Archive for gay rights

A Glimpse of Hope from the U.S. Supreme Court: Bostock v. Clayton County

Guest Contributor Rosa Celorio is an Associate Dean for International and Comparative Legal Studies and Burnett Family Professorial Lecturer in International and Comparative Law and Policy, Rcelorio@law.gwu.edu, https://www.law.gwu.edu/rosa-celorio. (Full Bio at end of  article).

On June 15, 2020, the United States Supreme Court released its historic decision in the case of Bostock v. Clayton County, ruling that employers are prohibited from discriminating against any individual on the basis of their sexual orientation or gender identity in the employment setting. The case relates to three employees who claimed they were fired after revealing they were homosexual and transgender. The Court firmly ruled that Title VII of the Civil Rights Act of 1964 and its prohibition of sex discrimination applies to gay and transgender persons. 

This decision is momentous and noteworthy for the respect and guarantee of human rights in the United States for several reasons.  First, it continues the trend of the Supreme Court in protecting the rights of persons historically discriminated against due to their sexual orientation and gender identity. The decision in Bostock is an important addition to the line of cases already adopted by the Supreme Court in Obergefell v. Hodges, guaranteeing the right to marriage equality, and Lawrence v. Texas, declaring the unconstitutionality of laws which prohibit private intimate activity between homosexual persons. The Court also offers an expansive interpretation of the prohibition of discrimination on the basis of sex under the landmark Civil Rights Act, thereby offering federal judicial protection to millions of LGBTI people who are employed in the United States.  The majority affirmatively concludes that it is unconstitutional for sexual orientation and gender identity to be considered as factors in employment decisions.    

Second, it is remarkable how the Supreme Court continues identifying and protecting human rights, even when they are not explicitly included in the Constitution or federal laws. In Obergefell v. Hodges, the Supreme Court emphasized its role in identifying and protecting human rights under the Constitution, even when these are not reflected in existing legislation. This statement clearly created significant discussion and disagreements between the justices, leading to dissenting opinions in Obergefell emphasizing that the creation of rights solely belongs to the political and democratic process. The debate over the appropriate reach of the Supreme Court in identifying new rights is also very latent in Bostock, as reflected in the dissenting opinions of Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh.  The Supreme Court decision in Bostock illustrates how the check and balances system in the United States and the role of the courts can be paramount in protecting the rights of marginalized populations, especially in the area of non-discrimination.

Thirdly, the United States is currently a very divided and broken country. Much of the present polarization is related to a deep-seeded history of discrimination and inequality, which has led to protests and claims for much needed reform of current laws, policies, and institutions. It is very noteworthy that this decision was authored by Justice Neil Gorsuch, who is considered a conservative.  Judge Gorsuch applies a textualist approach to the interpretation of the Civil Rights Act, concluding that the plain text of this statute leads to the conclusion that discrimination on the basis of sex also protects homosexual and transgender persons. Chief Justice Roberts – who is also considered a conservative jurist – joined the majority.  In a moment of deep concerns in the United States over discrimination, it is extraordinary to see Justices applying conservative legal interpretation to advance the rights of millions of persons. 

Lastly, the Bostock decision is in line with numerous judgments adopted by international courts offering a flexible interpretation to the prohibition of discrimination in international and regional treaties.  For example, both the European Court of Human Rights and the Inter-American Court of Human Rights have ruled on cases establishing that sexual orientation and gender identity are considered prohibited factors under the European and American Conventions on Human Rights, even though these treaties do not explicitly mention these motives in its discrimination provisions.  As the author has indicated in her previous scholarship, an open interpretation of the non-discrimination clauses in domestic laws is a key gain for legal standards related to discrimination, and for sectors and communities particularly exposed to human rights violations. It will be very interesting to see the impact that Bostock will undoubtedly have on the crafting of new federal and state legislation in the United States protecting the rights of LGBTI persons in the employment and other settings. 

The Supreme Court ruling in Bostock v. Clayton County is groundbreaking and an important step forward in the protection of the rights of the LGBTI community in the United States. United States courts can potentially be the guardians of important human rights protections, the guarantee of non-discrimination, and access to justice.  

The US Supreme Court offered us in Bostock a glimpse of hope when most needed. 

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Author Bio:

Rosa Celorio currently works as Associate Dean for International and Comparative Legal Studies and Burnett Family Professorial Lecturer in International and Comparative Law and Policy
at the George Washington University Law School in Washington, DC. She also teaches courses related to the US legal system, regional protection of human rights, and the rights of women, and publishes scholarship in these areas.  Previously, she worked for more than a decade as Senior Attorney for the Inter-American Commission on Human Rights (IACHR), one of the main organs of the regional human rights protection system for the Americas. In this capacity, she held various leadership positions, including the supervision of all the legal work performed by the specialized Rapporteurships on women, LGBTI persons, indigenous peoples, racial discrimination, children, and older persons, among others. She has also acted as an advisor and consultant for several United Nations agencies. She is originally from Puerto Rico.

For more information, see: https://www.law.gwu.edu/rosa-celorio

 

Fait Accompli: Singapore Again Upholds Section 377A Criminalising Homosexuality

Co-authored by guest contributors Paras Ahuja and Rahul Garg. 

