The Equal Rights Review

Promoting equality as a fundamental human right and a basic principle of social justice

In this issue: ■ Special: Equal Rights to Family Life

■ Marriage equality in Indonesia and Ireland ■ Testimony from an intersex person ■ Equality legislation in Bosnia and Herzegovina ■ Domestic servitude in Singapore ■ Equality jurisprudence in the Caribbean

The Equal Rights Review Volume Ten (2013) Ten Volume Review Rights The Equal Biannual publication of The Equal Rights Trust Volume Ten (2013)

Contents

5 Editorial Equal Rights to Marry and Found a Family Articles

11 Arif Bulkan The Poverty of Equality Jurisprudence in the Commonwealth Caribbean

33 Libby Clarke Behind Closed Doors: Trafficking into Domestic Servitude in Singapore

59 Adnan Kadribašić Developing Equality Legislation in Divided Societies: the Case of Bosnia and Herzegovina Special

83 Jens M. Scherpe The Legal Recognition of Same-Sex Couples in Europe and the Role of the European Court of Human Rights

97 Saskia E. Wieringa Marriage Equality in Indonesia? Unruly Bodies, Subversive Partners and Legal Implications

111 Katherine Zappone In Pursuit of Marriage Equality in Ireland: A Narrative and Theoretical Reflection

123 Ariel Dulitzky Case Note: Indirect Discrimination, Reproductive Rights and Hannah Zimmermann and the In Vitro Fertilisation Ban

Testimony

133 Equal Rights for Intersex People: Testimony of an Intersex Person

Interview

143 Developing Law and Policy: Progressing towards Equal Rights to Family Life. ERT talks with Ian Curry-Sumner and Stephen Gilbert Activities

151 The Equal Rights Trust Advocacy

159 Update on Current ERT Projects

184 ERT Work Itinerary: July – December 2012 4

The Equal Rights Review is published biannually by The Equal Rights Trust. The opinions expressed in authored materials are not necessarily those of The Equal Rights Trust.

Editor: Dimitrina Petrova Assistant Editor: Joanna Whiteman Advisory Editorial Board: Sandra Fredman, Colin Gonsalves, Bob Hepple, Claire L’Heureux-Dubé, Christopher McCrudden, Bob Niven, Kate O’Regan, Michael Rubenstein, David Ruebain, Sylvia Tamale

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The Equal Rights Review, Vol. Ten (2013) 5 Editorial

Equal Rights to Marry and Found a Family

International human rights law can be said suit, accordingly. If anything, with the new to be very family-friendly. A basic assump- reproductive technologies, types of adoption underlying the entitlement to protection tion, and the evolving forms of marriage, it of the family by the state is that “the family is almost certain that, in the not too distant is the natural and fundamental group unit of future, the “family” will come in even more society” – a phrase found in Articles 16 of the shapes and sizes than the rich variety of his- Universal Declaration of Human Rights, 23.1 toric units under that name. of the International Covenant on Civil and Political Rights and 10.1 of the International Fundamental rights related to marriage Covenant on Economic, Social and Cultural and the family in international human Rights. A slightly expanded wording is found rights law include: in the 1989 UN Convention on the Rights of the Child, whose Preamble refers to “the fam- (i) The protection from interference with ily, as the fundamental group of society and one’s family, analogous to and mentioned to- the natural environment for the growth and gether with, the protection from interference well-being of all its members and particu- with one’s privacy, home or correspondence larly children”. – the right to be free from “arbitrary interference” with one’s family (Article 12 UDHR); But the family appears to be not just a “unit”, from “arbitrary or unlawful interference” be it natural or otherwise. International hu- with one’s family (Article 17 ICCPR); or the man rights law instruments that make up “right to respect for his (…) family life” (Ar- ticle 8 ECHR). sentences of their preambles, refer to “the humanthe international family”, meaning bill of all rights, of humankind in the first as (ii) The right to marry and found a family one “family”, presumably as opposed to oth- (Article 16.1 UDHR, Article 23.2 ICCPR, and er species. Therefore, apparently, no human Article 12 ECHR, among others). person can ever be absolutely orphaned – or is the “human family” here just a metaphor? (iii) Certain other rights construed with reference to the family – including the protec- So, the question is, unsurprisingly, what is the tion of the family “by society and the state” family? How does it relate to marriage and (Article 16.3 UDHR, Article 23.1 ICCPR, Arti- what type of marriage, if any, has to be recog- cle 10.1 ICESCR, etc.). nised as the basis of the family? The notion of the family has changed over time in most The rights to equality related to marriage contemporary cultures, and this change is far and the family have been interpreted to com- from over. Family laws have been following prise, inter alia:

The Equal Rights Review, Vol. Ten (2013) 6

(i) Equality between spouses, i.e. equal tions to “opt in” to conducting same sex mar- rights of spouses “as to marriage, during riage. The Equal Rights Trust participated marriage and at its dissolution” (Article 16. in the consultation process, welcoming the 1 UDHR, Article 23.4 ICCPR, as well as the Bill but pointing out elements of remaining detailed provisions of Article 16 of the Con- sexual orientation discrimination in it. In its vention on the Elimination of All Forms of legal opinion, ERT took issue with the way in Discrimination against Women, which is which the Bill seeks to balance non-discrimi- honoured in the breech in many countries nation against lesbian, gay and bisexual per- that have made reservations on this article in sons with religious freedom. In the unique favour of sharia law or custom). situation of the UK, religious organisations conduct marriages that are recognised and (ii) Non-discrimination in relation to the regulated by the state – in contrast to the right to marry and found a family – the equal secular approach of countries like the Neth- rights of each person “of full age” (Article erlands, where religious marriages have no 16.1 UDHR, Article 23.2 ICCPR, Article 12 legal value and, as Ian Curry-Sumner points ECHR), having a protected characteristic, out in this issue, it is a criminal offence to such as race, nationality or religion, to marry conduct a religious marriage before a civil and found a family, on an equal basis with marriage has taken place. Most British peo- persons who do not have that characteristic. ple marry in an Anglican or a Catholic church and this is the only marriage ceremony that It is this second aspect of family rights equal- takes place for them; no separate civil cer- ity, protected by common Article 2 of ICCPR emony is necessary. In our brief to the Par- and ICESCR and Article 26 ICCPR, as well as liamentary Committee on the Bill, we argued regional treaties, which is the focus of this is- that when religious organisations conduct sue of The Equal Eights Review. The materials marriages which are recognised and regu- published in these pages tackle some of the lated by the state they perform a public func- key aspects of equality in respect to enter- tion and that international human rights law ing a marriage and founding a family without and the UK Equality Act 2010 require such discrimination. One of the big issues of our functions to be carried out in a non-discrim- time, same sex marriage, is the central topic inatory manner. While religious organisa- of two of the articles in the Special section as tions should be free to conduct religious cer- well as the double Interview. Same sex mar- emonies in accordance with their beliefs and riage recognised by law realises the right to tenets, when stepping in to act in lieu of the equality of each person in the enjoyment and state in a public function – conducting state- exercise of the right to marry and found a recognised marriages – churches should not family, without discrimination on the ground be permitted to discriminate against people of sexual orientation. on the protected ground of their sexual orientation. However, the UK government has At present, many countries around the world pre-empted any debate on this issue by mak- are considering the adoption of same sex ing a very strong promise to the established marriage laws, including the United King- church and other religious organisations dom. The Marriage (Same Sex Couples) Bill that they will never be required to conduct 2013 opens up access to the institution of same sex marriages, and that their exemp- marriage to same sex couples through civil tion from the equal treatment principle will ceremonies and allows religious organisa- be set in stone.

