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Foreign and International Courts Issue a Burst of LGBT Rights Rulings

Posted on: January 11th, 2018 by Art Leonard No Comments


Over the course of just four days, January 8 through 11, 2018, major courts on three continents have issued rulings that will affect the rights of tens of millions of LGBT people. On January 8, the Supreme Court of India ordered reconsideration of the 2014 decision that had restored the country’s law against gay sex, in an Order that quoted extensively from prior rulings critical of the 2014 decision.  On January 9, the Inter-American Court of Human Rights advised Costa Rica – and thus also sixteen other countries in Central and South America that are bound by the American Convention of Human Rights and do not yet have marriage equality – that same-sex couples are entitled to marry and that transgender people are entitled to get legal name changes without having to undergo sex reassignment surgery.  And on January 11, one of the Advocates General of the European Court of Justice (ECJ), responding to a request for a preliminary ruling from the Constitutional Court of Romania, advised the ECJ that same-sex spouses of the citizens of member nations must be treated the same as different-sex spouses under the European Union Directive governing movement between states.


India has the second largest population of any country, over 1.3 billion people by the latest estimate. The European Union member countries have more than 500 million residents, and the combined countries within the Inter-American Union have close to a billion people, although some large countries, including Canada and the United States, are not subject to the Inter-American court’s ruling.  But, of course, both Canada and the United States have marriage equality and don’t criminalize consensual gay sex among adults.   This means that within the space of four days courts have potentially expanded LGBTQ rights to an extraordinary proportion of the world’s population, which is currently estimated at about 7.6 billion people, and marriage equality may soon become the norm throughout the Western Hemisphere, with only a few holdouts among states that do not recognize the jurisdiction of the Inter-American court.


The India ruling is yet another step in a complicated and long-running story. In 1860, under British Administration, the Indian Penal Code was adopted including what is now Section 377, providing, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”  This colonial enactment was carried over into national law when India became independent and self-governing after World War II.  It has been interpreted to outlaw all same-sex oral and anal intercourse. Although infrequently enforced, it has had the same stigmatizing effect as anti-sodomy laws in western societies before the slow process of decriminalization got under way during the second half of the 20th century.


Many LGBTQ people in India rejoiced and went heavily public in celebratory demonstrations in 2009 when the Delhi High Court, responding to a lawsuit filed by the NAZ Foundation, an HIV/AIDS advocacy non-governmental agency, ruled that Section 377 was unconstitutional as applied to private consensual adult same-sex intercourse. NAZ Foundation v. Government of NCT of Delhi, 111 DRJ 1 (2009). As the government did not initiate an appeal, many saw the lengthy, scholarly ruling as final and definitive.


However, Indian jurisprudence allows for anybody who is offended by a court ruling to ask the nation’s Supreme Court to review it, and a group of religious and social conservatives, led by Suresh Kumar Koushal, a Hindu astrologist, brought their case to the Supreme Court, where a two-judge bench reversed the High Court ruling in 2014, holding that the Constitution of India did not impede the government from maintaining the existing law, and rejecting the High Court’s citation of decisions from other countries (such as the U.S. Supreme Court’s 2003 Lawrence v. Texas ruling) to support its decision. Koushal v. NAZ Foundation, 1 SCC 1 (2014).  The Supreme Court panel minimized the significance of the issue, claiming that because there were very few homosexuals as a proportion of the population, it was not a matter of great importance.  It also opined that the question of what sexual conduct to outlaw was for the legislature, not the courts, to decide.


Obtaining further review from a larger panel of the Court (which has 26 judges overall) is a time-consuming process, requiring filing “corrective petitions” and persuading a panel of the Court that the issue should be taken up anew. This process has been ongoing at the instance of NAZ Foundation and its supporters, but a new group of plaintiffs emerged in 2016 and initiated a petition directly with the Supreme Court, arguing that recent rulings in other cases by the Court, most notably a later 2014 ruling on the rights of transgender people, National Legal Service Authority v. Union of India 5 SCC 438 (2014), had cast significant doubt on the reasoning of the Koushal decision.  This argument was bolstered last year when a nine-member panel of the Court, ruling on a challenge to a new national genetic identification system, Puttaswamy v. Union of India, 10 SCC 1 (2017), specifically discussed and disparaged the Koushal decision’s treatment of constitutional privacy and the rights of LGBTQ people.


