The 2017 Act amends and extends the law in relation to the adoption of children and made conforming amendments to other legislation. Among other things, the Act, in conjunction with the Children and Family Relationships Act 2015 (available here), enables adoption by same-sex couples. The Act, in particular, amends use of heterosexual phrases in legislation, introducing more neutral terminology for words such as “parent” and “relative” (Section 3).
Women and Justice: Keywords
Legislation
Gender Recognition Act 2015 (2015)
The Act provides for recognition of changes of gender, issuance of gender recognition certificates, and conforming amendments to other legislation, including the Adoption Act 2010. Any person of at least 18 years of age who is not married or in a civil partnership, inter alia (Section 9), may apply to the Minister for Social Protection for a gender recognition certificate (Section 8). Where a gender recognition certificate is issued to a person, that person’s gender shall from the date of that issue become for all purposes the ‘preferred’ gender and sex (Section 18). The fact that a gender recognition certificate is issued to a person shall not affect the status of the person as the father or mother of a child born prior to the certificate’s date of the issue (Section 19), or the disposal or devolution of property under a will (including a codicil), or other instrument executed before the date the Act came into operation (Section 20). The Act also provides for “gender specific [criminal] offenses” in relation to the treatment of people with gender recognition certificates. Notably, where a relevant gender-specific sexual offence could be committed or attempted only if the gender of the person with a gender recognition certificate were not the ‘preferred’ gender, that fact does not prevent the sexual offence being committed or attempted (Section 23). Finally, a person who has a gender recognition certificate may apply to the Minister for Social Protection to revoke the certificate (Section 15).
Marriage Act (2015)
The 2015 Marriage Act enacted the Thirty-Fourth Amendment of the Constitution of Ireland into law, which legalized same-sex marriage. Previously, same-sex couples could enter into civil partnerships under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The Marriage Act amended the Civil Registration Act 2004, inter alia, by adding a provision that allows anything that applies to marriage between two people of the opposite sex to apply to marriage between people of the same sex (Section 5). The Act also provides that nothing therein obliges a religious body to recognize a particular form of marriage ceremony or to solemnize a marriage (Section 7). It also provides for the recognition of certain foreign marriages and registered foreign relationships (Sections 12 and 13) and amends the Guardianship of Infants Act 1964 to allow a married couple of the same sex to adopt a child (Section 16).
Article 402 prohibits the interpretation or application of any norm in a manner that limits, restricts, excludes, or suppresses the equality of rights and obligations of the parties to a marriage, whether such marriage is consummated between two people of different sexes or the same sex.
El artículo 402 prohíbe la interpretación o aplicación de cualquier norma de manera que limite, restrinja, excluya o suprima la igualdad de derechos y obligaciones de las partes contrayentes, ya sea que dicho matrimonio se consuma entre dos personas de diferente sexo o del mismo sexo.
On May 14, 2013, the National Justice Council issued a resolution stating that competent authorities are not allowed to refuse (a) to celebrate same-sex civil marriages nor (b) to convert same-sex common-law marriages (stable union) into civil marriages. The National Justice Council is a public administrative body that aims to advance the work of the Brazilian judicial system. The resolution was issued after the Supreme Court declared in 2011 that it is unconstitutional to apply a different legal treatment to same-sex common-law marriages (stable union), from the one applied to heterosexual common-law marriages (stable union).
Em maio de 2013, o Conselho Nacional de Justiça (CNJ), que é o órgão da administração pública que visa aperfeiçoar o trabalho do sistema judiciário brasileiro, emitiu resolução estabelecendo que as autoridades competentes não poderiam se recursar a habilitar e celebrar casamento civil entre pessoas do mesmo sexo ou se recusar a converter a união estável entre pessoas do mesmo sexo em casamento civil. Referida resolução foi emitida após o Supremo Tribunal Federal – STF declarar, em 2011, que é inconstitucional a aplicação de tratamento jurídico distinto aos casamentos e união estável entre pessoas do mesmo sexo.
Domestic Case Law
Zappone and Gilligan v. Revenue Commissioners High Court of Ireland (2006)
The plaintiffs, two Irish women in a same-sex relationship, married in Canada and sought recognition of their marriage in Ireland or alternatively the right to marry in Ireland. The Registrar General had declined to make a declaration on the validity of marriages that occur outside the State, stating that this was a matter for the courts under Section 29 of the Family Law Act 1995 (2019 version available here). The respondent Revenue Commissioners rejected the plaintiffs’ claim to their allowances as a married couple under the Taxes Consolidation Acts, stating that “Revenues interpretation of tax law is that the provisions relating to married couples relate only to a husband and a wife.” The plaintiffs sought judicial review of that decision. The Court found that the right to same-sex marriage did not exist under Irish Constitution or the European Convention on Human Rights, and consequently the plaintiffs’ claims for recognition of their Canadian marriage and their challenge to the Tax Code must fail. Article 41.3.1 of the Irish Constitution required the State to guard the institution of marriage with special care. The continued relevance of this decision is affected by subsequent changes to Irish law. The Thirty-Fourth Amendment to the Irish Constitution legalized same-sex marriage which is now regulated in law by the Marriage Act 2015.
