Category Archives: LGBTI rights

ECtHR: States Must Recognize Equal Eligibility, Vulnerability of LGBT Migrants

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European Court of Human Rights
Credit: Adrian Grycuk

The European Court of Human Rights (ECtHR) found violations of the rights to non-discrimination and liberty in two recent cases involving applicants who identify as homosexual. In Taddeucci and McCall v. Italy, the ECtHR held Italy’s rejection of a family-based residence permit for an Italian man’s same-sex partner amounted to discrimination on the basis of sexual orientation because while same-sex partners were not similarly situated to opposite-sex couples, they were treated the same as opposite-sex partners, resulting in a denial of rights. See ECtHR, Taddeucci and McCall v. Italy, no. 51362/09, Judgment of 30 June 2016 (French). In O.M. v. Hungary, the Court held that the State should have taken into account an asylum seeker’s vulnerability as a gay man as part of an individualized assessment required by domestic law before keeping him in detention, and should have done its best not to expose him to the same risks from which he was fleeing. See ECtHR, O.M. v. Hungary, no. 9912/15, Judgment of 5 July 2016. Both cases contribute to the growing body of case law that protects the rights and safety of persons who identify as homosexual or in a same-sex relationship. The O.M. case is apparently the first ECtHR decision to discuss the safety of an asylum seeker in detention who claims membership in a vulnerable group based on his sexual orientation, and Taddeucci and McCall joins the ECtHR’s growing jurisprudence on non-discrimination in the context of same-sex couples. Read more

Human Rights Bodies Address Homophobia, Gun Violence after Orlando Attack

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Vigil for Orlando victims outside Stonewall Inn in New York City
Credit: Elisa S

The United Nations Office of the High Commissioner for Human Rights (OHCHR), UN Security Council, and Inter-American Commission on Human Rights (IACHR) have urged States to address homophobia, gun violence, and terrorism in the wake of the recent nightclub shooting in Orlando, Florida. [OHCHR Press Release; UN Press Release; IACHR Press Release] Early Sunday morning on June 12, 2016 Omar Mateen entered Pulse, a gay nightclub in Orlando, and began shooting at the estimated 200 club-goers present for the “Hispanic party” hosted by the club that night. [CNN; IACHR Press Release] Mateen, who claimed allegiance to ISIS during the rampage, killed 49 people and wounded 53 more before being killed by police. [CNN] The Inter-American Commission and the OHCHR made recommendations to the United States to put in place measures to ensure non-discrimination and the elimination of violent attacks against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons and called for more robust gun regulation in response to the shooter’s use of quick-reload weapons that he purchased legally. [USA Today; OHCHR Press Release; IACHR Press Release]

The recommendations were made in view of human rights bodies’ determination that sexual orientation and gender identity are included in non-discrimination provisions of human rights treaties, and the OHCHR’s recent conclusion that without adequate regulation, civilian gun use has a negative impact on the realization of many human rights. See Committee on Economic, Social and Cultural Rights, General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/20, 10 June 2009, para. 32; UN High Commissioner for Human Rights, Human rights and the regulation of civil acquisition, possession and use of firearms, UN Doc. A/HRC/32/21, 15 April 2016. In related news, the European Court of Human Rights has again concluded that its Member States are not required to ensure marriage equality, or equal access to partner benefits, for same-sex couples. Read more

Inter-American Court: Colombian Same-Sex Partners Entitled to Equal Social Benefits

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The Inter-American Court of Human Rights in session
Credit: Inter-American Court of Human Rights

The Inter-American Court of Human Rights has condemned Columbia’s failure to provide a gay man with equal access to public benefits following the death of his partner, as prohibited discrimination on the basis of sexual orientation. See I/A Court H.R., Duque v. Colombia. Preliminary Objections, Merits, Reparations and Costs. Judgment of 26 February 2016. Series C No. 310 (Spanish only). This case involved a petitioner, Ángel Alberto Duque, who alleged that he was denied the right to a survivor’s pension due to his sexual orientation. [IACHR Press Release] The Inter-American Commission on Human Rights (IACHR) submitted the case to the Court’s jurisdiction on October 14, 2014 after Colombia failed to comply with its merits report recommendations. [IACHR Press Release] The Court held that Colombia had violated the petitioner’s right to equality and non-discrimination as provided for in the American Convention on Human Rights (American Convention). See Duque v. Colombia. Judgment of 26 February 2016. para. 62. Duque’s case is the first time the Court has ruled on the issues of discrimination and access to social rights as they pertain to same-sex couples. [IACHR Press Release] Read more