The Court’s January 8 Order in Johar v. Union of India Ministry of Law and Justice, Writ Petition No. 76/2016, by a three-judge panel including Chief Justice Dipak Misra, provided an extensive summary of the arguments against the constitutionality of Section 377, quoting extensively from the 2014 transgender and 2017 privacy rulings, particularly those passages critical of the Koushal decision, and granted the petitioners’ request that a larger panel of the Court be convened to reconsider that decision. Interestingly, only the Petitioners were present at the Court’s hearing on January 8, with the argument being presented by Senior Advocate Arvind Datar.  Nobody appeared from the government to oppose the request for reconsideration.  The Order emerged immediately after the hearing.


While the Order does not specifically state that all of the Petitioners’ arguments are correct, after concluding its summary of the arguments and what the Petitioners are seeking, the Court stated, “Taking all the aspects in a cumulative manner, we are of the view, the decision in Suresh Kumar Koushal’s case requires re-consideration. As the question relates to constitutional issues, we think it appropriate to refer the matter to a larger Bench.”


A different Bench of the Court is presently considering the curative petition that was filed by the NAZ Foundation, so there was some speculation in the Indian press that the two cases could be combined before that larger panel. “In the meantime,” wrote the Court, “a copy of the petition be served on the Central Agency so that the Union of India can be represented in the instant matter.  Let the matter be placed before Honorable the Chief Justice of India, on the administrative side, for consideration of the appropriate larger Bench.”


Indian jurisprudence is famous for its slow motion, but there was some optimistic speculation that an opinion from a larger Bench of the Court may emerge later this year. In light of the serious criticisms of the Koushal decision by other Benches of the Court, commentators were optimistic that the Delhi High Court’s original ruling striking down criminalization of consensual gay sex will ultimately prevail, and gay sex will become legal in the world’s second largest country.


The Inter-American Court’s ruling on January 9 came in response to a petition submitted two years ago by Luis Guillermo Solis, the President of Costa Rica, who had run for office on a pledge to expand LGBTQ rights in his Central American country. Opinion Consultiva, OC-24/17 (2017). In the face of legislative intransigence, Solis inquired whether Costa Rica was obligated under the American Convention on Human Rights to let same-sex couples marry.  He also inquired about transgender rights.  The Court, which actually sits in Costa Rica’s capital city, came back with a strong affirmation for LGBTQ rights.  The opinion is initially available only in Spanish. According to translations published in English-language media sources, the court said that governments subject to the Convention “must recognize and guarantee all the rights that are derived from a family bond between people of the same sex,” and that establishing a separate institution for same-sex couples, such as civil unions, was not adequate from the point of view of legal equality.  The governments must “guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all rights of families formed by same-sex couples without discrimination.”


However, recognizing the kind of legislative intransigence encountered in Costa Rica and many other Central and South American countries, where the Roman Catholic Church has a heavy influence on social policy, the court recommended that government pass “temporary decrees” while new legislation is considered.


The Inter-American Court, in common with the European Court of Human Rights, is not empowered directly to order a government to do anything. Compliance requires acquiescence, and sometimes the court has resorted to demanding that governments explain why they have not complied with its rulings.  For example, it took Costa Rica several years to come into compliance with a ruling by the Inter-American Court against bans on the use of in vitro fertilization.


President Solis reacted to the decision by calling for full compliance by the countries of the Inter-American Union. The Tico Times reported on January 10 that he told reporters, “Costa Rica and the other countries that have accepted the jurisdiction of the Inter-American Court must fully comply with the court’s opinion, respecting each country’s processing time, jurisdictional and administrative spaces.  Solis pointed out that Costa Rica’s compliance would require a “gradual process,” requiring consultation between the various branches of government and the political parties.


The Court also addressed a question of transgender rights, recognizing as a human right that transgender people should be able to register themselves using the name and sex with which they identify, thus lining up with those countries that have in recent years moved towards recognizing self-declared gender identity without interposing a requirement that the individual document surgical gender confirmation procedures.


Commented Solis, “The court’s opinion ratifies our commitment to guaranteeing people access to the rights they acquire through their personal relations, without any sort of discrimination.” In a formal press release, the government stated: “Love is a human condition that should be respected, without discrimination of any kind.  The State confirms its commitment to comply.”


The countries that are legally bound by rulings of the court include Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Surinam and Uruguay. Some of those countries still penalize gay sex, while others already have marriage equality: Colombia, Brazil, Uruguay and Argentina.  Litigation over marriage equality is pending in the Supreme Court of Panama.  In Mexico, same-sex couples can marry in several states and the capital district, and all of the states are required to recognize those marriages, while a Supreme Court ruling mandates that lower courts issue orders, called “amparos,” requiring local officials to allow particular same-sex couples (or groups of couples) who obtain the orders to marry.  The Inter-American Court’s ruling may hasten the spread of marriage equality to the remaining Mexican states.


