Sexual Orientation & the Law

It doesn’t care if your boss fires you because you happen to be a Sagittarius. But a hiring policy that requires a college degree could land him in court. Discrimination law can be counter-intuitive and controversial. Marrying doctrine from five jurisdictions with contemporary political philosophy, this book provides a theoretical defence of this now maturing legal project. More fundamentally, the value of discrimination law is to be found in its enabling us all to lead flourishing lives.

Part I gives a theoretically rigorous account of the identity and scope of discrimination law: what makes a legal norm a norm of discrimination law? What is the architecture of discrimination law? Unlike the approach popular with most textbooks, the discussion eschews list-based discussions of protected grounds, instead organising the doctrine in a clear thematic structure.

This definitional preamble sets the agenda for the next two parts. Part II draws upon the identity and structure of discrimination law to consider what the point of this area of law is. Attention to legal doctrine rules out many answers that ideologically-entrenched writers have offered to this question. The real point of discrimination law, this Part argues, is to remove abiding, pervasive, and substantial relative group disadvantage. This objective is best defended on liberal rather than egalitarian grounds.

Having considered its overall purpose, Part III gives a theoretical account of the duties imposed by discrimination law. A common definition of the antidiscrimination duty accommodates tools as diverse as direct and indirect discrimination, harassment, and reasonable accommodation. These different tools are shown to share a common normative concern and a single analytical structure. Uniquely in the literature, this Part also defends the imposition of these duties only to certain duty-bearers in specified contexts. Finally, the conditions under which affirmative action is justified are explained.

This paper argues that the anti-sex discrimination provision of the Philippine Labor Code also protects lesbian, gay, bisexual, and transgender (LGBTs) individuals against workplace discrimination. It won the 2011 Perfecto V. Fernandez Prize in Labor Law, annually awarded by the University of the Philippines College of Law.

The aim of this research was to improve understanding of the practice and to address the following four research questions:
1. What forms does conversion therapy take?
2. Who experiences conversion therapy and why?
3. What are the outcomes of conversion therapy?
4. What measures have been taken to end conversion therapy around the world?
In order to answer Questions 1-3, a rapid evidence assessment was conducted examining research published from January 2000 to June 2020. Forty-six published studies were identified. Most of the evidence identified was specifically focused on conversion therapy aimed at changing sexual orientation, with only five articles that specifically addressed conversion therapy to change gender identity. A qualitative study was also conducted to gather evidence on the experiences of people in the UK who had undergone conversion therapy. Thirty individuals were interviewed (16
men, 12 women, 2 non-binary persons) who had experienced sexual orientation change efforts
(24), gender identity change efforts (3) or both (3).
To answer Question 4, an additional search of the grey literature was conducted to identify measures taken around the world to end conversion therapy.
Modern forms of conversion therapy appear to largely take the form of talking therapies and spiritual interventions. There is evidence that these forms of conversion therapy can be harmful but there is no robust evidence that identifies whether certain techniques or practices used by
conversion therapists are more or less harmful than others. The evidence base is larger for sexual orientation change efforts than for gender identity change efforts. A growing number of legal jurisdictions are legislating to restrict conversion therapy. The scope of such laws varies and due to many legislative measures being relatively recent there is little evidence on what are the most effective policies for ending conversion therapy.

Increasingly, challengers to antipolygamy legislation have framed polyamory as a sexual orientation, arguing that some people are immutably predisposed toward forming multiple relationships. Drawing on a qualitative study of 40 bisexual women in Toronto, Canada, this article argues that polyamory and monogamy are better viewed as strategies of sexual expression rather than as immutable orientations. Such an approach accommodates identity shifts between monogamy and polyamory that enable women to manage and negotiate their visibility as bisexuals. Viewing monogamy and polyamory as strategic identities can help health care practitioners more accurately assess their clients’ needs and health risks.

State-Sponsored Homophobia is the International Lesbian, Gay, Bisexual, Trans and Intersex Association's annual flagship publication. It is an in-depth guide to what law we know exists in the world, has regional essays by legal experts and advocates, and contains maps and charts illustrating such laws.

MERGING IS SEX OBVIOUSLY,  NORMAL MERGING IS KNOWING THE PAST, PRESENT AND FUTURE OF BOTH BEINGS, NO YOU OR I = ONENESS,  THE TWO ANUs MERGE – IF ONE IS AN ATTACK, THEN THE ORIGINAL ANU BECOMES SMALLER, DUMBER AND WEAKER, WHICH IS WHAT IS GOING ON HERE. 