The Equal Rights Review, Vol. Ten (2013) 7

In addition, ERT highlighted that the Bill at Austin, where Professor Dulitzky is based, contains further problematic distinctions intervened in this case before the Inter- between same sex and opposite sex couples, American Court of Human Rights. by preserving concepts such as adultery and consummation as solely heterosexual, indi- We argued that Costa Rica had violated the rights to equality and non-discrimination It is of course not because we are worried recognised under Articles 1(1) and 24 of the aboutcating adulterya lower value and consummationfor homosexual asfidelity. such American Convention on Human Rights. The – and frankly, we would prefer to see these Inter-American Court found violations of Ar- obsolete institutes evaporate from the law based, disability and other discrimination put of social control. But as long as adultery forwardticle 1(1), in our reflecting joint brief. arguments This case on concerned gender- andaltogether consummation and be confined remain in to the the law, museum they the decision of the Constitutional Chamber of should be used in a way that would not allow the Supreme Court of Costa Rica that a presi- a differentiation on grounds of sexual orien- dential decree authorising and regulating in tation. On the other hand, the Bill, by making vitro fertilisation (IVF) for married couples no amendments to the Civil Partnership Act was unconstitutional, primarily on grounds 2004 open only to same sex couples, in effect that the practice violated the right to life of discriminates against opposite sex couples embryos as a result of the “high embryo loss in that it denies them access to civil partner- rate”. The applicants were married couples ships. Thus, full marriage equality, regard- who were unable to conceive naturally but less of sexual orientation, will not yet be who were either prevented from accessing achieved in the UK when this Bill is adopted, IVF due to the declaration of the Constitu- and we will continue to point at other coun- tional Chamber, or whose IVF treatment was tries, such as South Africa, for best practices interrupted by it. Some chose to travel abroad where there is maximum choice of options to access IVF in other countries. The Court and no sexual orientation discrimination re- concluded that the absolute prohibition on lated to marriage. IVF violated a number of rights contained in the Convention, in particular the right to pro- Marriage and family inequalities based on tection of physical integrity (Article 5(1)), to gender identity or intersex (assuming that personal liberty (Article 7), to respect for pri- the former does not cover the latter) are ex- vate and family life (Article 11(2)) and to raise plored in Wieringa’s article about Indonesia a family (Article 17(2)). in the Special section, and in the Testimony The Court also examined whether the pro- Gina Wilson, an Australian intersex advo- hibition contravened Article 1(1), which cate;section while where Ariel we Dulitzky’s publish the commentary reflections onof prohibits discrimination in the exercise of the case Artavia Murillo y Otros (Fecundación the rights contained within the Convention. in vitro) v Costa Rica presents the reasoning The Court held that the prohibition on IVF of the Inter-American Court of Human Rights violated Article 1(1) in the enjoyment of the on the issue of non-discrimination, and right to respect for one’s private and family equality in realising the wish (the emerging life and the right to raise a family on three right?) of raising biological children – both protected grounds: disability, gender and aspects of the right to found a family. In Oc- tober 2012, ERT and the University of Texas of “infertility” provided by the World Health economic status. Reviewing the definition

The Equal Rights Review, Vol. Ten (2013) 8

- already started to undergo IVF, women were ity” in the Convention on the Rights of Per- disproportionately affected as they had re- Organisationsons with Disabilities, and the definitionthe Court ofconcluded “disabil ceived hormone stimulation for ovulation inthat infertility was “a functional limitation duction. Finally, in relation to economic sta- recognised as a disease”. It found that the tus, the Court held that the prohibition of IVF prohibition on IVF created barriers for per- had a disproportionate impact on poorer in- sons with this particular disability in the enjoyment of the rights contained within the means to undergo IVF in another country. CRPD, including the right to access the neces- fertile couples who did not have the financial sary techniques to solve reproductive health This issue provides only a narrow glimpse problems. In relation to gender, the Court into the vast area of equality rights related to held that the prohibition on IVF dispropor- marriage and family life. Many further issues tionately affected women, as infertile men had to be left untouched – polygamy, adoption, non-traditional parenting patterns and insemination) while for infertile women IVF a host of other matters around the family. But maymight be have the onlyother option options for (suchraising as biological artificial we are committed to continuing the discus- children. Further, for those couples who had sion in the future.

Dimitrina Petrova

The Equal Rights Review, Vol. Ten (2013) 9 ARTICLES

“Despite the potential offered by constitutional bills of rights across the Caribbean, the excessive restraint that characterises judicial treatment of their equality-related provisions has resulted not just in an underdeveloped jurisprudence, but in one that is often backward-looking.”

Arif Bulkan

The Equal Rights Review, Vol. Ten (2013) 10

The Equal Rights Review, Vol. Ten (2013) 11

The Poverty of Equality Jurisprudence in the Commonwealth Caribbean

Arif Bulkan1

1. Introduction

A recent exchange at a United Nations’ Hu- - man Rights Day event involving a US Su- tection under the fourteenth amendment preme Court judge makes it clear just how towhich the couldUS constitution. justifiably beYet denied Scalia equalexpressed pro surprise that his intrepid interrogator was applying equality principles are. The setting not persuaded. wasuniversal a lecture the helddifficulties at Princeton in interpreting University and on 10 December 2012. At one point, a freshman The one value of this fruitless exchange is that asked Justice Antonin Scalia whether he had - any regret for the “extraordinarily offensive” mative principle. Since identical treatment comparisons he made in his dissents in two ofit typifies all persons the complexity is neither offeasible equality in aspractice a nor landmark gay rights cases,2 where Scalia lik- nor even necessary in theory, the challenge it ened homosexuality to murder and bestiality. poses as a justiciable right is identifying the The characteristically pugnacious judge ex- circumstances or reasons for which it would pressed no remorse or shame. He explained: be legitimate to create distinctions among “I don’t apologize for the things I raised. I’m people in order to treat them differently. This not comparing homosexuality to murder. may sound simple enough as articulated, but I’m comparing the principle that a society it imposes a prerequisite that has long con- may not adopt moral sanctions, moral views, founded both theorists and practitioners. against certain conduct. I’m comparing that Judges sometimes purport to resolve the with respect to murder and that with respect tensions by seeking a balance between the to homosexuality.”3 rights of the individual and the interests of society, but what that sanguine exercise con- These opaque protestations notwithstand- ceals is that neither concept is self-evident ing, Scalia’s reasoning in both cases was or objectively discoverable.4 At best, what eminently about making comparisons – or it does is to re-frame the debate whilst still more particularly, identifying categories or leaving undetermined what counts as en- classes of people whom it would be permis- forceable “rights” and overriding “interests”. sible to treat differently and (to use Scalia’s word) with animus. Whether or not he chose These challenges have proved to be par- to acknowledge it, the effect of his approach ticularly acute for countries of the Com- was to compare homosexual acts with mur- monwealth Caribbean. Given the region’s der and bestiality as examples of conduct bloody origins and colonialism’s legacy of

The Equal Rights Review, Vol. Ten (2013) 12

factious racial and social cleavages, one doms. It then goes on to espouse the commit- might have expected to encounter a robust ment that “there should be opportunity for body of equality law and practice. But aside advancement on the basis of recognition of from perfunctory acknowledgement of the merit, ability and integrity”. These or simi- past in the preambles to some constitutions, lar aspirations are echoed in the preambles the documents themselves are surprisingly of all of the other constitutions, with some reticent on the subject of equality, which has even expressing respect for equality in more been matched in turn by a crippling judicial direct and forceful language. The “newer” conservatism in the interpretation and en- constitutions of Belize and Guyana are the forcement of equality claims. best examples of this directness, with robust declarations in their preambles that speak to “equal and inalienable rights”, the “elimina- in greater detail. I commence in section two tion of economic and social privilege”, and withIn this a discussion article I examine of the theseactual deficienciestext of the policies which ensure gender equality. constitutions so as to identify exactly what is guaranteed under the law. In the three sec- It is when one turns to the substantive, en- tions following I explore the judicial treat- acting provisions, however, that the dearth of references to equality is most noticeable.6 All sex discrimination in relation to women, sex- - ualment minorities of specific and aspects gender of thenon-conformists, right, namely stitutions contain no general right to equal- as well as on the interpretation of the more ity,but andone guaranteeof the five earliest instead independence protection against con general equality right where this appears either in addition to or instead of the more The “newer” models tentatively changed common non-discrimination guarantee. This discrimination on certain specified grounds. discussion reveals that despite the potential the term “equality” to their preambles. Like offered by constitutional bills of rights across thethis, “older” but even model these of confined constitutions, any mention what was of the region, the excessive restraint that char- actually guaranteed in the bills of rights was acterises judicial treatment of their equality- simply protection against discrimination on related provisions has resulted not just in an - underdeveloped jurisprudence, but in one ritories, it was initially only in the unconven- that is often backward-looking. tionalcertain Trinidad specified and grounds. Tobago Thus bill ofof rightsall the thatter a general guarantee of equality was included 2. The Protected Characteristics within the substantive provisions – this being the right of the individual to equality be- Almost all the constitutions of countries fore the law and “equality of treatment from making up the Commonwealth Caribbean5 any public authority”.7 Since then, however, commence with some introductory commit- more general guarantees of equality have ment to the principle of equality, even if only been included in the constitutions of Belize,8 by implication. The preamble to the Consti- Guyana9 and Jamaica.10 tution of Antigua and Barbuda, for example, this feature is that in the majority of Carib- captures this ideal through its acknowledge- bean constitutions, equal The treatment significance is only of ment of respect for “the dignity and worth guaranteed in the negative (as in protection of the human person” and the entitlement of from discrimination) and then only on very “all persons” to fundamental rights and free- restricted bases. This was an inadequate way

