LGBTQ Breaking News Service

This week read Japan’s bill falling short of adding protections to the LGBT community, and Ken Haire winning his pension case after claiming discrimination by CN Rail in Canada.

Widower Settles Pension Case After Claims Of LGBT Discrimination

Since originally being refused rights to his late partner’s CN Rail pension because he was in a same-sex relationship, Ken Haire has won his fight.

According to CBC, Haire received a letter from the railway officially recognizing him as the common-law spouse of Gerry Schwarz, who was an employee there for 30 years. It also included a lump sum for missed payments over the span of nine years plus interest after Schwarz’s death.

Until 1998, same-sex couples were not considered qualified spouses under CN’s pension scheme. Although the move was not retroactive, the firm said it is reviewing how the policy impacts workers who retired before 1998.

“After all those years and all the people he had worked with, they still didn’t acknowledge the fact that Gerry and I were a couple,” Haire told CBC. “We were a couple in every sense of the word. It really did hurt.”

Japan’s LGBT Bill Falls Short

Photo via Adobe.

Japan currently lacks any national regulations shielding LGBT people from discrimination, and a new survey ranks Japan at the bottom of a list of developing country rules on LGBT inclusion.

According to Human Rights Watch, The LGBT Equality Act, a draft statute, is currently undergoing intensive negotiations between Japan’s ruling and opposition parties. The conservative ruling Liberal Democratic Party declared in April that during the current Diet session, which ends in June, it will pass an LGBT law.

However, the bill introduced by the ruling party at the LDP’s Special Mission Committee on Sexual Orientation and Gender Identity merely allows the government to promote awareness of LGBT people. It omits non-discrimination safeguards and falls short of the government’s universal human rights commitments.

Many Japanese LGBT rights organizations are opposed to the draft law, fearing that the weak wording would have little real guarantees. Opposition parties are calling for a bill that prevents them from discrimination.

Stay tuned in to our local news coverage: Listen to 90.7 WMFE on your FM or HD radio, the WMFE mobile app or your smart speaker — say “Alexa, play NPR” and you’ll be connected.

Orange County residents can get a COVID-19 shot and get tested for HIV and other STIs at the LGBT Center in Orlando on Friday. 

Orlando! On Friday from 12pm-6pm Harmony Healthcare will be hosting a #COVID19 vaccine event at the @lgbtcenterorl!

No appointment necessary, J&J shots only — please spread the word and get your shot! 💉 pic.twitter.com/pM8Q9kqFm0

— Rep. Anna V. Eskamani 🔨 (@AnnaForFlorida) May 18, 2021

The Johnson & Johnson vaccine and HIV, Hepatitis C and other STI testing will be available at the LGBT Center on Friday from 12 noon until 6 pm.

Center Director George Wallace says it’s crucial for good health not just to get the vaccine, but also to know your status.

“Orlando ranks in the top five for new HIV infection rates. And we’ve come so far. But there’s still so much more work to do. And HIV is so stigmatizing and it’s so important for people to know their status so that they’re protected and they’re protecting the people that they love.”

Harmony Healthcare Orlando will be distributing vaccines and conducting testing on site. Practice Manager Brett Rigas says the testing is fast and easy.

“It does take about twenty minutes. It is in a confidential setting with a tester and the patient. We do the HIV and the Hepatitis C testing, usually we do those together because they take about the same time to come back. Then we also will conduct the testing for syphilis, gonorrhea, chlamydia as well.”

Anyone getting vaccinated must be at least 18 years of age or older, but testing starts as young as 13 years old.

