Same Sex Marriage
UK parliament votes to extend same-sex marriage and abortion access in Northern Ireland
July 10, 2019
The UK Parliament on Tuesday voted in favor of two amendments that will compel the British government to legalize same-sex marriage and liberalize abortion in Northern Ireland (NI), if NI cannot reestablish its devolved government before October 21, 2019.
NI is the only province in the country that does not allow same-sex marriage and forbids abortion except when the mother’s life is at risk. The amended Northern Ireland (Executive Formation) Bill is subject to a future executive who could potentially overturn or amend the law.
In June 2018 the UK Supreme Court found NI’s abortion law incompatible with Article 8 of the European Convention on Human Rights (the right to respect for one’s private and family life) but ultimately held that, because the Northern Ireland Human Rights Commission did not have standing to bring the challenge, the court did not have the power to declare the need to change the law.
Hong Kong Ruling Strengthens Rights Protection on Same-Sex Relations
June 29, 2019
Nearly 120 years after Hong Kong made sodomy punishable by a possible life sentence, a recent court ruling marks a further step toward completely decriminalizing same-sex relations.
In 2007, Hong Kong scrapped its British-era sodomy law. But, for over a decade, several remaining provisions in its Crime Ordinance continued to single out male same-sex relations, either through disproportionate sentencing or by specifically criminalizing sexual acts between men. In 2017, an activist, Yeung Chu Wing, brought a lawsuit challenging the constitutionality of seven discriminatory provisions.
On May 30, the Hong Kong High Court struck down the four offenses that applied specifically to sexual relations between men and eliminated the discriminatory aspects of three other provisions. With this ruling, the court consolidated the decriminalization process by eliminating residual discriminatory provisions in the criminal code.
The efforts form a part of the global trend toward abolishing discriminatory colonial-era laws that criminalize same-sex relations. In 2018, courts in India and Trinidad and Tobago both ruled that laws that criminalized same-sex relations are unconstitutional. This year, Botswana decriminalized same-sex conduct, but there was a setback in Kenya, where the court upheld similar discriminatory laws.
Hong Kong’s justice secretary did not contest the four scrapped provisions. But she asked the High Court to retain the remaining three provisions by making them non-discriminatory.
The four uncontested provisions criminalized “procuring others” to engage in anal intercourse, “gross indecency” with or by a boy under the age of 16, “gross indecency” between men otherwise in private, as well as “procuring gross indecency” between men. All four were struck down as unconstitutional by the High Court. By doing so, the court was mindful that sexual offenses against minors are covered by other provisions that are gender-neutral and non-discriminatory.
The court explained in detail why the four provisions were unconstitutional. Judge Thomas Au eloquently grounded his analysis in the fundamental principle of equality, invoking article 25 of the Hong Kong Basic Law and article 22 of the Hong Kong Bill of Rights. He reasoned that these four provisions punished sexual intercourse between men, while there are no comparable offenses between women or between a man and a woman. The court held that the differential treatment targeting sex between men is discriminatory in nature and violates equal protections.
The remaining three provisions were challenged because they imposed either differential sentencing or age of consent provisions that disproportionately punished sexual relations between men.
For example, one of the provisions punished “gross indecency with the mentally incapacitated” only when it is between men. In dealing with this provision, the court held that all terms “a man” must be read as “a person” for purposes of this provision. Through such remedial interpretation techniques, the court rendered the three provisions gender-neutral or equalized the age of consent, making them compliant with the constitution.
Hong Kong’s Court of Final Appeal struck down the city’s sodomy law in the 2007 case Secretary for Justice v. Yau Yuk Lung, reasoning that the law only criminalized sexual intercourse between men and was therefore unconstitutional. Following the same principle in applying the doctrine of non-discrimination, this current ruling extends equal protection by scrapping or by judicially interpreting the remaining discriminatory provisions in the Crime Ordinance — thus completing the decriminalization process in Hong Kong.