The Equal Rights Review, Vol. Ten (2013) 13

of legislating for equality, and is a key reason in the reformed Guyana Constitution, which for the impoverished jurisprudence which in addition to listing a staggering eighteen has resulted. prohibited grounds of discrimination, also includes a general equality right.13 The text Compounding the problem of the restric- of Caribbean anti-discrimination provisions tive approach of negative protection against is therefore, on the whole, marked by strict discrimination is that the actual grounds on economy, which has obvious negative impli- which distinctions are prohibited are very cations for the scope of equality protection limited. The “older” model of Bills of Rights in the region. origin, political opinions, colour or creed”. This textual circumspection is aggravated by Conspicuouslyspecified only absent five, namely from that “race, list place is any of how the right has been interpreted. Judges mention of categories such as sex, gender, consistently hold that any anti-discrimina- social class, age, religion or disability, each tion analysis must be conducted by reference of which (save for social class) embodies im- to one of the grounds listed within the text,14 mutable personal characteristics or at least and that the list itself is a closed one. The attributes which are deeply embedded in a person’s psyche and which cannot be easily it would be nonsensical to require identical changed. More importantly, several of the ig- treatmentfirst aspect of of all this persons position irrespective is defensible, of diffor- nored attributes have proved to be grounds ferentiating circumstances, but the problem on which different treatment frequently oc- is with the second part, namely that the list curs, and given the potential for abuse they are standard categories in the equality or an- provision must be interpreted as a closed ti-discrimination provisions of constitutions of grounds specified in anti-discrimination in other parts of the world for which unjusti- Nielsen v Barker, where the Guyana Court of 11 Because of Appealone. This rejected stance a wassex firmlydiscrimination articulated claim in this, the omission of these grounds from the on the basis that sex was not one of the fiedbills differentiationof rights of the isearly forbidden. Caribbean constitu- grounds listed in the anti-discrimination section. Describing article 149(2) as prescribing 15 Massiah Thistions legislative is difficult caution to explain was or moderated rationalise. slight - JA rationalised that: ly in the post-1973 constitutions, all of which “tight, definitive compartments”, included “sex” as a prohibited ground of dis- “[A] judge does not possess, in the crimination. However, that addition simply area of constitutional adjudication with brought the list of protected characteristics reference to the protection of fundamental to six. The Antigua and Barbuda Constitution rights and freedoms, the wide, ambulatory mentions one additional ground, namely and ecumenical powers that he otherwise birth out of wedlock, while the recently en- enjoys (…) A person’s fundamental rights acted Charter of Fundamental Rights and and freedoms are set out in [articles 138 to Freedoms in the Jamaican Constitution adds 151], and there can, of course, be no proper two – social class and, pointedly eschewing judicial expansion of those constitutional any reference to sex or gender, that of “be- provisions to embrace other rights not spe- ing male or female”.12 The only exception to this trend is to be found in the bill of rights not super-legislatures permitted to sub- cifically contained therein, for courts are

The Equal Rights Review, Vol. Ten (2013) 14

stitute their own judgment for that of the suitability to decide issues of social policy. In elected representatives of the people.”16 Lord Hoffman’s words:

This result (and reasoning) was followed “The reasons for treating people uni- by the Privy Council in Matadeen v Pointu,17 formly often involve (…) questions of social and although this was an appeal from the policy on which views may differ. These are Supreme Court of Mauritius, the decision is questions which the elected representatives binding on all those countries of the Com- of the people have some claim to decide for monwealth Caribbean where the constitu- themselves.”19 tional provisions are similar and for whom The problem with this interpretation is that court. Under consideration in Matadeen was it ignores the reality that the methodology of the Privydecision Council of the remains Ministry the of final Education appellate to the common law is one whereby judges have no choice but to engage in policy-making. languages at the primary education examina- In 1991 when the House of Lords decided tion.introduce The respondents a fifth, optional alleged paper that in since Oriental the that a man could be convicted of the rape or decision was taken only eight months before attempted rape of his wife where she with- the examination was to be held, it was dis- drew her consent to sexual intercourse,20 criminatory because it gave students already this represented the judicial reversal of studying Oriental languages an unfair advan- a rule that had existed for more than two tage. The Privy Council disagreed, holding centuries and was a seminal shift in sexual that since the inequality of treatment com- inequality. In so doing, the House of Lords plained of fell outside of the grounds enu- relied on nothing but considerations of so- merated in the non-discrimination section cial policy, pointing to the changed status of of the Constitution, no constitutional breach marriage in modern times (as a partnership was established. of equals) and the requirement of a “live system of law” to have regard to contemporary Writing for the Board, Lord Hoffman rea- social conditions.21 To take a Caribbean ex- soned that there was no general principle of ample, the Privy Council over the period of equality in the Mauritius Constitution, and a decade succeeded in dismantling the man- treating the “protection of the law” clause in datory death penalty across the entire Com- the opening section as such would render the monwealth Caribbean, despite its populist anti-discrimination section with its carefully appeal and the reluctance of domestic par- 18 Further, liamentary majorities to initiate legislative while Lord Hoffman agreed that equality of reform.22 It was therefore somewhat disin- enumeratedtreatment is groundsa general superfluous. principle of rational genuous of the Board to pretend that parlia- behaviour, this did not mean it should neces- ment has a monopoly on deciding questions sarily be a justiciable one. In his view, it was of social policy, when they themselves fre- perfectly acceptable to take the approach quently indulge in such matters. whereby a limited number of grounds are Aside from its historical inaccuracy, Lord while the possibility of any addition is left to Hoffman’s approach is also problematic be- Parliament.specified in The the anti-discriminationreason for this lay in section, what cause it concedes too much to parliamen- he perceived as the judiciary’s inherent un- tary majorities, particularly in local settings

The Equal Rights Review, Vol. Ten (2013) 15

23 and lack a cul- ity. For example, while the “older” constitu- ture of robust members of parliament voting tions omitted “sex” from the list of prohibit- independentlywhich are fiercely of thepartisan party line. Moreover, ed grounds in the actual non-discrimination leaving decisions of social policy entirely to section, those very constitutions repudiated the popular vote ignores the fact that class sex discrimination elsewhere – such as in distinctions frequently affect members of the opening section to the bills of rights.27 minority groups, whom majorities may be Elsewhere, it has been acknowledged that less inclined to protect. By contrast, a far the grounds themselves are not necessar- more principled approach to this dilemma ily rigid, which means that excluded groups was articulated by the Chief Justice of Zim- have sought (and succeeded) in being char- babwe, who asserted in Banana v The State – acterised under existing categories.28 In this albeit dissenting – that the “courts could not way, the UN Human Rights Committee has inbe dictated to by public opinion”, which “can- terpreted “sex” as including “sexual orienta- not replace in them the duty to interpret the tion”,29 and the European Court of Justice has Constitution and to enforce its mandates”.24 held that discrimination against transsexuals The issue in Banana was whether the com- constitutes sex discrimination.30 Most boldly mon law crime of sodomy was inconsistent of all, the High Court of Delhi has fashioned with the constitutional guarantee of non-dis- out of a seemingly closed list, protection on crimination on the basis of gender. Gubbay’s the basis of grounds analogous to those actu- principled dissent was in stark contrast to 31 In Naz Foundation v Govern- the position of the majority, which was that ment of NCT of Delhi, the issue was whether it was not the function of an “undemocrati- allysection specified. 377 of the 1860 Indian Penal Code cally appointed” court “to seek to modernise violated the right to equality, insofar as the the social mores of the state or of society at provision criminalised consensual sexual large”.25 What Banana demonstrates clearly is that automatic deference to the popular breach, the High Court concluded that sexual will may operate to shield (and even per- orientationacts between is a adults ground in analogous private. In to finding sex, and a petuate) prejudice, which is why the dictates that discrimination on the basis of sexual of constitutionality can on occasion legiti- orientation is not permitted by art 15 of the Indian Constitution.32 This was a remark- by considerations of social policy. Indeed, as Stephenmately entitle Wheatley the judiciaryhas pointed to be out, influenced modern article 15(1), which prohibits discrimination democracies are not populist but constitu- “onable grounds conclusion only given of religion, the specific race, caste, terms sex, of tional.26 Thus by declining to interrogate leg- place of birth or any of them”. Anchoring the islative distinctions on the basis that the list court’s decision in part was the effect it gave of prohibited grounds is closed courts may to the value promoted by the non-discrimi- be failing in their constitutional role. - sonal autonomy of the individual.33 Finally, it is worth noting that even from a nation right, which it identified as the per purely technical or doctrinal point of view, Treating the list of prohibited grounds of the Nielsen/Matadeen approach is weak. The austerity of treating the list of prohibited compartments” is an extremely restrictive approachdiscrimination to constitutional as creating “tight, interpretation, definitive by the text, which is not free from ambigu- grounds as closed is not necessarily justified and evidently one that is not justified by text,