Honestly, after the *years* of being so ashamed of my body hair, this whole “ick” thing has me smiling. I literally would pluck, shave, do whatever it took to be smooth (and thus acceptable by the Pretty Gays) when I came out. Now? I’m a fucking gorilla and proud of it. 🦍✨💗

02:55 PM – 18 May 2021

Honestly, after the *years* of being so ashamed of my body hair, this whole “ick” thing has me smiling. I literally would pluck, shave, do whatever it took to be smooth (and thus acceptable by the Pretty Gays) when I came out. Now? I’m a fucking gorilla and proud of it. 🦍✨💗

02:55 PM – 18 May 2021

18 May 2021 by Anurag Deb

Introduction

In Northern Ireland, the Troubles are not the only part of its troubled past and present. In March this year, the Stormont administration found itself mired in controversy over women’s reproductive rights and access to abortion services. In April, a fresh controversy arose: a legislative ban on so-called “gay conversion therapy”. On 18 March 2021, Ulster Unionist Party MLAs Doug Beattie and John Stewart tabled a private member’s motion in the Northern Ireland Assembly calling for a legislative ban on the practice. The motion was debated on 20 April, with one amendment ringfencing religious activities from the proposed ban, taking centre-stage.

To characterise the debate which followed as polarising would be to put it mildly. The Assembly Hansard for 20 April records angry, frustrated exchanges between MLAs who called for safeguarding the LGBTQ community from harmful practices (condemned by the UN Human Rights Council as creating “a significant risk of torture”) and MLAs who called for safeguarding the free exercise of religion.

In the event, the DUP amendment failed and the UUP motion was passed unamended by 59 votes to 24, providing Communities Minister Deirdre Hargey MLA with a strong mandate to bring legislation to ban conversion therapy in Northern Ireland. However, that was not the end of the matter. In the immediate aftermath of the Assembly vote, the DUP signalled its intent to block legislation unless “robust protections for churches” were included. Eight days after the vote, the Northern Ireland First Minister and DUP leader Arlene Foster MLA faced significant rebellion in the party against her leadership and announced her intention to resign both the leadership of the DUP and the First Ministership. The extent to which the motion to ban conversion therapy played a part in the rebellion against Foster remains a matter for debate, especially given concerns about the impact of the DUP’s political stance on the very recently enacted access to abortion and same-sex marriage in Northern Ireland.

Almost a month later, Mr Justice Scoffield in the Northern Ireland High Court handed down judgment in JR111’s application for judicial review [2021] NIQB 48, declaring the language of “disorder” in the Gender Recognition Act 2004 (GRA) to be in breach of the ECHR.

As many around the world celebrated the International Day against Homophobia, Biphobia and Transphobia on 17 May, the events of the past month were a reminder of how different the story of LGBT equality was in Northern Ireland, compared to Great Britain.

Decriminalising sodomy

Until 1967, the sections 60 and 61 of the Offences Against the Person Act 1861 and section 11 of the the Criminal Law Amendment Act 1885 criminalised buggery, attempted buggery, assault with intent to commit buggery, indecent assault, gross indecency between men and the procuration and attempted procuration of indecent assault between men. Punishments always involved imprisonment, ranging from maximum terms of two years to ten years for the less “abominable” offences. Buggery, specifically described as “the abominable crime” in the 1861 Act, invited a term of imprisonment between ten years and life. This regime was more-or-less uniform across both England and Wales and Northern Ireland (devolution in the UK not having existed before 1921).

In 1967, following the Wolfenden Report’s recommendations, the Sexual Offences Act 1967 decriminalised sodomy between two men in private, aged 21 years or above, in England and Wales only. Sodomy was decriminalised in Scotland in similar terms by the Criminal Justice (Scotland) Act 1980. Although Northern Ireland had gained devolution in 1921 (including in criminal law), the then Stormont administration had not followed the England and Wales law reform and had in any event been abolished in 1973 after the start of the Troubles. As a result, responsibility over all of Northern Ireland’s governance had returned to Westminster and Whitehall. However, despite the UK Parliament considering draft legislation in 1978 to decriminalise sodomy in Northern Ireland, the result of a public consultation around this proposal proved too politically controversial to be realised.

Sodomy would not be decriminalised until after the landmark ruling of the European Court of Human Rights in Dudgeon v United Kingdom (1982) 4 EHRR 149, in which the Court decided that the breadth and absoluteness of the sodomy laws unjustifiably and disproportionately interfered with the right to private and family life under Article 8 of the European Convention on Human Rights (ECHR). Dudgeon would be invoked in 1988 to make a similar ruling in Norris v Ireland (1988) 13 EHRR 186 that the same sodomy laws in force in the Republic of Ireland were also in breach of ECHR rights.