Meanwhile, back in the European Union, Advocate General Melchior Wathelet’s preliminary ruling in the case of Relu Adrian Coman, a Romanian citizen who married Robert Clabourn Hamilton, an American citizen, in Brussels, Belgium, while Coman was living there and working for a European Union agency, may portend a significant advance for marriage equality in Europe. Coman v. Inspectorate General for Immigration, Case C-673/16 (January 11, 2018).  Coman sought to bring his spouse back home to Romania, but the Romanian government was unwilling to issue the kind of spousal visa that is routinely granted when Romanians contract different-sex marriages elsewhere in Europe.  Coman brought his case to the Constitutional Court of Romania, which referred the issue to the European Court of Justice for a determination of what obligation the country might have as a member of the Union.


Such matters are first presented to the office of the Advocate General (of which there are several), for an opinion advising the Court.  If the Court decides to follow the Advocate General’s recommendation, its ruling becomes law throughout the European Union.


In some respects, Wathelet’s opinion is narrow and technical, because it doesn’t address a broad question of rights, but rather the narrower question of interpreting the Directive that guarantees freedom of movement within the European Union, with an eye to breaking down nationality barriers that would inhibit the movement of labor across national lines.   Directive 2004/38 describes the “free movement of persons” as “one of the fundamental freedoms of the internal market.”  The Directive supports such freedom by requiring member states to grant freedom of movement to family members of their citizens, and of course a “spouse” is a family member, but the term “spouse” is not generally defined.  When the Directive was adopted in 2004, only two countries in Europe allowed same-sex marriage, but many others had registered partnerships for same-sex couples, so the Directive provides for free movement rights for such partners, but only “if the legislation of the host Member State treats registered partnerships as equivalent to marriage.”


In the case of Romania, not only is marriage defined as the union of a man and a woman, but the country’s marriage law specifies that same-sex couples may not marry, and the county provides no registered partnership status for same-sex couples. Thus, the question under EU law is whether the protection for family life and for spousal relationships would extend to same-sex spouses, overriding national law on the question of who is entitled to a residence visa (as opposed to the short-term entry visa of up to three months for tourists and business visitors).  The key to this, it proved, was the established practice both in this Court and the European Court of Human Rights to adjust the definitions of terms in reaction to social developments.


Wathelet quoted an earlier decision stating that “EU law must be interpreted ‘in the light of present day circumstances,’ that is to say, taking the ‘modern reality’ of the Union into account.” This is to avoid the law become static and placing a drag on economic and social development.  Wathelet noted that in a 2001 ruling, reflecting “present day circumstances” at that time, the Court had considered marriage to be “a union between persons of the opposite sex.”  But this does not reflect the “modern reality.”


“In fact,” he wrote, “while at the end of the year 2004 only two Member States allowed marriage between persons of the same sex, 11 more Member States have since amended their legislation to that effect and same-sex marriage will be possible in Austria, too, by 1 January 2019 at the latest. That legal recognition of same-sex marriage does no more than reflect a general development in society with regard to the question.  Statistical investigations confirm it; the authorization of marriage between persons of the same sex in a referendum in Ireland also serves as an illustration.  While different perspectives on the matter still remain, including within the Union, the development nonetheless forms part of a general movement.  In fact, this kind of marriage is now recognized in all continents.  It is not something associated with a specific culture or history; on the contrary, it corresponds to a universal recognition of the diversity of families.”


Wathelet also referred to decisions by the European Court of Human Rights, including those protecting the right of a national of a signatory state to the European Convention on Human Rights to bring a same-sex partner into the country. He also noted that European law now includes a ban on sexual orientation discrimination by Member States, and strong protection both under the European Union’s Charter and under the Human Rights Convention for “family life.”


He also contended that adopting a gender-neutral concept of spouse was consistent with the objective of the Directive, “to facilitate that primary and individual right to move and reside freely within the territory of the Member States which is directly conferred on citizens of the Union.” Freedom of movement would be impeded if lawfully married individuals could not bring the legal spouses with whom they have established a family relationship with them to return to live in their home country.


Thus, he recommended that the Court answer the questions posed by the Romanian Constitutional Court as follows: that “the term ‘spouse’ applies to a national of a third State of the same sex as the citizen of the European Union to whom he or she is married” for purposes of complying with Directive 2004/38 on freedom of movement.  As applied directly to Mr. Coman’s case, it means that his marriage to an American citizen while Coman was living in Belgium, a European Union country that allows same-sex marriages, gives his spouse a derivative right under the Directive to obtain, automatically, the same kind of spousal visa to enter and live in Romania that would be provided to a different-sex spouse.  Since Hamilton is not a citizen of any European Union Member State, his right is not direct and must be derived from the right of his husband to have Romania respect his marriage and family life, at least to the extent of allowing him to live together with his husband in his home country.