AND - OUR "REALITY" UNMASKED

Sexual orientation is the idea that everyone is either homosexual, heterosexual or bisexual and that this is a defining characteristic of individuals. Social constructionist approaches, however, have
provided a strong challenge to this notion, demonstrating that these categories are historically contingent, produced through human interaction rather than the effect of human essence. The greater debate revolves around how to organise politically in response to the suffering resulting from the processes of categorisation and stigma integral to the everyday production of 'sexual orientation'. Early political responses by women and men with same-sex desires organised around a politics of sameness, that is a politics of identity, largely perceiving sexual orientation to be a characteristic of individuals which could be addressed through claims of equality. Differences of gender, 'race', class
and sexuality challenged the possibilities of identity politics by demonstrating that 'sexual orientation' could not be isolated as a singular oppression. Building on these lessons and inspired by
French poststructuralism and new developments in sexual activism, queer theory advocated instead a radical politics of difference, suggesting that identity politics can only continue to produce the logic of identity, complicit in the production of oppression. However, a politics of difference is largely
inconsistent with the individualism upon which liberal 'democratic' State apparatuses depend. Rather than abandoning the successes of identity politics in achieving political reform through lobbying, some have advocated an intimate or sexual citizenship which attempts to integrate the importance of difference with the obvious practicality of identity and right claims. Instead, I advocate exploration of practical possibilities for a radical politics of difference. In particular, I suggest that anarchism is
consistent with the insights of French poststructuralist and queer theories while providing a tradition of practical politics. In order to address questions of political practice, I had to simultaneously
develop a better understanding of people's experiences of 'sexual orientation'. I chose to interview people involved in sexual relationships with partners who had a different sexual orientation identity than they did, feeling that people in these situations would have valuable insights due to their necessarily explicit negotiation of the borders of sexual orientation. The narratives produced in
interviews with 16 participants supported the development of an anarchist framework of analysis. In these terms, sexual orientation is not a characteristic of individuals, but is produced through Statelike practices of representation and policing. To use Deleuze and Guattari's formulation, sexual orientation is a state-form. Despite these pressures to conform, none of the participants were entirely complicit in the ongoing production of sexual orientation; they resisted. Participants' identities, desires and relationships overflowed the containment of state-forms. In resisting orientation, they actively produced alternative realities in conjunction with their partners and other people. In contrast
to the representation of the State and sexual orientation, the participants experienced autonomy. This process involved the production of flexible and negotiated boundaries unlike the rigid borders of state-forms. If, as queer theorists suggest, the hetero/homo division is central to the organisation of social life in the overdeveloped world, then resistance to that division must be very difficult. What enabled the participants to resist in such overt ways was the development of alternative ways of thinking and a sense of emotional entitlement, as advocated in anarchism. The anarchist commitment to the inseparability of ends and means results in forms of practice that are consistent with the desired aim of social organisation without domination, where individuals are highly capable of co-operating to fulfill shared desires and also flexible enough to allow for individual freedom, equally important for intimate relationships and democratic social organisation. Whether in terms of obedience to State authority or to rigid 'truths' of sexual relationships and desires, capacities for
resisting orientation must necessarily be the same. In conclusion, this analysis encourages an alternative to both sexual citizenship and queer theory: anarchism as an ethics of relationships. This
is consistent with the anarchist tradition as well as another, originating in feminist thought, that connects notions of 'sexual orientation' to wider political systems.

International refugee law has been structured so that claimants must fit themselves into narrowly defined categories: the Canadian Immigration Act requires that refugee claimants establish a well-founded fear of persecution based on one of the enumerated grounds, namely race, religion, nationality, membership in a particular social group, or political opinion. As sexual orientation is not enumerated, many lesbian and gay asylum seekers have attempted to establish their claim on the basis of "membership in a particular social group." The 1993 Supreme Court decision in Canada (A.G.) v. Ward has clarified that sexual orientation is a ground upon which a refugee claimant may claim membership in a particular social group because it is an innate or unchangeable characteristic. The decision in Ward, while a positive development, inappropriately classifies sexual orientation as an immutable personal characteristic. It suggests that lesbians and gay men are deserving of international protection only because they cannot change the personal attribute for which they are persecuted. Instead, refugee status should be granted because lesbians and gay men have a common social identity which is ascribed an inferior social and political status by their persecutors.