Adoption rights

Before the Civil Partnership Act 2004 introduced a form of legal recognition for same-sex couples in the UK, the Adoption and Children Act 2002 allowed same-sex couples (and unmarried opposite-sex couples) to adopt children. However, its reforms did not extend to Northern Ireland (which had regained devolved government by then). Instead, adoption law in Northern Ireland continued to discriminate against unmarried opposite-sex couples and same-sex couples (whether or not civil-partnered). While the former found relief at the hands of the House of Lords in Re P [2009] 1 AC 173, same-sex couples in Northern Ireland would have to wait their turn until 2012.

Sitting in the Northern Ireland High Court, Mr Justice Treacy (as he then was) declared in The Northern Ireland Human Rights Commission’s application [2012] NIQB 77: “All individuals and couples, regardless of marriage status or sexual orientation are eligible to be considered as an adoptive parent(s)”. The central point in that judgment, affirmed on appeal, was the unjustifiable difference in treatment between same-sex couples who were completely excluded from being eligible to adopt (whether or not in a civil partnership) and opposite-sex couples, who could either adopt if married or adopt individually if unmarried.

Blood donation

In 2011, the UK Advisory Committee on the Safety of Blood, Tissues and Organs (SaBTO) recommended that men who have sex with men (MSM) be allowed to donate blood after a 12-month period since their last sexual contact. This was a significant change to the previous policy, in place since 1985, of a permanent ban for MSM in donating blood. The SaBTO recommendation was followed in Great Britain, but not in Northern Ireland.

The decision not to follow the SaBTO recommendation was made by then Northern Ireland Health Minister Edwin Poots MLA (currently the Agriculture, Environment and Rural affairs Minister) and found to be irrational by Treacy J in JR65’s application for judicial review [2013] NIQB 101. This was because, while the Minister had been entitled to maintain the permanent ban as a matter of public health concern, he could not also accept supplies coming from Great Britain which had been drawn following the 12-month deferral (which in fact he had). Treacy J’s findings were overturned in the Court of Appeal, where only the Lord Chief Justice would have allowed JR65’s cross-appeal about the permanent ban being disproportionate under EU law (especially the non-discrimination provisions under Article 21(1) of the Fundamental Rights Charter). Lord Justice Gillen and Lord Justice Weir were of the view that the Health Minister, who by then had changed, should be given a chance to make a new decision on the basis of the current prevailing circumstances and knowledge (following the CJEU decision in Léger v Ministre des Affaires sociales, de la Santé et des Droits des femmes (C-528/13)). Barely three months after the Court of Appeal’s judgment, the new Health Minister, Michelle O’Neill MLA (currently the deputy First Minister) announced an end to the permanent ban, moving to align with the 12-month deferral policy in Great Britain.

Same-sex marriage

Jubilation followed the legislation of same-sex marriage for Northern Ireland at Westminster, on an amendment moved by Conor McGinn MP to a government bill designed to keep the lights on in Northern Ireland while Stormont remained empty.

However, as with every other issue in the history of LGBT rights in Northern Ireland, the courts were not far from this debate. Two cases in particular sought to litigate the prohibition on same-sex marriage in Northern Ireland: Petitioner X, which concerned the recognition in Northern Ireland of a marriage between two men lawfully carried out in England, and Close and Others’ application for judicial review, which attacked the prohibition head on. In the High Court, both Petitioner X and Close and Others failed, while in the Court of Appeal, both succeeded to some degree. The central holding in both X and Close, that the lack of legislative extension of marital rights to same-sex couples did not breach the ECHR rights of LGBT individuals, was overturned on appeal. The basis for this was that, by the time X and Close were heard in the High Court, marriage equality legislation had been enacted in Westminster, Holyrood and Dublin and moreover had strong support in the Assembly (despite the Assembly’s support being defeated through the oft-criticised ‘petition of concern’ mechanism unique to Northern Ireland). Nevertheless, by the time the Court of Appeal handed down its judgments in X and Close, Westminster had legislated same-sex marriage for Northern Ireland, and so there was no point in making declarations as to the breach of ECHR rights.