Reflecting the social divisions within the Union, several Eastern European nations – Latvia, Hungary, Poland and Romania – opposed this conclusion, while it was supported by submissions from the Netherlands and the European Commission.




European Justice Court Rules on Gay Asylum Cases from the Netherlands

Posted on: December 14th, 2014 by Art Leonard No Comments

Ruling on appeals by three gay people from Africa seeking asylum in the Netherlands, the European Court of Justice held that it was a violation of European human rights law for officials attempting to determine whether the applicants are gay to base their questioning solely on stereotypes about homosexuals, to carry out detailed questioning as to the sexual practices of the applicants, to require applicants to submit to “tests” to establish their homosexuality or to provide evidence such as films of the applicants engaging in homosexual conduct.  Furthermore, said the Court, it is inappropriate to decide that applicants are not credible merely because they did not declare their sexual orientation in their first encounter with authorities.  The ruling is expected to produce significant changes in how national immigration officials in Europe deal with gay asylum applicants.

The court preserved the anonymity of the applicants in reporting its decision, so the case is titled A, B & C v. Staatssecretaris van Veiligheid en Justitie, listing as defendant the Dutch agency that processes asylum claims.  The opinion was announced on December 2, 2014.

Asylum claims by refugees are governed by a complex body of international and national law.  The Convention relating to the Status of Refugees, signed in Geneva in 1951 as one of several “Geneva Conventions” that relate to such issues as the treatment of wartime prisoners and the populations of countries subject to military occupation, uses the term “refugee” to refer to somebody who does not want to stay in the country of which they are a citizen “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and are seeking refuge in another country where they do not fear persecution on those grounds.  There is now a substantial consensus among parties signatory to the Convention that “particular social group” can include sexual minorities, such as lesbian, gay, bisexual and transgender people.

The European Union has adopted its own Directive governing compliance with the Geneva Convention on Refugees, which adopts the same definition of refugee, and specifies how individuals seeking asylum should be evaluated by member nations.  Member nations themselves have adopted laws and regulations on this issue.  In general, the burden is on somebody who is applying for asylum to show that they fit into one of the categories, which can be difficult for gay asylum seekers when government officials are skeptical about their claims of being gay.  Their cases can become hopeless when, having spent their lives hiding their sexuality in their home countries, they are fearful about revealing this information to the first government officials they meet in their intended place of refuge.  As a result, in some cases they make up stories about other forms of persecution and only later, upon becoming comfortable with the idea of putting their sexuality forward as a ground for asylum, do they raise this issue, creating credibility problems due to the conflicts with their prior stories.

Even setting that aside, applicants may have a difficult time establishing that they are gay as new arrivals in a country if they don’t speak the language, don’t know anybody who can vouch for them, lack documentation from their home country that could establish their sexuality, and confront officials who are inclined to doubt anybody who does not strike them as stereotypically gay.  Matters are complicated by the occasional case where somebody pretends to be gay in order to win asylum and is found out, which encourages asylum officials to be even more skeptical about undocumented claims.

In the cases before the European court, for example, applicant A was deemed not credible by authorities on his first application, but filed a second application, “stating that he was prepared to take part in a ‘test’ to prove his homosexuality or to perform a homosexual act to demonstrate the truth of his declared sexual orientation.”  The authorities rejected his second application, stating that the credibility of his declared sexual orientation had not been established and that it was “not appropriate to rely only on the declared sexual orientation of the applicant for asylum without making any assessment of the credibility of that orientation.”

Applicant B was rejected on the ground that his statements about his homosexuality “were vague, perfunctory and implausible.”  The government asserted that because he came from a county where homosexuality was “not acceptable,” he should have been able to “give more details about his emotions and his internal awareness of his sexual orientation.”  Applicant C’s first application, which was rejected, stated grounds other than homosexuality.  He second application raised homosexuality and ran into the credibility problem of not having raised it the first time.  In support of his application, C gave authorities a video showing him engaged in “intimate acts with a person of the same sex” to try to prove his homosexuality, but he was rejected anyway when he was unable to answer various questions about how he had become aware of his homosexuality and about Dutch organizations for gay rights.

The administrative appellate process in the Netherlands provided no relief for these applicants, but ultimately a court identified as the Raad van State, concerned about the process for determining the bona fides of allegedly gay asylum applicants, referred the question to the European Court of Justice, expressing concern about how such an investigation could be carried out consistent with the applicable international and national laws.