Document préparé pour la Section de la protection des réfugiés de la Commission de l’immigration et du statut de réfugié du Canada dans le cadre d’une séance de perfectionnement professionnel sur l’orientation sexuelle, l’identité sexuelle et le processus d’octroi de l’asile. Le document passe en revue les faits nouveaux et les questions concernant particulièrement les lesbiennes, les gais, les bisexuels, les transgenres et les intersexués, ainsi que le processus de détermination du statut de réfugié au Canada.

This annotated bibliography gives an account of legal and social sciences research sources related to refugee claims based on sexual orientation and gender identity. The bibliography, which focuses primarily on English language publications, includes close to 200 items that fall into the following two categories of research sources:

(1) scholarly publications on lesbian, gay, bisexual, transgender and intersex (LGBTI) refugees and asylum-seekers and the refugee determination process;
(2) reports from international, inter-governmental and non-governmental organizations on the same topic.

Research sources are first organized topically according to the definition of a Convention refugee under the 1951 United Nations Convention relating to the Status of Refugees. As a second listing, a geographical classification is provided of the sources that focus on specific countries or regions. Finally, included is an alphabetical listing by author of all of the research sources we were able to locate for this project.

Why the Eweida case (2013) is widely considered revolutionary in terms of freedom of Religion? What is the state of art regarding the freedom from discrimination on grounds of sexual orientation? In this case note I illuminate the ECHtR legal reasoning and its major focal points.

This paper engages with the South African Constitutional Court's sexual orientation jurisprudence and argues that despite some "queer" moments in earlier judgments, the jurisprudence has fallen back on relying on heteronormative notions of sexual citizenship.

When problems related to sexual orientation and gender identity are raised in relation to refugee determination proceedings, many advocates, refugee lawyers and refugees consistently call on adjudication authorities to mandate continuing professional training for personnel involved in LGBT refugee cases. For instance, the 2011 report Fleeing Homophobia on LGBT asylum claims in Europe contains explicit references to training in its recommendations. The United Nations High Commissioner for Refugees has also raised the issue of training in their 2008 Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity. While calls for training have sometimes outlined specific competencies to be developed by adjudicators, for the most part proponents fail to be specific about what type of professional development will result in better decision-making in LGBT refugee cases. By first considering the objectives and goals of sexual orientation and gender identity training for refugee personnel, this paper will argue that ‘LGBT Cultural Competency Training’, an approach developed in the health and social work fields, is an appropriate model for the refugee context. It would conceptualise more clearly the kinds of professional development interventions that are required to improve the refugee determination process, and it would also help in targeting training modules to be most effective. The author will also highlight the limitations of the tool and caution that LGBT Cultural Competency Training is not a cure-all for the full range of problems facing LGBT refugees.

This essay looks at the criminalisation in the South Asian Commonwealth, drawing upon application of human rights, also vigilant of issues beyond the law, and exploring the potential of decriminalisation. It is arranged in four parts: part 1 describes the nature and abuse of criminalisation. Part 2 gives an account of the application of human rights. Part 3 goes beyond legal issues, building upon perspectives of affected individuals and activists. Part 4 explores the potential of decriminalisation.

U ovom radu autorka će se baviti pitanjem ostvarivanja zajemčene slobode mirnog okupljanja i zabranom diskriminacije na osnovu seksualne orijentacije. Zabrana diskriminacije i sloboda mirnog okupljanja su predmet kako međunarodnih dokumenata tako i domaćeg pozitivnog prava. Glavni naglasak u radu će biti na zabrani Parade ponosa koja je trebala da se održi u Beogradu u oktobru 2011. godine i zapravo na pravima i slobodama koja su odlukom o zabrani održavanja Parade prekršena odnosno uskraćena pripadnicima LGBT populacije u Srbiji. Nedavno se i Ustavni sud Republike Srbije oglasio po tom pitanju tako što je 22. decembra 2011. godine usvojio ustavnu žalbu organizatora Parade ponosa 2009. godine. Ovom odlukom Ustavni sud je zauzeo stav da su državni organi Republike Srbije zabranom Povorke ponosa 2009. godine zapravo prekršili Ustav Republike Srbije, zbog čega je ta odluka od velikog značaja za ovu problematiku i sam sistem ostvarivanja i zaštite ljudskih prava i osnovnih sloboda kod nas.