Gender recognition

We now return to the start of this post – the judgment of Scoffield J in JR111. The Court’s conclusion to a lengthy and detailed judgment is in two parts: the first part (paras 131 – 139) outlines that, as a matter of discretion left to national authorities under the ECHR, the UK Parliament was and remains entitled to decide (via the GRA) that a medical element to gender recognition and transition be retained. The second part of the conclusion (paras 140 – 148) discusses the specific diagnosis that the GRA requires – gender dysphoria – and concludes that characterising it as a disorder is a breach of the right to private and family life under Article 8 of the ECHR. This is on the basis that “applicants for a [gender recognition certificate] face a quandary: in order to assert their legal rights to gender recognition, they must denigrate that aspect of their identity [gender] which the 2004 Act is in principle designed to vindicate”. This is all the more important given that the UK Government publicly states (as a result of the GRA reform consultation) that a transgender person does not and has never had a disorder. Moreover, the decision not to go down the route of legislative reform means that the Westminster Parliament has not had an opportunity to consider updating a statute that is 17 years old – in which time the medical understanding of gender has evolved considerably and the language of “disorder” has been rejected.

While the final relief in JR111 remains outstanding (the Court has directed further submissions on whether the language relating to gender dysphoria in the GRA can be “read down” or a declaration of incompatibility be made), it is important to outline the net effect of the judgment. The need for medical opinion as part of the gender recognition process remains, but the statute may not denigrate transgender people by characterising their experience as a disorder. This may well be a purely symbolic step, but as Schoffield J observed, “Words can and do matter in this context.”

Comment

Having had the doors to Stormont’s imposing Parliament Buildings shut on it time and time again, the long movement towards LGBT equality and dignity in Northern Ireland has turned, again and again, to the equally imposing but considerably warmer Royal Courts of Justice. The revolution in ECHR litigation brought about by the Human Rights Act 1998 (HRA) has played a large part in this movement. However, it is perhaps worth highlighting a growing revolution within this revolution and what this means for the future.

In nearly all of the judgments referenced here, the courts in Northern Ireland have stayed faithful to something known variously as the “mirror principle” or the “Ullah principle” (see Rosalind English’s post on this issue). When deciding matters on ECHR rights, our courts look to the Court of Human Rights at Strasbourg and generally keep up with it, going no further. In JR111, however, Schoffield J went into great detail about how, in any given field where a degree of latitude (“margin of appreciation”) is granted to individual countries under the ECHR, it is for a domestic court to decide ECHR compatibility as a matter of domestic law “with relatively unconstraining guidance from the Strasbourg Court”. This draws on Supreme Court judgments such as Nicklinson and DSD, in which the late Lord Kerr JSC provided a ringing endorsement of the idea that there has been a “retreat” from the need to only keep pace with Strasbourg. This is of course, not to say that the mirror principle has been consigned to history, but that there is a growing judicial acceptance of a simple fact: the rights contained in the HRA, despite deriving from international law, are domestic. Thus, when Strasbourg is silent, it is up to courts in the UK to decide for themselves what a right means, how it applies and whether it has been breached.

The domestication of ECHR rights greatly parallels the trajectory of LGBT rights in Northern Ireland: what started in Strasbourg in the 1980s has continued, 40 years later, in Belfast.

Many people know that New York’s legendary Gay Pride Parade was launched in response to the violent 1969 police raid of a Greenwich Village gay bar called the Stonewall Inn. Less well-known is that a key organizer of that initial defiant and celebratory march was a cop.

Not at the time, mind you. Fred Sargeant was then the 20-year-old manager of his partner Craig Rodwell’s Oscar Wilde Bookshop in the Village when he walked by the Stonewall melee, after which he and hundreds of others rioted in the streets for days against the heavy-handedness of the NYPD. But having helped midwife a new era of gay liberation, Sargeant soon decamped to Stamford, Connecticut, and decided to change policing culture from within.

“I wanted to see if I could make a difference, and having seen the situation at Stonewall and how the NYPD handled that, I thought I could do it differently,” Sargeant later told PBS. “Stonewall wasn’t the only riot I saw. I’d been caught up in riots in the Village before and watched what the police did.” Sargeant would rise to the rank of lieutenant before retiring.