The Court confirmed that European Union states are allowed to require some sort of confirmation of claims that asylum applicants are gay, so there had to be some sort of assessment process as to credibility.  However, the Court found it inappropriate for authorities to decide these cases on some categorical basis, requiring instead that decisions be made on a case-by-case basis.  In particular, said the Court, “While questions based on stereotyped notions may be a useful element at the disposal of competent authorities for the purposes of the assessment, the assessment of applications for the grant of refugee status on the basis solely of stereotyped notions associated with homosexuals does not, nevertheless, satisfy the requirements” of the legal provisions governing the decision-making process, “in that it does not allow those authorities to take account of the individual situation and personal circumstances of the applicant for asylum concerned.”  Thus, the inability of an applicant to answer questions that an assessor would believe would be easily answerable by a genuinely gay person should not necessarily lead to an adverse credibility determination, since it relied upon stereotypical assumptions about the behavior and knowledge of gay people.

Furthermore, the Court declared that fundamental human rights protected under European law should preclude questioning about the sexual practices of applicants, as violating the Charter protection for private and family life.  Assessors should not accept evidence such as videos of people having sex, because “the effect of authorizing or accepting such types of evidence would be to incite other applicants to offer the same and would lead, de facto, to requiring applicants to provide such evidence.”

Most importantly, the Court rejected the idea that somebody’s credibility was automatically compromised when they didn’t raise their sexual orientation at the first opportunity in the asylum process.  Said the Court, “having regard to the sensitive nature of questions relating to a person’s personal identity and, in particular, his sexuality, it cannot be concluded that the declared sexuality lacks credibility simply because, due to his reticence in revealing intimate aspects of his life, that person did not declare his homosexuality at the outset.”  Thus, the requirement of the Directive that applicants raise relevant grounds for asylum “as soon as possible” should be “tempered by the requirement imposed on the competent authorities. . . to conduct the interview taking account of the personal or general circumstances surrounding the application, in particular, the vulnerability of the applicant, and to carry out an individual assessment of the applications, taking account of the individual position and personal circumstances of each applicant.”

The Court’s ruling is particularly timely as various nations in Europe are facing a sharp increase in asylum applications from gay refugees from Africa, the Middle East and Russia, many of whom might have great difficulty providing the kind of documentation that is routinely available for political or religious dissenters who are fleeing with family and compatriots.

The Court’s opinion lists attorneys N.C. Blomjous as counsel for A and C. Chen as counsel for B, but does not identify counsel for C.  Six member nations submitted arguments to the Court, as did the European Commisson and the United Nations High Commissioner for Refugees.  The decision was rendered unanimously by a Grand Chamber of the Court consisting of thirteen judges.

European Court Rules on Equal Benefits Case for Same-Sex Couple

Posted on: December 12th, 2013 by Art Leonard No Comments

Responding to a request from a French court for an interpretation of European law, the 5th Chamber of the European Court of Justice ruled today, December 12, that an employee of a French bank who requested leave and a marriage bonus under the employer’s policy on the occasion of his entering into a pact civil (the French equivalent of a civil union) with his same-sex partner in 2007 had suffered direct discrimination on the basis of sexual orientation by the employer’s denial of the benefit under Article 2(2) of Council Directive 2000/78/EC, which implements the obligation for Member States to prohibit sexual orientation discrimination in employment.  The unanimous decision in Hay v. Credit agricole, Case C-267/12, constitutes a preliminary ruling which returns the case to the French Court of Cassation that is now considering Frederic Hay’s appeal from an adverse ruling by a local Labor Tribunal in Saintes and the Court of Appeal in Poitiers.

The Labor Tribunal and the Court of Appeal had focused on the differences between marriage and the PACS under French law at the time these events occurred.  The PACS, which are open to both different-sex and same-sex couples, provide a limited list of rights and thus were not intended to be an equivalent status to marriage, unlike, for example, the civil partnerships presently authorized under British law for same-sex couples.  (Effective March 29, 2014, same-sex couples will be able to enter into civil marriage in Britain.)  Finding that these differences were significant, the Tribunal and the Court of Appeal found that any discrimination here was indirect on the part of the employer, and justified by the French national policy of providing a different and lesser status open to same-sex couples.

The Court of Cassation referred to the European Court the following question: “Must Article 2(2)(b) . . . be interpreted as meaning that the choice of the national legislature to allow only persons of different sexes to marry can constitute a legitimate, appropriate and necessary aim such as to justify indirect discrimination resulting from the fact that a collective agreement which restricts an advantage in respect of pay and working conditions to employees who marry, thereby necessarily excluding from the benefit of that advantage same-sex partners who have entered into a [PACS]?”

