This panel was convened at 9:00 a.m., Thursday, March 31, 2016, by its moderator Andrew Park of the University of California, Los Angeles School of Law, who introduced the panelists: Melanie Bejzyk of the University of Oxford; Fanny Gomez-Lugo of the Inter-American Commission on Human Rights; and Mark E. Wojcik of The John Marshall Law School. *
SEXUAL ORIENTATION AND GENDER IDENTITY UNDER INTERNATIONAL LAW
By Mark E. Wojcik ([dagger])
INTERNATIONAL DEVELOPMENTS FOR LGBTI PERSONS
Protections for Sexual Orientation, Gender Identity, and Gender Expression Under National Constitutions "Sexual orientation" is expressly protected under nine national constitutions: Bolivia; Ecuador; Fiji; Kosovo; Malta; Mexico; Portugal; South Africa; and Sweden. Sexual orientation is also protected under the Human Rights Act of New Zealand, the Northern Ireland Act of 1988, as amended, and the Scotland Act of 1988, as amended. "Gender identity" is protected as an additional category under the constitutions of Bolivia, Ecuador, and Malta.
The Constitution of Fiji protects not only sexual orientation and gender identity, but also "gender expression." And although it was by statute rather than under a national constitution, Australia and Malta became the first countries to protect intersex persons.
As of 2016, same-sex marriage is legal in twenty countries: Argentina; Belgium; Brazil; Canada; Colombia; Denmark (and its former province, Greenland, which is now an autonomous Danish dependent territory); France (and its Caribbean Department, Martinique); Iceland; Ireland; Luxembourg; Mexico (by court decisions and writs of amparo that require recognition of same-sex marriages from other Mexican states, even in Mexican states that do not yet authorize same-sex marriage by legislation); the Netherlands (and its Caribbean municipality, Saba); New Zealand; Norway; Portugal; South Africa; Spain; Sweden; the United States; and Uruguay. Same-sex marriage also became legal in England, Wales, and Scotland in 2014, bringing to twenty-three the number of nations that recognize same-sex marriage (if England, Wales, and Scotland are counted as countries; if they are not, then the number of countries remains at twenty because the United Kingdom cannot be counted until Northern Ireland allows same-sex marriage). Finland will recognize same-sex marriage as of March 1, 2017.
Same-sex marriage became legal for the entire United States on June 26, 2015, when the U.S. Supreme Court ruled in Obergefell v. Hodges that "the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment [to the U.S. Constitution,] couples of the same-sex may not be deprived of that right and that liberty." The Supreme Court held that "same-sex couples may exercise the fundamental right to marry," and that "there is no lawful basis for a State [of the United States] to refuse to recognize a lawful same-sex marriage performed in another State [or foreign country] on the ground of its same-sex character."
Same-sex marriage became legal in Ireland on November 16, 2015, after Ireland became the first nation in the world to legalize same-sex marriage by a popular vote in May 2015. (Switzerland had earlier voted as a nation to recognize same-sex civil unions, but these fall short of marriage.)
Not all nations recognize same-sex marriage. Slovenia passed a law to recognize same-sex marriage, but voters repealed it before it could enter into effect. And despite advances elsewhere, some countries have constitutions that define marriage as a union solely between a man and a woman. Constitutions defining marriage as a union of a man and a woman include the constitutions of Belarus, Bulgaria, Burundi, Hungary, Latvia, Lithuania, Moldova, Montenegro, Mozambique, Nicaragua, Panama, Poland, Rwanda, Serbia, the Seychelles, Slovakia, Somalia, South Sudan, Tajikistan, Uganda, Ukraine, and Vietnam. The constitutions of Peru and Venezuela also provide for common law marriage only between a man and a woman.
But despite setbacks and obstacles, the march of same-sex marriage continues around the world. And many jurisdictions that do not yet recognize same-sex marriage nonetheless provide for civil unions or similar relationships such as registered partnerships, domestic partnerships, reciprocal beneficiary relationships, civil solidarity pacts, and similar relationships. Chile and Greece, for example, each adopted civil union and civil partnership laws in 2015.
Some civil union creations falling short of marriage may be open to both same-sex and opposite-sex couples, although some jurisdictions (such as the United Kingdom) limit civil unions to same-sex couples. Jurisdictions that recently recognized same-sex marriage may now effectively offer same-sex couples the choice of entering into a civil union or lawful marriage.
Countries that do not protect same-sex couples may see political and legal challenges that would require those countries to recognize same-sex relationships. In July 2015, the European Court of Human Rights (ECHR) ruled in favor of three same-sex couples who had been denied the right to marry in Italy or to enter into any type of civil union or domestic partnership. The ECHR found in Olieri v. Italy that the Italian government failed to fulfill its "positive obligation to ensure" that same-sex couples in Italy "have available a specific legal framework providing for the recognition and protection of their same-sex unions." Italy's failure to protect same-sex couples violated Article 8 of the European Convention on Human Rights. Italy was divided as to how it will comply with the court's ruling that it provide legal protection to same-sex couples, but in 2016 (after the ASIL Annual Meeting) it adopted a civil union law that falls short of full marriage equality.
Statutes that continue to criminalize sexual acts between consenting adults violate rights to...