That gradual commingling and grudging tolerance between activist and officer is now beginning to unravel. Late last week, bending to pressure that had intensified after the May 2020 police killing of George Floyd, organizers of 2021 Pride announced a five-year ban on parade participation by uniformed police and corrections officers.

“The sense of safety that law enforcement is meant to provide can instead be threatening, and at times dangerous, to those in our community who are most often targeted with excessive force and/or without reason,” NYC Pride organizers said in a statement.

“The community really called us out as an organization,” Pride Co-Chair André Thomas explained to The New York Times. “Because they felt that we weren’t necessarily living up to our mission, our higher ideals and standards.”

Those ideals apparently now include collective guilt and racial paranoia:

[T]he changes are meant to address concerns voiced by some transgender, Black and Latino people who say they felt unsafe marching in front of a police force that routinely targeted and victimized them. […]

“The issue is, how do we make Pride safe for the people who feel the most marginalized and have often been left out of the conversations about how Pride is run?” said Beverly Tillery, the executive director of the New York City Anti-Violence Project, an L.G.B.T.Q. rights group. […]

“As the police presence at Pride has grown over the years, the members of our community who are most marginalized, who are most harmed by police, have felt like Pride is not a safe place for them.”

There are several situations in which interacting with a heavy police presence could make members of a historically marginalized community feel tangibly—as opposed to rhetorically—unsafe: a massage parlor raid, a housing-project sweep, an immigration crackdown. It’s hard to imagine an event lower on that hierarchy of danger than a televised Gay Pride parade in the sunny streets of Manhattan featuring a phalanx of ebullient gay cops.

For decades, uniformed members of New York’s Gay Officers Action League (GOAL) were barred from participating in Pride—not by parade organizers, but by the NYPD, including long after the event had become a bipartisan civic celebration featuring the likes of Rudy Giuliani. Only in 1996, after filing a federal discrimination lawsuit, were the cops allowed by their own department to march in full dress.

In a press release Friday, GOAL said it was “disheartened” by what it called a “shameful” decision to “placate” activists, adding: “GOAL and our members have had our hands in every police reform and policy revision touching on the LGBTQIA+ community in New York City.”

Like all other parades in parade-happy New York, Pride will continue to have a police presence; just on the outside, one block away, and not as exhibitors. “The idea of officers being excluded is disheartening and runs counter to our shared values of inclusion and tolerance,” NYPD spokeswoman Sgt. Jessica McRorie told the Times. “That said, we’ll still be there to ensure traffic safety and good order during this huge, complex event.”

Some police critics and criminal justice reformers, including many I respect, will no doubt cheer this news, seeing it as a continuation of the recently accelerated push to disentangle police from unnecessary and potentially fraught interactions with the citizenry. But using an anti-discrimination event to discriminate against cops has its potential downsides, too.

If you demonize all cops as irredeemable, radioactive sources of potential violence and oppression, this may serve to discourage from police service precisely the types of people—those from historically marginalized communities themselves, and sensitive to the related policy concerns—who reform advocates have long been agitating for departments to hire.

Recruitment right now is not some academic issue: Cops in New York and elsewhere are retiring at rates not seen in years. The types of rookies willing to withstand the refrain that All Cops Are Bastards may not be as friendly to black transgender Pride marchers as the officer who literally sued their way into the parade.

There is a radical reaction to this complaint that’s popular among some progressives and libertarians, amounting to: So what? People shouldn’t become cops (or soldiers, or tax collectors, or immigration agents, or abortionists, or public school teachers, or practitioners of any fill-in-the-blank profession deemed by the beholder to be furthering evil). If fewer good people are attracted to fundamentally corrupt jobs, that’s a net gain for virtue, the argument goes.

Maybe. But also, on the planet we currently live on, there are not many countries where those professions do not exist. Often, jobs involving the use of deadly force are among the most respected in a society, and the most likely to be increased during times of real or perceived crisis. Until we achieve Anarchotopia, there are going to be cops, and (in the case of New York and many other polities where crime is on the dramatic rise) lots of them.