Chamber 5 of the European Court, a five-member panel made up of judges from five different member countries of the European Union, unanimously concluded that the Council Directive did apply to this kind of employee benefit, but dismissed the relevance of the difference between marriages and the PACS, writing “it is required not that the situations be identical, but only that they be comparable and, on the other hand, the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned.”  The court referred to a prior ruling involving Germany’s registered life partnerships open to same-sex couples, and comparisons could be drawn to other national laws, such as the civil unions provided for same-sex couples in Austria.

“As regards the days of paid leave and the bonus which the provisions at issue in the main proceedings grant to employees on the occasion of marriage,” wrote the court, “it is necessary to examine whether persons who enter into a marriage and persons who, being unable to marry a person of their own sex, enter into a PACS, are in comparable situations.”  The court found that the PACS is “a form of civil union under French law which places the couple within a specific legal framework entailing rights and obligations in respect of each other and vis-à-vis third parties.  Although the PACS may also be concluded by persons of different sexes, and although there may be general differences between the systems governing marriage and the PACS arrangement, the latter was, at the time of the facts in the main proceedings, the only possibility under French law for same-sex couples to procure legal status for their relationship which could be certain and effective against third parties.”

Thus, the court found that entering into a PACS by a same-sex couple was comparable to entering into a marriage for a different-sex couple.  In the court’s view, this meant that Credit agricole’s marriage leave and bonus policy was a form of direct discrimination because of sexual orientation, not indirect discrimination. This was important, because indirect discrimination may be defended by reference to legitimate government aims, but direct discrimination may only be justified by grounds listed in Article 2(5) of the Directive: public security, maintenance of public order, prevention of criminal offenses, protection of health, and protection of the rights and freedoms of others.  The court found that none of these grounds would justify excluding same-sex couples from enjoying the benefit when they enter into a PACS.  Consequently, the court advised the French Court of Cassation that Article 2(2)(a) of the directive, the provision concerning direct discrimination, “must be interpreted as precluding a provision in a collective bargaining agreement . . . under which an employee who concludes a civil solidarity pact with a person of the same sex is not allowed to obtain the same benefits, such as days of special leave and a salary bonus, as those granted to employees on the occasion of their marriage, where the national rules of the Member State concerned do not allow persons of the same sex to marry, in so far as, in the light of the objective of the conditions relating to the grant of those benefits, that employee is in a comparable situation to an employee who marries.”

The court’s decision is very narrowly focused on the situation pertaining when Mr. Hay concluded his PACS with his partner.  The following year — perhaps in response to Mr. Hay’s complaint? — Credit agricole and the unions representing its employees amended its collective bargaining agreement to extend the marriage benefits to employees who entered into PACS, and in 2010 a general agreement to this effect was included in the bank’s national collective bargaining agreement, and the French Ministry for Labor Employment and Health extended this throughout the banking sector in France.  And, of course, since then France has legislatively opened up marriage to same-sex couples, making this controversy moot as to the future IN FRANCE.  But the opinion is significant because there are many Member nations subject to the Council Directive that do not provide same-sex marriage at present but do authorize some equivalent, such as a registered partnership or civil union, for same-sex couples, so the interpretive principle established in this opinion would carry over to them.

It may also be worth noting that the Chamber phrased its ruling in terms of a country that does not provide for same-sex marriages.  Presumably this means that the ruling no longer pertains to France going forward, even though PACS are still available for same-sex couples who do not desire to embrace the full legal status of marriage.  The court’s finding of discrimination was premised on the denial of marriage to same-sex couples, leaving the PACS the only way they could form a legally recognized relationship.  Although now the banking sector of France is working under a policy of treating those who enter into a PACS as equivalent to marriage for purposes of this type of benefit, it is not clear from this opinion how the matter will be handled in other sectors that might not be subject to the same policies.

Mr. Hay’s lawyer for this appeal is A. Lamamra.  The court received submissions from lawyers for Credit agricole, the governments of France and Belgium and the European Commission, as well as the Advocate General for the Council of Europe.

