HC judgment,” the Law Secretary stated.

Will new constitution in Zimbabwe decriminalize homosexual conduct?

Led by the fiercely anti-gay Robert Mugabe, Zimbabwe has long been a nightmare for lgbt people.  Male homosexual sexual conduct is illegal there, a status reaffirmed by the nation's highest court in a prosecution of one of Mugabe's predecessors, Canaan Banana [S. v. Banana, 2000(3)SA 885 (ZS)].

This summer, however, meetings have been ongoing to draft a new constitution. Anti-democracy thugs disrupted the conference last month, but it then resumed. Given that Mugabe is still in power, it may be unrealistic to expect that the drafting project will lead to anything more than words on paper. If the process does continue to completion, though, there will be a referendum on the new constitution next year.

AIDS and lgbt activists have been seeking to invoke the kinds of protection against discrimination based on sexual orientation found in the South African constitution to achieve greater legal protection in Zimbabwe.

According to this dispatch from the Guardian, they plan to use the argument that criminal laws impede efforts to fight AIDS, an urgent issue there and throughout Africa, and the subject of a keynote speech at last year's International AIDS Conference:

Gay men and lesbians in Zimbabwe are hoping for an end to years of "hysterical homophobia" by having their rights enshrined in the new constitution.

Sexual acts between men are outlawed in the socially conservative country (there is no legal reference to women) and the president, Robert Mugabe, has encouraged a climate of hostility by condemning homosexuality, describing it as a western import.

His opponents in the Movement for Democratic Change are more supportive of gay rights, raising hopes that Zimbabwe's constitution could follow that of South Africa, the first in the world to specifically outlaw discrimination on the grounds of sexual preference.

Keith Goddard said the group Gays and Lesbians of Zimbabwe (GALZ) – of which he is director – had tried twice to get sexual orientation included in the constitution.

"Now, with the new constitutional review, we are pushing again for sexual orientation," he said. "The National Aids Council has moved forward enormously from its original policy, and in its strategic plan for 2006-10 it specifically calls for the decriminalisation of homosexuality because punitive measures have simply driven the community underground and make this hidden population difficult to reach.

"So I think we can use it on the grounds of health and HIV/Aids interventions to try and argue the issue. Arguing it on religious or moral grounds is not going to get it anywhere. We live in hope. I think we've probably got a 50:50 chance."

Human Rights Watch documents "a killing campaign" targeting gay men in Iraq

Human Rights Watch issued a gruesome report yesterday documenting a campaign of murder and torture directed against hundreds of gay men, or men perceived as gay, in Iraq. A few excerpts from this powerful document - "They Want Us Exterminated" - paint the basic picture:

A killing campaign moved across Iraq in the early months of 2009.  While the country remains a dangerous place for many if not most of its citizens, death squads started specifically singling out men whom they considered not "manly" enough, or whom they suspected of homosexual conduct.  The most trivial details of appearance - the length of a man's hair, the fit of his clothes - could determine whether he lived or died.

...[M]en have been targeted, threatened or tortured [primarily in Baghdad, but also] in Kirkuk, Najaf, Basra. Murders are committed with impunity, admonitory in intent, with corpses dumped in garbage or hung as warnings on the street. ...

...Panic that some people have turned decadent or "soft" amid social change and foreign occupation seems to motivate much of the violence...

According to the HRW report, militia groups such as the Mahdi Army are behind the attacks. Official response has mostly been to ignore the murders; there are some reports of police complicity. The report states that the Mahdi Army is exploiting concerns about morality to try to rebuild its popularity, "by targeting people few in Iraq would venture to defend."

The authorities in control of Iraq - the Iraqi and American governments - should treat this situation for what it is: a form of ethnic cleansing based on sexuality and gender nonconformity.

Scott Long and the others at HRW who produced this report deserve enormous thanks.  