The Equal Rights Review, Vol. Ten (2013) 16

theory or tradition. The continued judicial “[w]omen and men have equal rights adherence to this approach thus severely and the same legal status in all spheres of po- limits the scope of equality protection in the litical, economic and social life.” Commonwealth Caribbean. The Court of Appeal rejected this argument 3. Sex Discrimination - ited that central to article 29 was “the desire Compounding the stilted language of the con- toand, achieve by way equality of justification, of the sexes; Massiah it has JA noth pos- stitutional non-discrimination guarantees is ing to do with the elevation of the man”.36 a conservative approach that characterises Allowing a female citizen to confer the same much of the litigation brought on the basis of these provisions. This conservatism has could do in a comparable situation seems been most pronounced in two substantive ar- tobenefits be squarely on her about spouse achieving as a male equality citizen of eas: rulings on claims of sex discrimination, the sexes, so what the learned judge meant and the interpretation of the broad equality by this explanation is a mystery. Indeed, the right that appears in a handful of the region’s applicant developed this point directly, ar- constitutions. To a lesser extent, a degree of guing unsuccessfully that the effect of the restraint is also evident in the principles that Immigration Act was that a Guyanese man courts have invoked to guide their interpre- could enjoy the “comfort and pleasure of his tation of the equality guarantee in question. The effect of such moderation in relation to Guyanese woman. both procedural and substantive issues has alien wife’s society”, a benefit denied to a been to diminish the potential of the right, as evidenced in the discussion below. Massiah JA buttressed his conclusion by

(i) Women sense, pointing out that while a husband is legallyconstruing obliged dependency to maintain in a purelyhis wife, financial there One of the earliest cases in this area to have is no corresponding obligation on a wife engaged the attention of a Caribbean court to maintain her husband, so to interpret was Nielsen v Barker, where a Danish fugi- the provisions in the manner urged would tive in Guyana, resisting deportation to serve amount to a “sweeping, radical exercise”.37 a sentence for rape and murder in Denmark, However, this sexist notion of dependency sought the protection of marriage to a female is belied by modern legislation under which Guyanese citizen in order to claim the status a man can claim a share of his wife’s prop- of “belonging” to Guyana and thus outside the erty on divorce,38 so even if dependency had scope of prohibited immigrants.34 Under the - relevant legislation, “belonger” status was cial responsibilities, there was no good rea- conferred on both citizens and their depend- sonhistorically for clinging been to constructed such prejudices. around Indeed, finan the connection between dependency and using the gendered term “wife”. The applicant - arguedants, but that “dependant” pursuant towas the narrowly power to defined modi- tive of the section, and given the sweeping fy legislation to ensure its conformity with languagefinancial obligationof article 29(1), is not the a logical judge’s impera resist- the Constitution,35 “wife” should be read as ance to the more generous interpretation “spouse”, since article 29(1) of the Constitu- indicates the deeply rooted prejudices in tion provided unambiguously that: this area.

The Equal Rights Review, Vol. Ten (2013) 17

An even clearer instance of unrestrained Even worse, having faulted the plaintiffs for chauvinism within the judiciary is provid- their failure to lead evidence the trial judge ed by a case from St. Lucia in 1986, which then relaxed his standards for the defend- concerned a challenge to a law provid- even if ing for the dismissal of unmarried female the provision in question was discrimina- teachers who became pregnant.39 The ap- ants, finding in the alternative that plicants were both dismissed after each within either or all of the permitted excep- became pregnant for the second time. They tions,tory, it43 was rendering reasonably it constitutional. justifiable and Remark so fell- challenged their dismissal as constituting ably, the defendants did not specify which discrimination on the ground of sex, invok- exception applied, but the court was not ing section 13 of the St. Lucia Constitution deterred by their omission. The defendants which prohibits discriminatory laws and had simply argued that the impugned law treatment. Under this provision, “discrimi- was “in the public interest”, and the court natory” is defined as “affording different treatment to different persons attributable of any elaboration or discussion as to what wholly or mainly to their respective de- thataccepted interest this was justification or any evidence in the absencein sup- scriptions by sex, race, place of origin, po- port.44 This ruling is the epitome of judicial litical opinions, colour or creed”.40 The tri- deference to the state, even in the face of a al judge upheld the law in question on the profoundly discriminatory law with obvi- basis that he had heard nothing from the ously detrimental consequences – not just plaintiffs to shift the presumption of con- for single women and their children, but stitutionality. In so doing, the trial judge also for society at large. was applying an old approach to constitutional challenges, whereby a statute is pre- It is not clear that either of these cases would sumed to be constitutional and the burden be followed by another court today – in fact, lies on the litigant to lead evidence estab- in 2005 the Belizean Court of Appeal came lishing unconstitutionality.41 This repre- to the opposite conclusion to Girard on simi- sented a complete abdication of the court’s lar facts.45 But these cases are nonetheless role, given that it was self-evident that the important for several reasons. They are a provision impacted disproportionately on clear illustration of the historical attitudes unwed mothers. To ask the victim of a law towards women, which persisted up until which prima facie limits a constitutional relatively recent times. They embody a reso- right to prove that the law in question is lute outlook against interpreting the non- unjustifiable seems counter-intuitive, discrimination guarantee meaningfully, and since information as to a law’s purpose one of the most restrictive aspects of Nielsen will not be readily accessible to ordinary – that the listed grounds are exhaustive – has citizens. Thus a presumption of constitutionality which inverts the burden of proof courts.46 Ultimately, it is entirely a matter of will routinely result in limiting laws being beenspeculation repeatedly whether reaffirmed these cases by subsequent represent upheld. The injustice of this approach has current judicial attitudes, simply because since been recognised, and the presump- of the dearth of litigation on the subject. In- tion of constitutionality is now viewed as a deed, the latter fact has itself been held out canon of construction to be applied where as possibly underscoring the lack of impor- legislation is ambiguous, rather than as im- tance accorded to gender equality issues in posing a burden of proof on an applicant.42 the Caribbean.47

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(ii) Sexual Minorities not even bother to reveal that her statement applied to the challenge to the sexual orien- If the position in Nielsen or Girard tation exclusion. The only clue in the entire restrictive attitude in relation to women, it judgment that this challenge was overruled should come as no surprise to discovertypified that a comes from a passing reference in the dis- sexual minorities have fared even worse. In senting opinion of Lord Bingham, who stat- Trinidad and Tobago, equal opportunities ed tersely that he “would not understand legislation was enacted in 2000 to prohibit ‘sex’ in section 4 of the Constitution to em- discrimination in both the private and pub- brace sexual preference or orientation”.55 lic spheres and to promote equality between persons of different statuses.48 The Equal Baroness Hale’s position was particularly perplexing, for only two years earlier she as constituted by a variety of personal char- came to the opposite conclusion in an Eng- acteristicsOpportunities including Act (EOA) “sex, race, specified ethnicity, “status” re- lish case. In Pearce v Mayfield School she ligion and disability”,49 with “sex” explicitly agreed that discriminating on the basis of sexual orientation was one species of sex or orientation.50 A challenge to this provision discrimination, pointing out that those “who wasdefined unanimously as not including upheld by sexual the Trinidad preference and treat homosexuals of either sex less favour- Tobago Court of Appeal, which found the ex- ably than they treat heterosexuals do so be- - cause of their sex: not because they love men al for violating the fundamental rights of per- (or women) but because they are men who sonsclusion on to a bebasis unjustified analogous and to unconstitution that of “sex”.51 love men (or women who love women). It Buttressing his reasoning, Archie JA made is their own sex, rather than the sex of their an explicit connection between fundamental partners, which is the problem.”56 Hale’s rights and the inherent dignity and value of abrupt volte-face in Suratt thus demanded, human beings, describing the statutory ex- at a minimum, some explanation. clusion as particularly “invidious”.52 Whether “sex” includes “sexual orientation” However, not only did the Privy Council is, admittedly, a highly contested notion. The overturn this progressive result, they did United Nations Human Rights Committee so summarily and with contemptuous dis- was one of the earliest bodies to make this regard for the gravity of the issue at stake. connection,57 but since they too provided no Writing for the majority, Baroness Hale analysis or explanation in so deciding, the cursorily invoked a standard limitations case in question is not a reliable authority. In analysis in relation to broadly stated rights, arriving at the opposite conclusion, the Privy under which a limiting statute may be con- Council in Suratt was at least being consist- stitutional if it “pursues a legitimate aim ent with the position taken by the House of and is proportionate to it”.53 This enabled Lords in its earlier decision of Macdonald v the imperious conclusion that “there can Advocate General for Scotland, where it held be little doubt that the balance which Par- that the dismissal of a serving member of the Royal Air Force because he revealed his and consistent with the Constitution”.54 Bar- homosexuality did not constitute direct sex liamentoness Hale has did struck not explainin the EOA why isthis justifiable balance discrimination under the Sex Discrimination was constitutionally sound; in fact, she did Act 1975.58 In Macdonald -