Every former British colony in South Asia has retained colonial laws that criminalize sexual activity between persons of the same sex. There are intensifying calls for the repeal of such laws, especially as western states have moved towards ending all forms of discrimination on the basis of sexual orientation. This article examines the persistence of laws that criminalize same-sex relations in South Asia, with particular attention to the less studied case of Sri Lanka. I argue that recent western trends do not predict the decriminalization of same-sex relations in South Asia and indeed, may make it more difficult to achieve.
The article highlights four socio-cultural barriers to decriminalization in South Asia. These include; (i) a wariness of ‘repeat colonization’ by ascendant social norms that are popularly associated with the West; in this instance, LGBT civil rights, (ii) the predominance of the extended family unit and multi-generational households, which inhibit notions of intimacy and privacy that are critical to popular support for decriminalization, (iii) widespread corruption, which underlies resistance among the police to repealing criminal provisions that can be used for inducing bribes, and (iv) the elevated legal status of certain religions, which helps to legitimize other types of discrimination. By comparing the legislative inertia in Sri Lanka and other South Asian countries to successful decriminalization elsewhere in Asia – including Nepal, Thailand and Hong Kong – I argue that a transformative change of at least some of these socio-cultural factors is a prerequisite to decriminalization.

Este texto plantea que, en las dos últimas décadas, el Derecho Internacional de los Derechos Humanos ha sido un freno para el reconocimiento del matrimonio igualitario en el plano supranacional. Para el autor, los casos sobre la materia resueltos por instancias como el Comité de Derechos Humanos, la Comisión Interamericana de Derechos Humanos o el Tribunal Europeo de Derechos Humanos, habrían sido presentados por miembros del colectivo LGBTI en momentos poco estratégicos, lo que ha generado un entramado jurisprudencial negativo que sólo recién ha comenzado a revertirse.

The idea of European values has never played a central role in my research. Being a socio-legal scholar focused on human rights issues in the European context, I have always referred more specifically to particular legal rights, especially in relation to children’s rights, refugee rights and various aspects of the right to equality. Yet rights are inextricably linked to values: European societies like to see themselves as cherishing a catalogue of human rights that is central to their identity and every European country has some sort of bill of rights or text of a constitutional nature that contains various fundamental rights. In that sense, my work is also about values: the value of human dignity, of religious freedom, of equality, and so on.

I would have immense difficulties defining European values. I suspect one would get as many different answers as different people asked this question. I would like to think that amongst such European values we can include democracy, equality, human dignity, and so on. But that does not mean these values are only, mainly or particularly European in any sense, as many countries and societies around the world also cherish and share such values. There is nothing intrinsically European about these values, and even history can show this, despite pervasive narratives that try to convince us otherwise. Instead, what matters is that these are values that we espouse and protect.

European values inevitably have a personal value – in my particular case for several particular reasons. Having been born and grown up in Portugal, where democracy was only re-conquered in the 1970s and slowly solidified in the 1980s, cherishing the right to vote and freedom of speech was always crucial in my mind. And being gay has meant that I was always acutely aware of the importance of equality and the fight against discrimination, not only on grounds of sexual orientation, but on grounds of all other personal characteristics. Moreover, having had the privilege of taking part in several student exchange programmes and being yet another member of the ‘Erasmus generation’, I value immensely the right to education, the right to free movement, intercultural communication and respect for minorities. Despite the limits of cultural relativism and the need to hold on to human rights standards, we need to strive for much better knowledge and understanding of cultural differences. The private and the public are inextricably intertwined.

Questions of gender have strongly influenced the development of international refugee law over the last few decades. This volume assesses the progress towards appropriate recognition of gender-related persecution in refugee law. It documents the advances made following intense advocacy around the world in the 1990s, and evaluates the extent to which gender has been successfully integrated into refugee law. Evaluating the research and advocacy agendas for gender in refugee law ten years beyond the 2002 UNHCR Gender Guidelines, the book investigates the current status of gender in refugee law. It examines gender-related persecution claims of both women and men, including those based on sexual orientation and gender identity, and explores how the development of an anti-refugee agenda in many Western states exponentially increases vulnerability for refugees making gendered claims. The volume includes contributions from scholars and members of the advocacy community that allow the book to examine conceptual and doctrinal themes arising at the intersection of gender and refugee law, and specific case studies across major Western refugee-receiving nations.