European Courts Issue Important Gay Rights Decisions on November 7

Posted on: November 8th, 2013 by Art Leonard No Comments

European courts issued three significant decisions affecting the rights of LGBT people in Europe on November 7, 2013.  In Minister for Immigration and Asylum v. X, Y & Z (Joined Cases C-199/12 to C-201/12), the European Court of Justice in Luxembourg, which is the highest court on questions of European Union law, ruled favorably on the right of lesbian and gay people to seek asylum in Europe based on fear of persecution of gay people in their home countries.  In Vallianatos v. Greece (Applications Nos. 29381/09 and 32684/09), a Grand Chamber of the European Court of Human Rights in Strasbourg, which has the final word on interpretations of the European Convention on Human Rights, ruled that Greece had violated the Convention by adopting a civil union law that excluded same-sex couples.  In E.B. v. Austria, Applications Nos. 31913/07, 37357/07, 48098/07, 48777/07 and 48779/07, a section of the Human Rights Court preliminarily ruled that Austria had violated the Convention by refusing to delete records of criminal convictions of men who had been charged with engaging in sex with teenage boys under a law that had subsequently been declared invalid and replaced with a new law adjusting the age of consent and circumstances governing such acts.

The case from the European Court of Justice was construing, in part, a Geneva Convention on refugees to which the United States is also a party, as are many other countries outside of Europe.  The Dutch government had, somewhat surprisingly in light of the status achieved by gay people under Dutch law, rejected asylum claims from gay people from Sierra Leone, Uganda and Senegal, all African nations in which homosexual acts carry significant penal sanctions and there is pervasive social disapproval of homosexuality.  Internal appeals resulted in a request from the Dutch appellate courts for a ruling by the European Court of Justice on the circumstances under which gay people from outside of Europe can seek refugee status in Europe under the Geneva Convention and European laws.

The Court’s opinion embraced ideas that will be familiar to those acquainted with the developing case law on these questions in the United States.  As a threshold matter, the Court concluded that gay people “must be regarded as forming a particular social group,” a necessary finding in order to apply the refugee protections.  If members of a particular group are subject to persecution because of such membership in a particular country, they may be entitled to a grant of asylum by a country that is bound by the Geneva Conventions and relevant European law.  The fact that homosexual acts are a crime is not dispositive of this question, but “a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution,” the Court said.  Further, “When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.”  In other words, if an “out” gay person would likely be targeted for persecution in the country of origin, he or she may qualify for asylum.

These were apparently rulings of first impression for the Court, and are binding throughout the European Union.  Thus, as a practical matter, the ruling signals that LGBT people from countries in Africa, the Middle East, the Americas and Asia that may impose heavy criminal penalties for homosexual acts are likely to prevail on claims for refugee status if they can make their way to a European Union country, and their case will be strengthened if they can show that they had already been targeted for persecution in their home country.

The European Court of Human Rights’ decision in the challenge to the Greek civil union law turned heavily on the progress that LGBT people have made in achieving legal recognition for their relationships in countries that are signatory to the Convention on Human Rights, because the Court takes note of such trends in deciding whether the Convention’s broadly worded protection for family life and requirements for equal treatment have been violated.  The plaintiffs relied on a 2010 decision by the Court in Schalk and Kopf v. Austria, in which the Court had acknowledged that a cohabiting same-sex couple living in a “de facto partnership” came within the scope of family life protected by the Convention.  Thus, the government of Greece was in the position of having to justify a deliberate decision it made when establishing its new civil union status in 2008 for excluding same-sex couples.

The idea of civil unions was embraced because of the increasing phenomenon of different sex couples living together without marrying, and frequently having children within the context of such relationships.  The government decided that it would be useful to create a status less formal and structured than marriage that would be available to such couples, partly to protect the interests of their children, but also to protect the interest of surviving partners to inherit and to address other property interests.  At the time the new law was being debated, there was considerable discussion about the decision to omit same-sex couples, which was opposed by the National Human Rights Commission and the Scientific Council of Parliament, but the Minister of Justice stated that “society today was not yet ready to accept cohabitation between same-sex couples.”  The legislature proceeded to adopt the measure as proposed by the government, despite warnings that it might be held to violate Greece’s obligations under the Convention.  In defending its action before the Court, the government argued that same-sex couples could achieve many of the same rights bestowed on civil union partners through private contracting, but the plaintiffs argued that not all of these could be achieved and there were also intangible aspects of legal recognition.

In order for a law to violate the Contention’s provision on discrimination, the Court would first have to determine whether the plaintiffs’ “situation is comparable to that of different-sex couples wishing to enter into a civil union.”  As to that, “The Court reiterates that same-sex couples are just as capable as different-sex couples of entering into stable committed relationships.  It therefore considers that the applicants are in a comparable situation to different-sex couples as regards their need for legal recognition and protection of their relationship.”  Rejecting the government’s “private contracting” argument, the Court said, “even if it were to be considered valid, it does not take account of the fact that the civil partnerships provided for by [the Greek law] as an officially recognized alternative to marriage have an intrinsic value for the applicants irrespective of the legal effects, however narrow or extensive, that they would produce.”  Further, “Same-sex couples sharing their lives have the same needs in terms of mutual support and assistance as different-sex couples.  Accordingly, the option of entering into a civil union would afford the former the only opportunity available to them under Greek law of formalizing their relationship by conferring on it a legal status recognized by the State.  The Court notes that extending civil unions to same-sex couples would allow the latter to regulate issues concerning property, maintenance and inheritance not as private individuals entering into contracts under the ordinary law but on the basis of the legal rules governing civil unions, thus having their relationship officially recognized by the State.”