, all five judges rea

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soned that the discrimination was plainly as comparator’s partner is not to be changed. a result of sexual orientation, not sex. In as- In their view, sexual orientation is a relevant certaining the appropriate comparator they characteristic, which meant that a homo- held that like had to be compared with like, sexual man had to be compared to a lesbian which meant that all relevant characteristics and not a heterosexual woman. But the prob- – of which sexual orientation was one – had to remain the same. Since homosexual men Wintemute, that treating sexual orientation were liable to be dismissed, as were lesbi- aslem a withrelevant this characteristic is precisely, as(and identified therefore by ans, the policy was not discriminatory on the changing the sex of the comparator’s partner ground of sex.59 as well) disguises the sex discrimination at work. As Baroness Hale herself had recog- Given these sharply divided opinions on nised in Pearce, a person’s sexual orientation whether sex discrimination covers sexual cannot be determined without knowledge of orientation discrimination, the scant treat- and reference to his or her sex. At its most es- ment accorded by the Privy Council to this is- sential core, sexual orientation is intimately sue in Suratt was wholly inadequate. Moreo- connected to sex, and logically it must be a ver, Macdonald is not a model of clarity, nor species of sex discrimination. does it embody the most persuasive stance on the issue. Notably, Robert Wintemute has Ultimately, whatever the merits of these vari- argued that when making comparisons in a ous positions, the debate itself was largely ir- discrimination analysis, it is impermissible relevant to Trinidad and Tobago. In Macdon- to change any of the factors since that would ald, the House was determining the meaning disguise the operative discrimination.60 Thus of “sex” as contained in an English statute, in assessing whether discrimination exists which does not list “sexual orientation” as a where a man complains of being treated dif- protected characteristic. The Constitution of ferently because of having a male partner, Trinidad and Tobago, by contrast, does not Wintemute states that only the sex of the protect against discrimination on the basis of comparator must be changed and not the sex of the comparator’s partner.61 Thus the com- provides an expansive guarantee to “equal- parator of a male complainant is someone of ityany before specified the ground law”. It or has grounds, long been but insteadsettled the opposite sex (since the claim is sex dis- that the introductory clause63 to the Trini- crimination); however, so as not to disguise dadian bill of rights is not an independent the sex discrimination, the sex of the part- non-discrimination clause, and courts64 as ners (both complainant’s and comparator’s) well as commentators65 have accepted that must be kept constant. The mistake of the the grounds enumerated therein do not con- Macdonald approach, Wintemute explains, stitute a list – exhaustive or otherwise – of lies in ignoring that sexual orientation is prohibited bases of discrimination. Astonish- eminently a “sex-based criterion”,62 which is ingly, the Privy Council itself has recognised hidden when a gay man is compared with a and approved of this position, with none oth- gay woman. er than Baroness Hale herself articulating it in clear terms.66 This rendered any debate as While the House of Lords agreed in prin- to whether “sex” includes sexual orientation ciple with the approach of comparing like wholly otiose, and Lord Bingham’s conclu- with like, they disagreed that the sex of the sion to this effect was of no relevance.

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The better approach in Suratt was that taken criminatory. Writing for the majority, Barrow by the Court of Appeal, which found sexual JA reasoned that the school rule concerning orientation to be analogous to “sex” as listed hair length could not be read in isolation, for in the introductory section.67 By so doing the it was part of a larger code regulating ap- Court of Appeal recognised that the Constitu- pearance. He continued saying that the rules tion does not provide a closed list of grounds, sought to enforce a conventional appearance so there was no need to embark on a discus- on the part of both boys and girls by prohib- sion of whether or not sexual orientation iting “stylish” haircuts. The rules were there- was covered by “sex”. In this way, sexual ori- fore even-handed in their application to both entation was viewed as a ground in its own sexes and not unconstitutional. right, applicable because of its relation to existing enumerated grounds (an argument by There are several problematic aspects of analogy).68 Given their familiarity with this Barrow’s reasoning, two of which stand out. most basic aspect of the Trinidadian bill of rights, demonstrated elsewhere, there is no able to come to this conclusion by reading kind way to explain this aspect of the Privy theThe dressfirst is codethat theas Courta whole of Appeal – an approach was only Council’s decision in Suratt. - able. As Robert Wintemute has pointed out, (iii) Dress Codes non-discriminationthat is not obviously is concerned warranted with or justifi individual treatment, not group rights, so there In a case from St. Kitts and Nevis, Kaleel is no rationale for lumping different choices Jones, a four year old boy, was prevented together and examining their net effect. from attending school because of his long Instead, in keeping with the nature of the hair.69 The school rules provided a comprehensive code on appearance, stipulating in rule’s effect on the ability of individuals to part that neither boys nor girls could have right, what must be considered70 Further, is a specific even stylish hairstyles, which meant no “hairdos” if the rules are to be lumped together, this for girls or long hair for boys. Kaleel’s parents makedoes not each suspend specific the choice. standard requirement refused to cut his hair, alleging that doing so of any non-discrimination analysis that would cause him psychological trauma. Be- like must be compared with like – which, cause both sides refused to budge, the par- it is clear, the court abysmally failed to do. ents were eventually forced to enrol Kaleel in By treating the rule regulating the length another school which did not have the same of boys’ hair as similar to that regulating restriction on hair length. Kaleel sued, alleg- girls’ hairdos and preventing hair exten- ing that the school’s decision to refuse him sions,71 what the court did was to compare admission until his hair was cut short was a biological feature (hair length) with arti- discriminatory on the grounds of sex, given that the rule applied to boys and not girls. wear her (long) hair ordinarily at school The Court of Appeal disagreed, holding that whilefice (hair remaining style). Under free toone style rule ita girlat home,could the essence of discrimination is different and whereas under the rule that applied to boys, less favourable treatment to one person as the requirement of only short hair in school compared with another, and since the rules would necessarily dictate hair length every- in question merely differentiated between where else. In other words, the rules were the sexes in enforcing a common approach not comparable, so there was even less jus- regulating appearance, they were not dis-

tification for lumping them together.

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The second and even more troubling feature and ethnographic studies in the Caribbean of the court’s decision was its conclusion that describing a culture of rampant masculin- in regulating the appearance of its students, ity and linking this to profound gender in- the school was entitled to require a “conven- equalities, acute levels of violence against tional appearance”.72 women, homophobic violence (which is not apparently overlooked that “convention” necessarily directed only at homosexuals) is often barely disguised In so findingprejudice, the whichcourt and under-performance by boys and men in acquires legitimacy through familiarity or education.76 According to Tracy Robinson, tradition. This connection was clearly made violence against women “remains in the Car- by the South African Constitutional Court ibbean a pervasive and debilitating condition in 2008 in MEC for Education v Pillay, a case of women’s lives and the concept of gender that essentially raised the same issue. In Pil- is indispensable to understanding why and lay, a student challenged a school rule which to whom it happens”.77 The point here is that prohibited her from wearing a nose stud to social constructions of gender and masculin- school.73 Although this was a part of South ity, or mainstream expectations of how boys and men should behave, have resulted in school rule was held to promote “acceptable negative consequences, and thus should not convention”Indian cultural and tradition, thus no at unfair first instancediscrimina thetion was found. Overturning this ruling, Lan- ga CJ pointed out that: Inbe reflexivelythis case, perpetuated.the hair length rule was not wholly neutral, for there was testimony to “[T]he norm embodied by the Code is the effect that Kaleel would suffer psycho- not neutral, but enforces mainstream and logical harm if his hair was cut. One wonders historically privileged forms of adornment, what prejudice would result from allowing such as ear studs which also involve the piercing of a body part, at the expense of when traditional social constructions of minority and historically excluded forms. It masculinitya child’s individuality have been toknown flourish, to be especially attended thus places a burden on learners who are un- by, even if only tangentially, negative conse- able to express themselves fully and must at- quences. In this context, the court’s dogged tend school in an environment that does not insistence on enforcing convention betrayed completely accept them.”74

Religion and culture which feature in Pillay 4.a deeply Multiple unreflective Equality attitude. Guarantees: Belize, are no more important than issues related to Guyana and Jamaica sex and gender. Pillay reminds us that conventions can be exclusionary, majoritarian As mentioned above, three Caribbean con- and therefore just as harmful to minorities stitutions – those of Belize, Guyana and as other rules – so reliance on them should most recently Jamaica – contain general not automatically legitimise a current rule or practice. By not accommodating these discrimination guarantee. Given that the nuances in relation to Kaleel’s situation, amendmentsequality rights in in the addition constitutions to a specific of Guyana non- the Court of Appeal displayed no apprecia- and Jamaica are the most recent, not much tion of how decisions like its own help to re- of substance has been generated in these inforce stereotypes around masculinity.75 countries regarding the meaning and inter- There is a wealth of sociological literature relationship of these multiple guarantees.

