Cletus P. Lyman ()
LGBT rights are trending in opposite directions internationally. Latin America and Europe are recognizing same-sex marriage, but Nigeria and Uganda have enacted extreme penalties for same-sex relations. Russia has criminalized certain forms of association and expression.
Two recent judgments of the Supreme Court of India sharply contrast. One two-judge bench of the court recriminalized certain consensual acts of adults in private. Then another two-judge bench declared that transgender persons be treated as a third gender for the purpose of safeguarding their rights.
In 2010, Argentina became the first country in Latin America and 10th in the world to recognize same-sex marriage despite vehement religious opposition. This was done legislatively during the last presidential campaign in which Cristina Fernández de Kirchner was reelected. Commentators generally viewed Kirchner’s initiative in support of marriage as an outreach to the liberal voters of Buenos Aires. The principal opposition was the leadership of the Catholic church, primarily Cardinal Jorge Mario Bergoglio, now Pope Francis. According to the National Catholic Register, he said: “In the coming weeks, the Argentine people will face a situation whose outcome can seriously harm the family. … At stake is the total rejection of God’s law engraved in our hearts. … Let us not be naive: this is not simply a political struggle, but it is an attempt to destroy God’s plan. It is not just a bill (a mere instrument) but a ‘move’ of the father of lies who seeks to confuse and deceive the children of God.”
The Mexican Federal District has had same-sex marriage since 2010. Brazil and Uruguay followed their neighbor Argentina in 2013.
Same-sex marriage became legal in Portugal and Iceland in 2010, in Denmark in 2012, in France in 2013, and in England and Wales in 2014. In April, a court in Grosseto, Italy, in the region of Tuscany, ordered the registration of a foreign same-sex marriage, holding that Italian law did not prohibit recognition. That ruling is on appeal.
In June 2013, the Russian legislature enacted a prohibition on “homosexual propaganda,” avowedly to protect minors, but capable of being used to prosecute dissemination of information to the public generally, including by the Internet.
On Jan. 13, President Goodluck Jonathan of Nigeria signed into law a bill prohibiting same-sex relations and gatherings.
On Feb. 24, President Yoweri Museveni of Uganda signed into law a bill expanding prohibitions relating to same-sex relations and enhancing penalties, including life imprisonment for “aggravated” homosexuality. One element of aggravation is living in a same-sex marriage. Unusual features include extraterritorial application to Ugandans abroad and criminalization of failure to report homosexuals. Ugandan politicians expressed resentment of European and U.S. pressure.
On Dec. 11, 2013, Koushal v. Naz Foundation, Indian Supreme Court, Civ. App. No.10972, reversed the Delhi High Court, which had held that Section 377 of the Indian Penal Code was violative of Articles 14, 15 and 21 of the Indian Constitution, insofar as it criminalized consensual acts of adults in private. The Supreme Court brushed aside challenges that the statute was irrational, discriminatory against the LGBT population and violative of privacy, autonomy and dignity. On Jan. 21, the Supreme Court denied a petition to review the Koushal judgment, making it final.
Among the noteworthy aspects of Koushal: The Health Ministry submitted an affidavit estimating that the number of men having sex with men was 1.2 million (in a country with a population of more than 1.2 billion). Koushal criticized the lower court for excessive citation of authorities from foreign jurisdictions. One of the two justices stepped down the day Koushal was decided.
On April 15, National Legal Services Authority v. India, Civil Original Jurisdiction No. 400 of 2012, recognized a third gender, relying on Articles 14 and 21 of the Indian Constitution. The judgment noted the strong historical presence of transgender persons in Hindu mythology and religious texts, and discussed at length the role of transgender persons in Indian society, including in the Mughal empire of medieval India. The judgment used traditional names for members of the transgender community: Hijras, Kothis, Aravanis, Jogappas and Shiv-Shakthis.
In contrast to Koushal, National Legal Services relied upon authorities from Argentina, New South Wales, the United Nations and “a distinguished group of human rights experts” who unanimously adopted the Yogyakarta Principles, so named because they were adopted in Yogyakarta, Indonesia, on Nov. 9, 2006. Of local interest, the judgment also cited Katherine M. Franke’s “The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender.”
Given the structure of the Indian Supreme Court, it is unclear if Koushaland National Legal Services can be reconciled. The full court has 30 judges, but it appears the full court never participates in one case. The largest bench is five judges.
A curative petition, an extraordinary remedy, has been filed against Koushal, and the Supreme Court has agreed that five judges will hear oral argument, including the chief justice, one of the judges who decided the case Dec. 11, 2013, and one who denied review Jan. 21.
National legal experts have said that U.N. bodies, national courts, government commissions, the Council of Europe and more have endorsed the Yogyakarta Principles.
The Yogyakarta Principles require states, among other things, to end discrimination, to promote affirmatively human rights of persons irrespective of sexual orientation, and to give full recognition to self-identified sexual orientation and gender.
The Yogyakarta Principles protect the right to freedom of expression and opinion on matters of sexual orientation and gender identity. Russia is a member of the Council of Europe, subject to the European Court of Human Rights in Strasbourg, France, where Russia is often a respondent. In 2011, Alekseyev v. Russia, ECHR Application Nos. 4916/07, 25924/08 and 14599/09, fined Russia for Moscow’s denial of permits to hold LGBT events and marches.
To the extent LGBT rights are seen as Western ideas being imposed from outside the country, opposition is mixed with xenophobia. National Legal Services‘ reliance on Indian cultural and historical sources, in addition to international human rights authorities, may point the way to successful arguments in other jurisdictions. •
CLETUS P. LYMAN is one of the founders of Lyman & Ash in Philadelphia. His practice includes constitutional law, including representing plaintiffs in an action under the Pennsylvania Constitution challenging Pennsylvania’s limitation on marriage to one man and one woman. He is a director and past chair of Gay & Lesbian Lawyers of Philadelphia (GALLOP), a member of the Legal Industry Council of the National Gay & Lesbian Chamber of Commerce, and a past member of the International Lesbian and Gay Bar Association.