Sponsored by the elected hereditary peer Lord Lucas (12th Baron Lucas and 8th Lord Dingwall) The Equality (Titles) Bill was a private member’s bill to:  “make provision for the succession of female heirs to hereditary titles; for husbands and civil partners of those receiving honours to be allowed to use equivalent honorary titles to those available to wives; and for connected purposes”.

The Bill was introduced into the House of Lords on 14 May 2013 and passed Second Reading on 25 October 2013.

As an interested party, The Standing Council of the Baronetage, the official body representing baronets (hereditary "Sirs"), commissioned a formal Opinion from Rafe Heydel-Mankoo.

The Opinion was issued as the Bill entered the Committee stage.

In summary, the Bill dealt with two issues:

1. Female succession to hereditary peerages and baronetcies
2. The conferral of titles on the husbands and same-sex married partners of titled persons.

For many interested parties, the first issue can be subdivided into two similar but separate issues:
1 (a):  Female succession to hereditary peerages and baronetcies to prevent sex discrimination.
1 (b):  Female succession to hereditary peerages and baronetcies to prevent the extinction of peerages and baronetcies due to lack of male heirs.

Rafal Heydel-Mankoo acknowledged that The Equality (Titles) Bill was well-intentioned, and its proponents, undoubtedly inspired by the Succession to the Crown Act 2013 (an Act to change the
law of succession to the British throne from male-preference primogeniture to gender-neutral absolute primogeniture), were clearly motivated by laudable principles of fairness and equality. 

However his conclusion was that an admirable motivation did nothing to alter the fact that The Equality (Titles) Bill was fundamentally unsound and suffered from poor drafting and a failure to comprehend the complexity of the baronetage, the peerage and peerage law.

In 1932 German sexologist Magnus Hirschfeld visited Greece. It was after a long journey that took him round the world, lecturing about the new science he had created. In the Greek capital his unconventional theories concerning an intermediate “third sex” and his ideas about sexual reform became the object of an attack in the local press. Close examination of the debate which followed reveals some interesting points regarding Hirschfeld's approach to publicity and his attempts to foster an emancipation movement for homosexual issues.

“ I am what I am, so take me as I am ! ”
                      The Historical Judgment of the Supreme Court of India that decriminalized Homosexuality in India on September 6, 2018, began with the aforementioned quote of the German thinker, Goethe. The Judgment was made by the constitutional bench of The Supreme Court and each of the five jury bench had made their decisions based on some literary texts (or selected quotes). The Judgment, if called a reservoir of literary and non-literary quotes, will not be an exaggeration. From the four hundred- and ninety-five-pages judgment, one can easily deduct that the judges rightly sought the help from literature to establish that humanity is more important than any law, and anything that violates this must be revoked. This paper makes a study of the literary quotes made use of by the jury bench in the judgment, their source and explanations and how those words influenced or helped them to arrive at a better understanding of humanity and thereby also in giving the judgment.
          Only literature could reveal the process of breaking the law, without which the law would have no end - independently of the necessity to create order. -  Georges Bataille, French Intellectual and Literary Figure

This chapter examines the legal implications of reparative therapy litigation in the United States, which recognized the tight of gay and lesbian children to be spared reparative therapy, even when prescribed by their parents. It argues that, in acknowledging this right, federal courts ultimately defended the right of the children to be gay. Such a recognition has a wider positive e ect on American society in terms of acceptance of homosexuality and the homosexual population by signi cantly restricting the viability of gay conversion in all respects.

Anti-discrimination claims by religious employees have constructed seemingly intractable conflicts. The United Kingdom (UK) courts have resolved these workplace disputes by diluting individual religious liberty, particularly when determining disadvantage and proportionality under indirect discrimination. This article explores an alternative UK anti-discrimination claim route for religious employees, namely an employer duty of reasonable accommodation. A comparative analysis outlines the corresponding Canadian duty. This model is applied to UK employment cases featuring indirect religious discrimination, specifically those claims which formed the recent applications in Eweida and Others v. UK. It is suggested that adoption of the Canadian model be considered: its nuanced approach to proportionality is particularly instructive. Whilst such a UK duty could prove controversial, it would cohere with both normative theory in law and religion and conceptual understanding of anti-discrimination law. Moreover, reasonable accommodation’s individualised focus should be acclaimed; it need not compromise collective notions of religious liberty.