The criminalization of same-sex relations contradicts the fundamental principles of equality and nondiscrimination under international law. Repealing laws that punish consensual same-sex relations from statute books is an essential step toward eliminating discrimination on the basis of gender identity and sexual orientation.
The recent moves toward decriminalization demonstrate the significant role that the judiciary can play in safeguarding the rights of minorities, especially in communities with repressive and unjust laws. Despite residing in their different jurisdictions with different societal and cultural norms, a growing number of courts are in agreement that human dignity, autonomy, and equality must be afforded to all.
Taiwan parliament legalizes same-sex marriage
May 17, 2019
The Legislative Yuan of the Republic of China (Taiwan), the country’s parliament, approved a bill Friday legalizing same sex-marriage in the country.
In May 2017 the country’s highest court, the Judicial Yuan, mandated that the country legalize same-sex marriage within two years. However, a non-binding referendum held in late 2018 showed widespread resistance to marriage equality. Nevertheless, the Legislative Yuan approved the bill with a 67-22 vote on Friday, becoming the first Asian country to legalize same-sex marriage and the thirty-first country in the world to recognize same-sex partnerships.
The bill provides for marriages between Taiwanese partners of the same sex, but only permits limited adoption rights. In a statement made to the BBC, Marriage Equality Coalition Taiwan leader Jennifer Lu said that the bill was a great step forward, but “still not full marriage rights; we still need to fight for co-adoption rights, and we are not sure about foreigner and Taiwanese marriage, and also gender equality education.”
Taiwan proposes same-sex marriage Bill
February 22, 2019
The executive body of the Republic of China (Taiwan) submitted a bill to the legislature Thursday to legally recognize same-sex marriage.
In astatement, Premier Su Tseng-chang acknowledged the national referendum last year, where the majority of the island nation’s populace voted against recognizing same-sex marriage. Su also maintained the Executive’s Yuan’s position that the decision of the Constitutional Court stands, and carries the same weight as the nation’s constitution, itself. Despite this acknowledgement, Su stated that it is not the Executive Yuan’s position that the the country’s Civil Code should be amended.
In May 2017 the Constitutional Court of the Republic of China ruled, in its Opinion No. 748, that Articles 972, 973, 980 and 982 under Chapter II of the Civil Code pertaining to marriage was unconstitutional. Specifically, the civil code provisions referred to above restrict marriages to those between a man and a woman. The court based its analysis on Articles 7 and 22 of the Constitution, which broadly guarantees equal protection to all citizens under the law. The Constitutional Court noted that the government has been unsuccessful with producing legislation that would extend recognition marriages to same-sex couples. The Judicial Yuan required the government to amend the Civil Code within two years of its decision. As of May 25, 2019, the deadline for the Legislature would have expired. Should the Legislature fail to meet this deadline, same-sex couples may proceed with their marriage unions, regardless of whether the Civil Code has been amended.
Officially, the bill reflects the Executive Yuan’s position that the Constitutional Court’s opinion should be implemented. Despite no proposed amendments to the existing Civil Code, the draft of the bill addresses what defines a same-sex union, eligibility criteria, as well as provisions regarding property, custody, conflict, and dissolution. Interestingly, the bill designates same-sex unions as “第二條關係”, which roughly translates to a “second relationship.” It appears the bill intends to circumvent the Executive Yuan’s not amending of the Civil Code by stating that the marriage provisions under the Civil Code shall apply to the parties specified under this bill.
ECJ rules ‘spouse’ includes same-sex couples under freedom of residence law
June 05, 2018
[JURIST] The European Court of Justice (ECJ) [official website] ruled [judgment] Tuesday that even if an EU country’s government has not authorized same-sex marriage, same-sex couples must still be offered the same residency rights as heterosexual couples. Leer el resto de esta entrada »
Austria Constitutional Court strikes down law banning same-sex marriage
December 05, 2017
[JURIST] Austria’s Constitutional Court [official website, in German] ruled [text, PDF, in German] Tuesday that a 2009 law that allowed same-sex couples to enter registered partnerships but not to get married was unconstitutional.
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