Paras Ahuja is an undergraduate student pursuing law at the National Law University, Jodhpur. Her research interests include human rights, constitutional law and feminism. 

Rahul Garg is an undergraduate student pursuing law at the National Law University, Jodhpur. His research interests include gender studies, human rights and international humanitarian law.

On 30th March, 2020, the Supreme Court of the Republic of Singapore in Ong Ming Johnson v. Attorney-General upheld the constitutional validity of Section 377A of the Singapore Penal Code, 1871. Section 377A punishes any male person who commits an act of “gross indecency” with another male person, whether in public or in private. The judgement marks itself as a regressive touchpoint in Singapore’s progression towards inclusiveness and equality. 

Article 14(1) (a) of the Constitution of Singapore guarantees every citizen the right to freedom of speech and expression. The petitioners in this case contended that Section 377A derogated this right by failing to recognize one’s sexual orientation to be a part of the term “expression” within Article 14. While interpreting the term “expression,” the court applied the rule of “ejusdem-generis”. The rule postulates that wherever there is an enumeration of a list of specific things followed by a generic term, the genus term (here, “expression”) should be interpreted in context of the specie term(s) (here, “speech”) and not in its widest possible construction. The court, upon application of this rule, observed that “expression” is therefore restricted only to verbal “speech” and excludes sexual identity of a person. It, therefore, held that the right to freedom of expression is encompassed within the right to freedom of speech, reducing the term “and expression” to redundancy and surplusage. 

We argue that that is an erroneous application of ejusdem-generis. It is settled law that ejusdem-generis should not be applied in a way that makes the usage of the genus term redundant in a provision. This is a fundamental principle of statutory interpretation pointed out in case laws citing Sutherland. The Singaporean court’s interpretation, on the other hand, renders the term “expression” otiose and goes against the principle that legislature doesn’t use words in vain. 

Additionally, the court relied on the marginal note of Article 14 [i.e. “Freedom of speech”, assembly and association] to ascertain the scope of the provision in order to buttress its holding that “expression” is subsumed within “speech”, since the marginal note mentioned only “speech”. This reliance conflicts with the Singapore Supreme Court’s former observation in the case of Ezion Holdings Ltd v Teras Cargo Transport Pte Ltd, where marginal notes were held to be non-exhaustive and imprecise and therefore, not determinative enough of the true contents of a provision. 

The court, furthermore, conveniently maneuvered its way to protect Section 377A from the violation of right to life and personal liberty, enshrined under Article 9(1) of the Constitution. In refusing to include the protection of “homosexual-identity” within the scope of personal liberty, the court aligns its reasoning by saying that the right to personal liberty was not an absolute one, but was qualified. It stated that “unenumerated rights were not capable of specific protection.” However, this seems particularly faulty, as “personal liberty” by itself is an abstract right; it is a collection of rights involving several aspects of a person’s life and doesn’t guarantee any specific individual right singularly. In this context, the exclusion of “unenumerated rights” from the scope of personal liberty will leave it hollow and subject to arbitrary discretion as to its scope. 

In its reasoning, the court also observed that Section 377A does not criminalise a male homosexual for his “homosexual orientation”, but only for the actus reus consisting of performance of a homosexual activity with another man. The court additionally stated that a heterosexual man would be equally liable if he were to commit a homosexual act. This distinction between criminalising the “state of homosexuality” and the conduct, that is, the “homosexual act” is farcical and theoretical. This distinction fails as it renders the manifestation of the sexual identity impractical by punishing the conduct. Identifying the flaw in such an argument, the US Supreme Court in the case of Lawrence v. Texas noted that when the act that is criminalised is so closely correlated with the “state-of-being-homosexual”, it resultantly has the effect of defining the very identity as criminal. 

The court, in its subtlety, eschewed from answering the question of whether or not the sexual orientation of a person is an immutable factor. The question of immutability was deemed central by the court since the granting of the right to life and personal liberty in this case was considered to be contingent on the recognition of sexual orientation as immutable. However, frustrated with overwhelming scientific evidence from both sides in this regard, the court eventually declared this question outside the realm of legal discussion, belonging rather to the area of scientific controversy. We argue that there is no relevance of a conclusive determination on the aspect of immutability to the question of recognition of the fundamental rights. Either way, there is vacuity in the reasoning of the court as to why a chosen sexual orientation should not be entitled to the same constitutional protection in as much as an immutable sexual orientation would be, along the “born-with-it”/“it-is-my-choice” spectrum. Therefore, regardless of homosexuality falling anywhere between this immutability/choice spectrum, the larger human rights violation relates to the resultant stigma associated with criminalization. The judgment ultimately legitimises an assumed sense of normalcy which according to the court, is only heterosexuality. At the same time, it portrays homosexuality as an anomaly not protected by fundamental rights. 

The judgement, therefore, observes a false understanding of various provisions and judicial tools of interpretation, seemingly to achieve a predestined holding. The bench microcosmically imposes its own ideas of heteronormativity on the Singaporean society, which is not only upsetting, but also mistaken.