As to Greece’s argument that its motivation in adopting civil unions involved protecting children, the Court pointed out that same-sex couples also raise children who need the same protection.  “The Government’s arguments focus on the situation of different-sex couples with children, without justifying the difference in treatment arising out of the legislation in questions between same-sex and different-sex couples who are not parents,” it also observed.  The Court also pointed out that the explanatory report issued by the legislature “offers no insight into the legislature’s decision to limit civil unions to different-sex couples.”

Perhaps most significantly, the Greek law’s exclusion of same-sex couples made it a significant outlier from the emerging trend in Europe towards legal recognition for same-sex couples.  The Court observed that nine member states allow same-sex marriages, and seventeen member states “authorize some form of civil partnership for same-sex couples.  As to the specific issue raised by the present case,” continued the Court, “the Court considers that the trend emerging in the legal systems of the Council of Europe member States is clear: of the nineteen States which authorize some form of registered partnership other than marriage, Lithuania and Greece are the only ones to reserve it exclusively to different-sex couples.” The Court also noted resolutions by the European Parliament calling on member states to extend legal recognition to same-sex couples.

“The fact that, at the end of a gradual evolution, a country finds itself in an isolated position as regards one aspect of its legislation does not necessarily imply that that aspect conflicts with the Convention,” the Court wrote.  “Nevertheless, in the view of the foregoing, the Court considers that the Government have not offered convincing and weighty reasons capable of justifying the exclusion of same-sex couples from the scope of [the civil union law],” and thus found a violation of the Convention, and ordered the government to pay damages to the plaintiffs for the deprivation of their rights, rejecting the Greek government’s argument that a declaration of rights would be “sufficient redress for the non-pecuniary damage sustained by the applicants.”  The plaintiffs were awarded 5,000 Euros each as compensation, and Greece was also taxed with the Plaintiffs’ litigation costs.

In E.B. v. Austria, the Human Rights Court considered the refusal by Austrian authorities to “delete the criminal convictions from [the applicants’] criminal records, even though the offence in question had been abolished.”  Each of the five applicants had been convicted of engaging in “homosexual acts with consenting adolescents within the age bracket of 14 to 18.”   The Constitutional Court of Austria found the relevant criminal law provision to be unconstitutional in 2002, largely on grounds that the provision in question applied only to men having sex with boys, there being no parallel application to girls.  Subsequently, Austria repealed the provision in question, adopting a new law revising the age of consent downward and adjusting the circumstances under which criminal penalties would apply to sexual acts involving teenagers, turning on issues such as the maturity of the teen, among other factors.  However, the new law did not provide for adjusting the status of persons who had been convicted under the old law, and Austrian authorities rejected attempts by the plaintiffs to have their convictions reconsidered or their records corrected.

The Court found that “the storing by a public authority of information relating to an individual’s private life amounts to an interference within the meaning of Article 8, and that the protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention.”  Noting that criminal laws get revised from time to time, the court  observed that in the normal event of such revisions, there would be no obligation to adjust or expunge criminal records just because of such legislative changes.  “The situation is different, however, as regards convictions under Article 209 of the Criminal Code,” said the Court, because the legislature had repealed and replaced the provision after the Constitutional Court found it to be unconstitutional.  Thus, the new law was adopted “not as part of a general process to adapt the Criminal Code to respond to the needs of a changing society, but to eliminate a provision that was in contradiction to the Federal Constitution.”

“Since keeping an Article 209 conviction on someone’s criminal record may have particularly serious consequences for the person concerned,” wrote the Court, “the legislator, when amending the relevant legal provision in order to bring it into conformity with modern standards of equality between men and women, should have provided for appropriate measures, such as introducing exceptions to the general rule.  The Government, however, have not provided any explanation as to the purpose of leaving unamended the provision on maintaining convictions on the criminal record,” so the Court concluded that Article 8 was violated.    The Court awarded the applicants damages of 5,000 Euros each, and also awarded litigation costs.  Because this is a ruling by one section of the Court, it is subject to appeal by the Austrian government.