Argentina's AG files brief in gay marriage case before Supreme Court

From Blabbeando:

Argentina's Attorney General, Esteban Righi, has filed a lengthy brief with the country's Supreme Court in which he argues that government should not ignore the realities of gay life, and asks Justices to call upon the legislative branch to "clarify" ways in which same-sex couples can attain the same rights as married heterosexual partners.

The brief was filed in response to a pending court case challenging the constitutionality of Argentina's marriage laws on the basis that they discriminate against same-sex couples.

From Página/12:

In February 2007, María Rachid and Claudia Castro wanted to marry just as any heterosexual couple might, but the same civil court who had granted them a civil union years before, had to refuse. "I would love to but I can't. The law doesn't allow me", she explained, so the women turned the frustrated [attempt at] marriage into a claim of unconstitutionality against that law, considering it discriminatory. In mid-2007, Judge María Bacigalupo found that the denial had been most correct, which prompted another judicial claim by Rachid and Castro, this time before the Court of Appeals, which also rejected the claim. In this way, it reached the Supreme Court. Righi's statement is a response to this claim.

Happy July 14

Viva la liberte!

And my personal dedication: to the people of Palestine

Openly gay man runs for office in India, as cultural change intensifies

From the Washington Post, following up on last week's decision by the High Court of Delhi declaring India's sodomy law unconstitutional:

Popping out of an auto rickshaw, Manohar Elavarthi unloaded a backpack stuffed with protest posters. Soon he would be rushing to a street demonstration, one that would bring together low-caste Dalit activists, Gandhians, cross-dressers and members of domestic workers unions.

Elavarthi aspires to be the first openly gay man elected to a major political office in India, like Harvey Milk in the United States. Elavarthi is credited with being the first gay figure in India to build a mainstream political coalition across a wide spectrum of historically marginalized groups.

"Our dream for Indian politics is to build a common front of lesbians, untouchables, eunuchs and low-paid workers -- people who really need a voice in this country," said Elavarthi, who has received death threats for his views, largely from right-wing religious groups and police. "India -- the new India -- is really changing. We need to build a party around social justice for minorities. It would be a sign that India is a true secular democracy."

India, a nation of 1.1 billion people, is in the midst of an unprecedented debate over homosexuality, part of a wave of social change led by the younger generation in this traditional society. Modern India's youths are more economically mobile and independent than any generation before. Across the country, there is growing political pressure from a diverse coalition of college and law students, activists, artists and even mainstream politicians to overturn laws banning homosexuality.

In a groundbreaking ruling issued Thursday, the Delhi High Court decriminalized homosexuality[;] celebrations were held in the streets of major cities....

In a major shift, the government recently called a meeting of top officials to talk about the 150-year-old statute, known as Section 377. New Cabinet ministers appointed after the recent elections could bring "new thinking" on the law, Home Minister P. Chidambaram said last week, the Indian Express newspaper reported. Those in favor of amending the law argue that it violates human rights enshrined in the constitution. They also say that keeping gays closeted limits awareness about safe sex. HIV/AIDS affects an estimated 2.5 million people in India.

In the last weekend of June, hundreds of gay rights supporters danced and marched in the sweaty summer heat of New Delhi and in the southern cities of Chennai and Bangalore. One parent held up a sign that read "Proud Mother." Some young Indians chanted "Long Live Queeristan." Others sang "Gay Ho" to the tune of "Jai Ho," the megahit from the Oscar-winning movie "Slumdog Millionaire."

Cross-dressing men were decked out in sparkling saris and nose rings. It was the second year for the pride parades, and more people attended this time around. A fresh crowd of younger gay activists and heterosexual supporters of the cause reportedly organized the event.

In Bangalore and outlying rural areas, Elavarthi organized a week-long slate of events in the run-up to the marches, including the country's first gay cricket match, a dialogue with Dalit leaders, a seminar on religion and sexual minorities, and several film screenings and mixers in villages. The gay rights movement in India was once dominated by artists and members of the upper castes. But the movement now seems to be breaking down class divisions and uniting youth culture around human rights concerns....