There are many strategies for diffusing tensions between law enforcement and the communities they serve, and many concrete ideas about bringing true reform to an overly violent and carceral criminal justice system (read Reason‘s October 2020 cover package, titled “Fix the Police,” for a primer). One of the biggest eye-openers for me since moving to New York is how many of those reform conversations are taking place on the badge side of the debate—police chiefs against “Stop, Question, and Frisk,” district attorneys who launch false conviction review units, vice cops who complain about the Drug War.

To treat those people as interchangeable cogs of a malevolent machine is not only inaccurate and nihilistic, it discourages reformers and encourages brutes. All at a time when rising violent crime threatens to undermine the public case for criminal justice reform.

Unpredictable things happen when people collide, rather than segregate. In that first parade in 1970, Fred Sargeant later recalled in the Village Voice, marchers had no idea whether the NYPD would just start cracking skulls. “There were no floats, no music, no boys in briefs,” he wrote. “The cops turned their backs on us to convey their disdain, but the masses of people kept carrying signs and banners, chanting and waving to surprised onlookers.” It was the beginning of a beautiful thing.

“I’ve marched in several other parades and have worked and watched countless others over the years, but the cheers and adulation shown to cops marching in pride by far & hands down is always the greatest and loudest out of them all,” Officer Anthony Nuccio wrote in an emotional Twitter thread Sunday. “The decision to ban gay cops from marching is absolutely disheartening and hypocritical. It does nothing but create an even deeper divide in our already divided city & community…. I will always be proud of the work GOAL has accomplished & how it has pushed & will continue to push from within the police department for positive changes. I’m proud to be a member of GOAL, I’m a proud gay man & I am equally proud to serve as a police officer.”

A man convicted of consensual gay sex in the 1990s will not have to register as a sex offender in Montana in a seismic federal court ruling.

In 1993 when he was just 18, Randall Menges had consensual sex with two teenage boys at an Idaho camp.

He spent seven years behind bars for violating the state’s “crimes against nature” law, according to federal court documents, before being placed on Idaho’s sex offender registry.

Nearly three decades since, and as much as the sodomy charge has since been dubbed unconstitutional by the Supreme Court, Menges was forced to remain on the registry in both Idaho and then Montana, where he has since moved to.

Across both states, Menges’ status haunted him. He was swiftly rejected from jobs, lost friends and even had suicidal ideations – his life capturing the grievances some advocates feel about the registries for how they shove people into the margins.

But last Tuesday (12 May), he cried tears of joy after a federal judge ruled that Menges’s name should be stripped from Montana’s sex offender registry.

“None of the governmental interests in maintaining a sexual offender registry are served by Menges’ inclusion,” wrote US district judge Dana Christensen in his decision, according to the New York Post.

The statute, he said, caused Randall Menges “significant” hardships, and his name being kept on the registry is not in both the public or police’s interests.

“Under Montana’s constitutional scheme, having consensual intimate sexual contact with a person of the same sex does not render someone a public safety threat to the community,” he wrote.

“Law enforcement has no valid interest in keeping track of such persons’ whereabouts.”

It’s a vital victory after a years-long legal battle waged by Randall Menges, who sought to use Montana Attorney General over the state’s requirement he still be listed as a sex offender. The Montana Attorney General’s Office pushed back against his plea.

“I guess I’m just grateful, honestly, that the judge actually listened and was fair because for the last few years of my life,” Menges told reporters of the ruling, “I don’t feel like anything’s been fair.”

His lawyer, Elizabeth Ehert, said the ruling would enable Randall Menges to at long last rebuild a life dented by the decades-old and outdated charge. His life, she said, “has been utterly destroyed by the homophobic laws that made gay sex illegal”.

But for a victory long-fought came a swift backlash. Montana’s Republican attorney general Austin Knudsen has vowed to appeal the verdict.

His office told The New York Times that Christensen’s ruling “weakens our state’s sex-offender registry law, making kids and families less safe”.

“Montana law is clear,” they said, “if you are required to register as a sex offender in another state, you must also register here.”