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Nonetheless, what is common to the little cated alongside the boardwalk. The claimants jurisprudence that does exist is the marked sued, alleging, among others, breaches of sec- absence of a principled approach guiding the tions 6(1) and 16. interpretation of the sections. The most comprehensive treatment of the In the Belize Constitution, there are two - provisions relating to equality: section 6(1), stance by the Chief Justice. He held that sec- which provides that “[a]ll persons are equal tionequality 6(1) argumentswas merely was a procedural given at firstguaran in- before the law and are entitled without any tee80 – that is, a “guarantee of due process to discrimination to the equal protection of everyone”.81 According to his interpretation, the law”, and, section 16(1), which is the the section requires that any unfairness of standard non-discrimination right provid- treatment alleged had to be measured by ing protection against discriminatory laws reference to section 16, that is, the detailed and treatment on certain listed grounds.78 anti-discrimination section.82 Thus unless Section 6(1) is unique for a Caribbean con- the reason for the different treatment corre- stitution not only because it is an addition to the more common non-discrimination right, in section 16, there could be no violation of but also because it is immediately followed sectionsponded 6(1). to one83 In of this the case, specific because grounds the treatlisted- in section 6(2) by a long list of procedural ment complained of did not fall within one protections for the criminally accused, rights of those categories, there was no breach of that are normally characterised as “due pro- either section. cess” or “protection of the law”. However, this placement has proved to be inauspicious, On appeal, this interpretation was unani- for its proximity to due process rights has mously upheld. The Court of Appeal judges cut down the provision’s scope as a general equality right. an element of state action, holding that, for thiswere reason, particularly the constitutional fixated on the right absence was not of The main case to have considered the mean- 84 But each went ing of these multiple guarantees is Fort Street Tourism Village v AG, where the claimants applicablediscrimination in the that first would place. fall within the complained of discriminatory treatment in re- termson to findof section that, in16(1). any 85 event, Morrison there JA was point no- lation to their ability to access the patronage edly added that the Chief Justice was “plainly of tourists coming off of cruise ships.79 The ab- right” in his interpretation of section 6(1). sence of a deep water harbour in the area surrounding Belize City means that cruise ships The most glaring problem with this approach have to moor at sea, and passengers are then to section 6(1) is that it turns the guarantee ferried to a boardwalk where they complete into mere surplusage. If a claim alleging a the immigration process. The problem arose breach of either equality before the law or the from the fact that the government designated equal protection of the law can only succeed a private company, Fort Street Tourism Village, where the ground of differentiation is one of as the sole port of entry and exit, whereupon those listed in section 16(3), there is nothing the company erected concrete barriers on the to gain by invoking 6(1) and a litigant need boardwalk. The effect of these structures was only rely on section 16. However, since it is to prevent easy access for the tourists to the presumed that parliament does not legislate claimants’ businesses, all of which were lo- in vain, section 6(1) must have been included

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for some reason. One can derive some assis- certain factors leads to a conclusion that the tance in discerning that reason by referring differentiation is not unfair, then there is no to other bills of rights. The most helpful in violation of 9(3), but if the differentiation is this regard is the South African one, which - also contains a multi-faceted equality right.86 quiry arises. Under this model there is both a general dec- found to be unfair, then the final stage of en laration of equality in section 9(1), as well as At the third stage, which arises if unfair discrimination is established and only in rela- certain listed grounds in section 9(3). tion to laws of general application,88 the court specific provision against discrimination on has to examine whether the proved discrimi- The Constitutional Court of South Africa has established three stages of inquiry to as- provision. In undertaking this analysis, the sess a claim of discrimination under section courtnation adopts can be ajustified proportionality under the test, limitations balanc- 9, the key result being that the scope of the ing the object of the provision against the ex- general equality right in subsection (1) is not tent of its infringement of equality. fenced in by the subsequent list of prohibited grounds of discrimination in subsection As is evident from this carefully designed (3).87 approach, the broad equality right in section 9(1) is not treated as parasitic on 9(3), and this stage At the if firstany differentiationstage, the court is scrutinises found not each guarantee serves a distinct purpose. tostatutory have a classifications,rational connection and a to law a legitimatecan fail at government purpose. If any differentiation is found to bear a rational connection to a legit- Specifically, there are two key consequences imate aim, then the second stage of analysis basedto the itemisationon any of theof groundslisted factors in 9(3): is first,pre- arises to ascertain whether it might never- sumedtreatment to constitute motivated unfair by or discrimination, classifications theless amount to discrimination. protected characteristics imposes a higher At the second stage, the court must ascer- standardand second, on the the state express where identification it seeks to jus of- tify unfair discrimination on those bases. But if a ground is not listed in 9(3) this does determiningtain whether the the motivation, identified and differentiation second, the not mean that a litigant cannot establish in- impact,is unfair. of Thisthe different involves treatment. two inquiries: If the first,mo- equality of treatment under section 9(1) – tivation or reason for the differentiation is all it does is impose a different burden and standard of proof. then unfairness is presumed and discrimina- tionbased is onestablished. a ground Thisspecified presumption in section can 9(3), be Another relevant fact to consider is that both rebutted. Alternatively, if the motivation is expressions incorporated in Belize’s section 6(1) – equality “before the law” and “equal be unfair (though not presumptively so) if protection of the law” – are terms laden with thenot reasonbased onfor a the specified differentiation ground, isit basedmay still on meaning. Given their rich antecedents, it asks “attributes or characteristics” that have the too much to view their inclusion in the bill of potential to impair human dignity or affect rights as mere coincidence or empty rheto- persons adversely. In other words, the list of ric. In Matadeen,89 for instance, where the - applicants argued that the guarantee of “pro- ed as exhaustive. Next, if the consideration of tection of the law” in section 3 of the Con- grounds specified in section 9(3) is not treat

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stitution of Mauritius expressed a general ted any offence or having been made subject principle of equality, one of the reasons given to any penalty”.94 by the Privy Council for rejecting their argument was the absence of the word “equal” Thus by their summary treatment of the before “protection”. Lord Hoffman attached general equality right in section 6(1), the Belizean courts have eviscerated the clause out that section 3 of any meaningful content. Their interpreta- great significance to this omission, pointing tion is inconsistent with the plain meaning of “[I]n fact contains no reference at all the provision, and it runs counter to a sub- to equality. In this respect it is to be distinguished from the Fourteenth Amendment to other common law jurisdictions regarding the Constitution of the United States of Amer- thestantial meaning and influential and scope body of ofwhat learning are really from ica and article 14 of the Indian Constitution.”90 terms of art.

By referencing the Fourteenth Amend- In Guyana and Jamaica there has not been ment to the US Constitution, which prohib- any substantial treatment of these multiple its States from denying to any person “the rights as yet, so it is unclear whether the nar- equal protection of the laws”, Lord Hoffman row approach adopted in Belize will prevail. was invoking one of the best known consti- In Vieira Communications v AG of Guyana95 the tutional guarantees of equality. This clause general equality right was invoked, but since has been invoked to invalidate legislative the court found a breach of the right without 91 any analysis, the case provides no guidance and over time it has evolved into a substan- on how these multiple rights should be inter- classifications for more than 100 years, preted. Moreover, the little said by the court narrow guarantee of protection against un- is not promising. In that case, the applicant equaltive equality treatment. guarantee,92 not confined to a company, which operated a television network in Guyana, applied in March 1993 for American jurisprudence has proved to be a broadcast radio licence from the relevant regulatory agency. Not receiving any deci- in Canada, where similar language in their sion on its application for more than eight billhugely of rights influential93 was and interpreted nowhere – more not as so mere than years, the company brought a successful procedural protection – but as a substantive constitutional claim, in which it invoked its guarantee of equality in the content of laws. expression and equality rights (among oth- In what has become one of the best known ers). In the Court of Appeal, the latter claim explanations of this phrase, Canadian Su- was raised and determined in two sentences: preme Court Justice Ritchie J has stated: “[The appellant company] submits that “[S.] 1(b) means at least that no individual the NFMU has discriminated against it by or group of individuals is to be treated more failing to grant it a radio broadcast licence harshly than another under the law, and I am while it granted licences for the operation of therefore of the opinion that an individual is three government controlled radio stations, denied equality before the law if it is made in contravention of its fundamental rights an offence punishable under the law (...) for guaranteed by arts 149D(1) and (2). The re- him to do something which his fellow Cana- spondents have not directly addressed this dians are free to do without having commit- -

argument and we have experienced no diffi

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culty in coming to agreement with the appel- ticle 149D cannot be established merely by lant on this submission.”96 proof of different treatment, the same must be done by Guyanese courts too. While this outcome cannot be faulted, the lack of analysis by the court leaves us no clos- 5. General Equality Rights: Trinidad and er to the development of a body of principles Tobago to guide the interpretation of the Guyana Constitution’s multiple equality provisions. Alone amongst all the bills of rights in the Commonwealth Caribbean, the one in Trini- which were the three government-controlled dad and Tobago’s Constitution contains a The court clearly identified comparators, general right to equality without a separate cannot be assumed that if the state obtains aradio radio stations, broadcast but thislicence alone every is insufficient. other appli It- non-discrimination.97 Since this constitu- cant is automatically entitled to one as well tionprovision is the second prohibiting oldest specificof the independence grounds of – equality, after all, does not require identical constitutions in the Caribbean there has treatment. Thus in addition to identifying a been enough time to articulate appropriate comparator, proof that the differential treat- principles to guide the interpretation of the ment was motivated by a prohibited ground relevant clauses, but remarkably such guid- is also required. Given that the appellant ance has not yet materialised. On the con- company relied on the general equality right trary, the interpretation of the two equality this meant that it was not restricted to invok- clauses in section 4 has consistently bedev- illed the judiciary. non-discrimination right, but that did not absolveing one itof from the grounds identifying listed an impermissiblein the specific One of the earliest cases under section 4(d) motivation altogether. was a successful claim brought against the