Dėl leidimo laikinai gyventi Lietuvoje užsieniečiui šeimos susijungimo pagrindu Nr. 16/2016 (On the Law “Legal Situation of Foreigners” Compliance with the Constitution) Konstitucinis Teismas (Constitutional Court) (2018)
A Belarusian citizen and a Lithuanian registered their same-sex marriage in Denmark. In the same year, the Belarusian citizen applied for a Residency Permit on grounds of Family Reunification in Lithuania. However, it was denied by the Migration Department because neither same-sex marriage nor same-sex partnership is legal in Lithuania. The District Court affirmed the Migration Department’s decision; however, upon appeal, the Supreme Administrative Court decided to refer the case to the Constitutional Court. The Constitutional Court reiterated their 2011 decision that a family is formed on the basis of “continuous emotional affection, mutual understanding, responsibility, respect, co-parenting, and the like” rather than solely by the institution of marriage. Therefore, the Court concluded that the State must not discriminate based on gender and/or sexual orientation in granting Residence Permits to foreign nationals reuniting with their spouses in Lithuania (see case No. 21/2008). English translation available here.
Danijoje tos pačios lyties asmenų santuoką įregistravo Baltarusijos pilietis ir lietuvis. Tais pačiais metais šis sutuoktinis iš Baltarusijos kreipėsi dėl leidimo gyventi Lietuvos Respublikoje šeimos susijungimo pagrindu. Tačiau, Migracijos departamentas prašymą atmetė, nes Lietuvoje nėra įteisintos nei tos pačios lyties asmenų santuoka, nei tos pačios lyties asmenų partnerystė. Apygardos teismas patvirtino Migracijos departamento sprendimą, tačiau Vyriausiasis administracinis teismas nusprendė perduoti bylą Konstituciniam Teismui, kuris pakartojo savo 2011 metų sprendimą, kad šeima kuriama remiantis „nuolatine emocine meile, tarpusavio supratimu, atsakomybe, pagarba, bendru auklėjimu ir panašiais dalykais“, o ne vien santuokos institucija. Todėl Teismas padarė išvadą, kad valstybė negali diskriminuoti dėl lyties ir (ar) seksualinės orientacijos, atsisakydama suteikti leidimą gyventi Lietuvoje užsienio piliečiams, kurie siekia šeimos susijungimo su savo sutuoktiniais.
R v. Soko and Another Chief Resident Magistrate's Court (2010)
The two accused persons were charged and convicted of having carnal knowledge against the order of nature –contrary to Section 153(a) of the Penal Code, which is understood to prohibit same-sex sexual relations. In the alternative, the two accused persons were charged with indecent practices between men contrary to Section 156 of the Penal Code. Both of the accused persons pleaded not guilty but were convicted of both charges and sentenced to the maximum penalty of 14 years of imprisonment including hard labor. The two accused persons had conducted a traditional engagement ceremony, or chinkhoswe. They held themselves out to be husband and wife, and the second accused person identified as a woman but the court consistently referred to her as a man. The court found that both accused committed the crimes charged. In sentencing the two accused persons to the maximum punishment available, the court cited their perceived lack of remorse and their attempt to “seek heroism […] in public, and […] corrupting the mind of a whole nation with a chinkhoswe ceremony.” The court explicitly described the sentences of 14 years imprisonment with hard labor as deterrents so that the public could be “protected from others who may be tempted to emulate their [horrendous] example.” In closing, the court stated, “let posterity judge this judgment.” According to multiple news sources (e.g., the BBC), the President of Malawi pardoned both accused persons and they were subsequently released from prison with a warning not to resume their relationship.
Lesbian and Gay Equality Project and Eighteen Others v. Minister of Home Affairs Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2006)
The issue in this case was whether the fact that no provision was made for same-sex couples to marry denied those parties equal protection of the law and was thus unfairly discriminating against them because of their sexual orientation, contrary to the Constitution’s protection of sexual orientation. The common law and the Marriage Act 25 of 1961 defined marriage as between man and woman. The Court stated that the exclusion of same sex couples from the benefits and responsibilities of marriage was not a “tangential inconvenience” but a “harsh … statement by the law that same-sex couples are outsiders.” The Court held that the common law and §30(1) of the Marriage Act were inconsistent with §§ 9(1) & (3) of the Constitution to the extent that they did not allow same sex couples to enjoy the status, entitlements, and responsibilities that heterosexual couples enjoyed. The Court held that Parliament should remedy this exclusion and, if it does not, courts should read §30(1) of the Marriage Act to include the words “or spouse” after the words “or husband” as they appear marriage vows.