In daily life, gay Indians suffer forced marriages, high depression rates, physical assault and blackmail -- often by police and underground rings on the Internet. In this nation where most families with the means hire domestic help, middle- and upper-class gay Indians wake up early to move separately into different rooms before household staff arrive. In much of India, parents still choose their children's future spouses, taking into account factors such as caste, skin tone, class and religion. But in some pockets, young Indians -- especially professionals living away from their parents -- have the freedom to decide for themselves.

Elavarthi was born to a farming family in a village in southern India. By the time he finished high school, he said, he knew he was attracted to men. He later realized he was bisexual. "But I dared not tell anyone," he said. After moving to the sprawling city of Mumbai, Elavarthi found a male lover and started living with him.

Elavarthi quickly became an activist and started a counseling center. He also founded a group called Sabrang, which means "all colors" in Hindi. The group reaches out to people from non-English-speaking backgrounds and from lower castes. Elavarthi said he hopes to run for office in next year's local elections and encourage other young gays and lesbians to do the same.

Appeals court in India strikes down sodomy law

In a first for India, the Delhi High Court ruled today in Naz Foundation v Government of Delhi that Indian Penal Code Section 377, a law prohibiting sodomy, is unconstitutional as violative of privacy and equality rights. Plaintiff in the case was an AIDS service organization.  The government must now decide whether to appeal to the national supreme court or to accept the decision.  In briefs before the court, different agencies within the government split on whether to defend the law. The court responded by requiring scientific evidence to support arguments that the law served a public purpose. 

CLARIFICATION: Rex Wockner, who first reported that the decision had come down, has a new post, citing several Indian sources, stating that the ruling will apply to all of India until and unless it is appealed to the Supreme Court and reversed.

A brief excerpt from the 105-page decision:

129. The notion of equality in the Indian Constitution flows from the 'Objective Resolution' moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, 'Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation's passion . . . . 

130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as "deviants" or 'different' are not on that score excluded or ostracised.

131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non- discrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution....

European Court of Human Rights: failure to protect women from domestic violence can be human rights violation

In Opuz v Turkey, the European Court of Human Rights unanimously found that a state violated the human rights of the applicant and her mother in failing to protect them against domestic violence.  The applicant had alleged that the state bore responsibility under the European Convention on Human Rights for its failure to take action against her violent husband who repeatedly attacked her and killed her mother. For the first time in a domestic violence case, the Court found violations of:

• the right to life (art. 2) "in respect of the death of the applicant's mother"


• the prohibition of torture (art. 3) "in respect of the authorities' failure to protect the applicant against domestic violence perpetrated by her former husband"


• and the right to non-discrimination on the basis of sex (art. 14). It explicitly recognized domestic violence as a form of gender discrimination that gives rise to state responsibility.

Regarding the sex discrimination claim, the Court found:

the existence of a prima facie indication that hte domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence ... the criminal-law system, as operated in the instant case, did not have an adequate deterrent effect capable of ensuring the effective prevention of [domestic violence] ...

Bearing in mind its finding above that the general and discriminatory judicial passivity in Turkey, albeit unintentional, mainly affected women, the Court considers that the violence suffered by the applicant and her mother may be regarded as gender-based violence which is a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors, as found in the instant case, indicated that there was insufficient commitment to take appropriate action to address domestic violence.

HT: IntLawGrrls

Fidel Castro's niece leads gay rights rally in Havana

Sweet.  From the SF Chronicle:

President Raul Castro's daughter led hundreds of Cuban gays in a street dance last week to draw attention to gay rights on the island.

Participants formed a carnival-style conga line around two city blocks to the beat of drums, accompanied by costumed stilt-walkers. Events also included educational panels and presentations for books, magazines and CDs about gay rights and sexual diversity.

"We're calling on the Cuban people to participate ... so that the revolution can be deeper and include all the needs of the human being," said Mariela Castro, an outspoken gay rights advocate who directs Cuba's officially sanctioned Sex Education Center.