Moreover, also missing from the court’s de- consider applications for work permits by cision was any guidance on how to construe theChief applicant Immigration company, Officer while for doing his refusal so for toat the several rights related to non-discrimina- least one other company.98 While the Court tion in Guyana’s Constitution: is it entirely of Appeal of Trinidad and Tobago held cor- the choice of a potential litigant which of rectly that in order to establish a breach of these clauses is applicable? If so, what is the this right it is not necessary to show that the breach fell within the introductory words of discrimination right in 149 and the more section 4, it appears that the applicant suc- generalrelation equality (if any) right between in 149D? the specific Where non- the ceeded in this case without establishing any general right is invoked (as in this case), reason at all for the different treatment. This, like the Guyanese case discussed breach, or is there a preliminary burden on above, suggests that the mere fact of dif- eitherdoes any party differentiation to demonstrate result the in areason finding for of ferentiation is unlawful – an unsustainable the differentiation? If so, what is the standard position since the law cannot guarantee by which any proved differentiation must be identical treatment to all. LJ Williams was followed by another case where the court South African jurisprudence, these are all is- simply looked for a similarly circumstanced suesassessed that andhave possibly been carefully justified? worked As seen out from in a series of cases. Given that a breach of ar- was no discrimination.99 person, and finding none concluded there

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What is continually misunderstood by these One of the most notable instances of its appli- cases (including the Guyanese one) is that cation occurred in a claim by a female Muslim merely identifying an appropriate compara- student that the decision of the school in ques- tor cannot be enough, and a litigant should also be required to establish that the dif- version of the uniform to accommodate the hi- ference in treatment proceeded from some jabtion constituted, to refuse to among allow herother to breaches, wear a modified a viola- improper motivation. Describing the two tion of her right to equality of treatment under Trinidadian cases as “total conceptual disas- section 4(d).104 The trial judge held that in the ters”,100 Margaret DeMerieux, the doyenne of absence of bad faith or hostile intention on the Caribbean human rights law, writes: part of the headmistress and the school board, there was no unequal treatment. This is, of “[LJ Williams] makes of section 4(d) - something quite different from discrimination does not depend on bad faith, and there natory treatment in the other West Indian iscourse, no shortage plainly ofincorrect. authority A findingto this effect.of discrimi105 Yet sections and indeed discriminatory treat- the Privy Council, despite recognising the er- ment as generally understood in law. This is ror, has declined to address it,106 making only the limited concession that mala fides cannot making of decisions on the basis of unlawful distinctionsthe conferral and of benefitscriteria orof burdens,differentiation, or the in issue.107 This concession was long overdue motives be in issue where a legislative classification is for the governmental decision or action.”101 possible instances of unequal treatment under which constitute specific wrongful sectionbut still 4(d). insufficient, for it does not cover all Explaining this approach, she continues: Although more than two decades have “It is quite inconceivable that section - 4(d) could have been designed as a guaran- rors in the prevailing approach to the equal- tee for the actual equal treatment of persons ityelapsed provisions, since DeMerieux the most identifiedrecent cases the erin in Trinidad and Tobago, similarly circum- Trinidad and Tobago in the area continue to stanced or not, especially where the similar repeat them. In Paponette v AG,108 a dispute circumstance depends on judicial choice or arose between the maxi-taxi association and formulation, not determined by any observ- the state concerning the removal of taxis ply- able principle, and as so often said here, not ing two routes (Nos. 2 and 3) to “City Gate”, a determined by the discovery of the basis for taxi docking area located on land controlled different treatment. It could hardly be the by the Public Transport Service Corporation case, that all persons who could possibly ap- (PTSC). The association was assured that the ply for certain licences (in some cases the management of City Gate would be entrusted class could be the whole population), should to them, but when this failed to materialise be able to get one, once any other person has they sued. One of the grounds of action in- received one.”102 voked section 4(d), the claim being that the owners and operators of routes 2 and 3 were Another conceptual misstep by Trinidadian treated differently from the owners and op- courts, again stemming from these two early erators of other routes, since they alone were cases, has been the requirement of mala fides in under the control of PTSC and required to establishing a breach of either equality right.103 pay a fee for docking.

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In the Court of Appeal the equality claim was The weakness of both decisions is that they - comparators – the operators of other routes quiry, which makes a muddle of what must –dismissed were not on similarly the ground circumstanced that the identified because beappear proved, to when, conflate and distinct by whom. stages The ofeffect in they did not operate in Port of Spain. While the of both Paponette and Maraj is to approach all differences, in law and treatment, as pre- - onceultimate again, finding failing may to appreciate have been that correct, it is not the tion by the state. This imposes an onerous enoughcourt’s reasoning to identify was a similarly flawed. Thatcircumstanced error was, burdensumptively on the suspect state, and given requiring that legislation justifica person or group, for what is also required is - an examination of the bases of the different ple for legitimate reasons. Early on in its ju- treatment of the two groups. It is only if the risprudenceroutinely classifies the South between African classes Constitutional of peo complaining group is treated differently from Court demonstrated an awareness of this, another for an impermissible reason that the and in one case they cautioned that: constitutional right is breached. “If each and every differentiation Although the Privy Council decided the mat- made in terms of the law amounted to un- ter on the basis of the property right, they also adverted to the equality claim. Overrul- means of resort to s33, or else constituted ing the Court of Appeal, they decided that discriminationequal treatment which that hadhad toto bebe justifiedshown not by since the state had led no evidence regard- to be unfair, the Courts could be called upon ing the reasons for the different treatment, the court was forced to speculate and so about the whole legislative programme and found a breach of section 4(d).109 While the almostto review all theexecutive justifiability conduct or (…)fairness The Courtsof just Privy Council may have been nearer to the would be compelled to review the reasona- mark than the Court of Appeal, another case - decided by them originating from Trinidad tion of rights, duties, privileges, immunities, and Tobago only one month before indi- bleness or the fairness of every classifica cates that doctrinal confusion still persists. law. Accordingly, it is necessary to identify In that case, Public Service Appeal Board v thebenefits criteria or disadvantages that separate flowing legitimate from anydif- Maraj,110 at issue were regulations which ferentiation from differentiation that has laid down different procedures for dealing crossed the border of constitutional imper- with disciplinary matters related to public missibility and is unequal or discriminatory ‘in the constitutional sense’.”112 of the respondent on the basis (once again) thatofficers. the stateThe Privyhad failed Council to advance found in any favour jus- No doubt, this is why in South Africa equality claims are approached in stages, and proof curtly stating: “Legislation frequently has to of mere differentiation does not instantly drawtification distinctions for the differencebetween different in procedures, classes - of people. Such distinctions may well be jus- ferentiation is only unconstitutional if it does notrequire bear justification. a rational connection At the outset, to a legitimate mere dif than others. But at the very least they must government purpose. At this stage the court servetified. aSome legitimate distinctions aim and are be easier rationally to justify con- employs a lower level of scrutiny than when nected to that aim.”111 -

it is assessing the justification for the limita

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tion of a right.113 It is only if discrimination general equality right where the relevant (as distinct from mere differentiation) is courts, including the Privy Council, have found to exist that the state is then required failed to work out answers to some of the to justify the law or action. most basic questions. For example: where the actual provision does not specify pro- None of this analysis occurred in Paponette or tected characteristics, what constitutes Maraj - impermissible bases of differentiation? On ment, both applicants succeeded because the whom does the burden lie to establish un- , where, on a finding of different treat lawful discrimination? At what stage must In Paponette at least, there was an obvious proved differentiation be justified, and if andstate compelling did not lead reason evidence for the in relocation justification. of so, by what standard? In fact, is proving the taxi stands in Port of Spain, which was motivation required at all, given that many of the cases consistently have suggested plagues the city. To have simply found in this that merely establishing different treat- caseto ease (as the in Marajnotorious) that traffic there congestion was an unjus that- ment of similarly circumstanced persons is sufficient to establish discrimination? elided over several distinct stages which re- quiretifiable preliminary breach of equality, determinations the Privy of Councilration- Some of these questions touch on deeply contested issues, such as the nature of dis- differential treatment, with each being at- crimination and on whom the responsibility tendedality and by identification differing levels of ofthe proof. motivation for lies for establishing its boundaries. They in- - 6. Conclusion tral to the need for protection is that equal- ityvolve is difficultlinked to but human not abstract dignity; inquiries. that it aimsCen Caribbean bills of rights include provisions to discount irrelevant personal characteris- which are capable of generating protection - to minorities and marginalised groups, sions; that it seeks to redress the historical however guarded the language of such marginalisationtics from influencing of certain certain minorities; essential deciand, guarantees may be. The larger problem has that majorities may sometimes be unable been a conservative approach to the right, (or even unwilling) to provide protection. characterised by strict literalism and an in- Unless courts of the Commonwealth Carib- ability to situate claims within their larg- bean demonstrate an appreciation of these er social context. This conservatism has imperatives, they will continue to be unable been compounded by confusion on certain to fashion a coherent and meaningful juris- key issues, particularly in relation to the prudence on equality.