ECtHR: Same-Sex Couples Must Be Equally Eligible for Family-Based Migration

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Rainbow painted on the sidewalk in Zagreb with phrase “love thy neighbor”
Credit: Crol.hr via Wikimedia Commons

In a recent decision regarding family reunification for a same-sex couple, the European Court of Human Rights (ECtHR) found Croatia to have violated a non-citizen’s human rights by denying her application for a residence permit to join her partner in Croatia. See ECtHR, Pajić v. Croatia, no. 68453/13, Judgment of 23 February 2016. The ECtHR unanimously held that Croatia’s Aliens Act, under which same-sex couples do not qualify for residency permits based on family reunification, violated Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights. Id. at paras. 69-86. Ms. Pajić submitted a complaint to the ECtHR in October 2013, alleging discrimination on the basis of her sexual orientation. Id. at paras. 1, 3.

While the Court has previously considered cases involving discrimination on the basis of sexual orientation in the area of family rights, this is apparently the first time the Court has reviewed a State’s treatment of same-sex couples’ eligibility for family-based migration. See id. at paras. 53-60. See also Oliari and Others v. Italy, nos. 18766/11 and 36030/11, Judgment of 21 July 2015 (legal recognition of same-sex relationships); ECtHR, E.B. v. France [GC], no. 43546/02, Judgment of 22 January 2008 (adoption rights of person in same-sex relationship). A complaint against Italy that also involves same-sex couples’ eligibility for family reunification is currently pending before the Court. See ECtHR, Taddeucci and McCall v. Italy (communicated case), no. 51362/09.  Read more

IACHR Welcomes Mexico’s Steps to Remedy Discriminatory Discharge of Soldiers with HIV

Inter-American Commission on Human RightsCredit: OAS

Inter-American Commission on Human Rights
Credit: OAS

The Inter-American Commission on Human Rights (IACHR) recently released its decision in a case concerning discriminatory treatment of two Mexican soldiers with HIV, after concluding that Mexico had complied with all its recommendations for remedying the violations. See IACHR, Report No. 80/15, Case 12.689, J.S.C.H and M.G.S. (Mexico), 28 October 2015. The complaint, brought on behalf of two former members of the National Defense Secretariat, alleged that Mexico violated the American Convention on Human Rights (American Convention) by requiring the victims to retire from their positions without benefits, pay, or pension based on their HIV status. The petitioners further alleged that they were denied the right to fair trial in the process of appealing the forced retirement. The Commission found Mexico in violation of its obligation to give domestic legal effects to the rights to non-discrimination, a hearing within a reasonable time before an impartial tribunal, privacy, and equal protection of the law without discrimination. It found no violation of Article 5.1 (humane treatment) of the American Convention, holding that Mexico’s dismissal of the victims and their subsequent lack of pay and benefits did not constitute inhumane treatment. See id. The decision was announced shortly after World AIDS Day, which was observed on December. [IACHR Press Release]

In its merits report, the Commission recommended that Mexico provide the victims with any comprehensive health services needed; make complete reparations to the victims, including financial, moral, and, if desired by the victims, reinstatement in the Armed Forces; and to bring the Mexican Armed Forces Social Security Law (MAFSS Law), which governs the conditions under which a person can be retired from service, into compliance with the non-discrimination, privacy, and equal protection provisions of the American Convention. See IACHR, J.S.C.H. and M.G.S. (Mexico), 28 October 2015. Following the IACHR’s confidential release of the decision to the State and petitioners, the parties executed an agreement on reparations that recognized the victims’ desire to be reinstated in the army, required a ceremonial acceptance of responsibility, ensured amendment and evaluation of the legislation to guarantee non-repetition, and required implementation of training in the armed services on non-discrimination against persons with HIV/AIDS. Id. at paras. 141-47.

The IACHR determined that Mexico “fully complied with the recommendations set forth in Merits Report 139/11, as well as with the additional components of the agreement entered into by the parties.” It found that no additional evaluation would be necessary. Id at para. 168.

The decision elaborates on the international jurisprudence requiring that any difference in treatment based on HIV status be reasonable, as well as suitable and strictly proportional to pursuing a legitimate purpose. See id. at para. 99 et seq. This is apparently the first time that the IACHR has published a detailed discussion of its analysis on this issue. , For example, a previous decision found that the treatment of a hospital patient with HIV, wherein he was provided with a drinking glass marked “XXX” that no other patient used, was “utterly unreasonable and demeaning,” but the IACHR did not explain the relevant standard or analysis. See IACHR, Report No. 27/09, Case 12,249, Jorge Odir Miranda Cortez, et al. (El Salvador), 20 March 2009, para. 74. Read more

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