1 Arif Bulkan is a Lecturer at the Faculty of Law, University of the West Indies, Trinidad & Tobago. This

Caribbean human rights law at the Cave Hill campus of the UWI in 2009 and 2010. He wishes to acknowledge her article benefits from years of collaboration with the author’s colleague Tracy Robinson, with whom he co-taught the author’s sole responsibility. insights and influence, beyond those footnoted, for which he is heavily indebted and very grateful. Any errors are

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2 Romer v Evans 517 US 620 (1996) and Lawrence v Texas 539 US 558 (2003). 3 Davidson, A., “The Animus of Antonin Scalia”, New Yorker, 12 December 2012, available at: http://www.newyorker.com/online/blogs/comment/2012/12/the-moral-feelings-of-antonin-scalia.html. 4 Wheatley, S., “Minorities under the ECHR and the Construction of a Democratic Society”, Public Law, 2007, pp. 783-784. 5 Based on similarities in content, the original constitutional bills of rights of the twelve independent countries which make up the Commonwealth Caribbean can be loosely grouped into two categories: the “older” model,

(1962), Guyana (1966), Barbados (1966) and the Bahamas (1973), and the “newer” model, comprising all the rest,comprising namely those Grenada of the (1974), first fiveDominica countries (1978), (except St. LuciaTrinidad (1979), and St.Tobago) Vincent to andgain the independence, Grenadines (1979),namely JamaicaAntigua and Barbuda (1981), Belize (1981), and St. Christopher & Nevis (1983). The Trinidadian bill of rights diverged

Human Rights like the others. Since independence, Guyana’s version was extensively amended in 1980 and again betweensignificantly 2001 as and it was 2003, patterned and Jamaica’s after the bill Canadian of rights bill was of repealed rights of and1969 replaced and not in the 2011, European with the Convention substituted on version now bearing a greater resemblance to the Trinidadian model. 6 Tracy Robinson, Commonwealth Caribbean Human Rights Law, Course Materials – Equality, University of the West Indies, 2012, p. 2. This omission was most pronounced in the original Independence Constitution of Jamaica, wherein the word ‘equal’, including its derivatives, did not appear at any place in the bill of rights. 7 Section 4 of the Trinidad and Tobago Constitution provides: “It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely– (b) the right of the individual to equality before the law and the protection of the law; and (d) the right of the individual to equality of treatment from any public authority in the exercise of any functions...”. 8 Constitution of Belize 1981, s. 6(1). 9 Constitution of Guyana 1980, Article 149D. 10 Charter of Fundamental Rights and Freedoms 2011, sections 13(3)(g) and (h). 11 See, for example, Constitution of South Africa, s. 9(3) or Constitution of India, s. 15. 12 See above, note 10, s. 13(3)(i). birth, social class, pregnancy, religion, conscience and belief or culture”. 13 In addition to the previous five, the grounds added are “age, disability, marital status, sex, gender, language, 14 Nielsen v Barker (1982) 32 WIR 254. 15 Ibid., p. 282. 16 Ibid., p. 280. 17 [1999] AC 198. 18 Ibid., Para 16. 19 Ibid., Para 9. 20 Regina v R [1991] 3 WLR 767. 21 Ibid., pp. 770-772. 22 For an overview of the main cases of this period see: Burnham, M., “Indigenous Constitutionalism and the Death Penalty”, ICon, Vol. 3.4, 2005, p. 582. Issues in the Government and Politics of the West Indies, University of the West Indies, 2001, pp. 75, 80-83; Professor Carnegie describes23 La Guerr this e,as J., the “Consensus “effectiveness and Conflictof party in discipline”: the Commonwealth Carnegie, A.R.,Caribbean”, “On Comparing in La Guerre, American J. (ed.), and West Indian Constitutional Law”, Paper presented at the Chief Justices’ Conference, Boscobel, Jamaica, 7 August 1987, p. 9 (on

24 [2004] 4 LRC 621. file with the author). 25 Ibid., p. 646.

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26 See above, note 4. 27 See, for example, Constitution of Barbados, s. 11. 28 Fredman, S., Discrimination Law, OUP, 2011, pp. 113-118. 29 Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992. 30 P v S and Cornwall CC [1996] All ER (EC) 397. 31 Naz Foundation v Government of NCT of Delhi, WP(C) No. 7455/2001, 2 July 2009. 32 Ibid., Para. 104. Note that this was a decision of the High Court of Delhi, not the Indian Supreme Court. 33 Ibid., Para. 112. 34 See above, note 14. 35 Under section 7 of the Constitution of the Co-operative Republic of Guyana Act 1980, existing laws are

conformity with the Constitution. required to be construed with “such modifications, adaptations, qualifications and exceptions” so as to ensure their 36 See above, note 14, p. 290. 37 Ibid., p. 290-291. 38 Married Persons (Property) Act, Chapter 45:04, Laws of Guyana. 39 Girard and Pierre v AG, LC 1986 HC 24 (HC, St. Lucia) 17 December 1986. 40 Constitution of St. Lucia 1979, s. 13(3). 41 Hinds v R. [1976] 1 All ER 353 (PC, Jamaica). 42 AG of the Gambia v Momodou Jobe [1984] AC 689 at p. 702; de Freitas v Permanent Secretary (1998) 58 WIR 131. 43 Section 13 of the St. Lucia Constitution provides a wide array of exceptions to the non-discrimination guarantee. Matthew J relied on “either or all” of sub-sections (4), (5) and (6), which exclude this guarantee from applying to laws made in relation to taxation and non-citizens, as well as treatment under the law in relation to adoption, marriage, divorce, burial, succession, and standards relating to employment. 44 Compare with the approach of the South African Constitutional Court: Moise v Transitional Local Council (CCT 54/00) 2001 (4) SA 491, Para 19. 45 Wade v Roches BZ 2005 CA 5 (Court of Appeal, Belize). 46 Spencer v AG (1998) 2 CHRLD 184 (Court of Appeal, Antigua & Barbuda) and SVG Green Party v AG VC 2005 HC 30 (High Court, St. Vincent). 47 Robinson, T., “Gender, Nation and the Common Law Constitution”, Oxford Journal of Legal Studies, Vol. 28, 2008, pp. 753-62, at p. 735. 48 Equal Opportunities Act, No. 69 of 2000. 49 Ibid., s. 3. 50 Ibid. 51 Suratt and Others v AG, Civil Appeal No. 64 of 2004, 26 January 2006, Paras 40-45. 52 Ibid., Paras 43-44. 53 Suratt and Others v AG [2007] UKPC 55, Para 58. 54 Ibid. 55 Ibid., Para 35. 56 Pearce v Mayfield School [2001] EWCA Civ 1347, Para 7. 57 See above, note 29. 58 Macdonald v Advocate General for Scotland [2003] UKHL 34. 59 Ibid., per Lord Nicholls, Paras 5-7; Lord Hope, Paras 70-71 and 73; and Lord Rodger, Paras 153-158.

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60 Wintemute, R., “Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes”, Modern Law Review, Vol. 60, 1997, p. 334. 61 Ibid., p. 347. 62 Ibid., p. 346. 63 See above, note 7. 64 LJ Williams v Smith and the AG (1980) 32 WIR 395. 65 DeMerieux, M., Fundamental Rights in Commonwealth Caribbean Constitutions, Faculty of Law Library, UWI 1992, p. 437. 66 In Public Service Appeal Board v Maraj (2010) 78 WIR 461, she stated (at Para. 27) that “the rights laid down in s 4 are free-standing rights, which exist irrespective of any discrimination on the enumerated grounds”. 67 See above, note 51, Para 43. 68 Vriend v Alberta (1998) 3 LRC 483. 69 AG v Jones KN 2008 CA 3, 2 June 2008. 70 See above, note 60, p. 355. 71 See above, note 69, Para 25. 72 Ibid., Para 27. 73 MEC for Education v Pillay (CCT 51/06) 2008 (1) SA 474. 74 Ibid., Para 44. 75 Cook, R., “Structures of Discrimination”, Macalester International Journal, Vol. 28, 2011, p. 33. 76 Chevannes, B., “The Role of Men in Families in the Caribbean: A Historical Perspective”, in Bannon, I. and Correia, M. (eds.), The Other Half of Gender, The World Bank, 2006, pp. 87-91, at p. 73; Chevannes, B., “What We Sow and What We Reap: Problems in the Cultivation of Male Identity in Jamaica”, The Grace Kennedy Foundation Lecture, Kingston, Jamaica, March 1999; and Parry, O., “Boys will be Boys: Why Caribbean Males Underachieve”, Conference Paper presented at the conference “The Construction of Caribbean Masculinity”, St. Augustine, Trinidad & Tobago, 12 January 1996. 77 Robinson, T., “An Analysis of Legal Change: Law and Gender-Based Violence in the Caribbean”, Caribbean Judicial Colloquium, Nassau, The Bahamas, 17-19 May 2004, available at: Judicial%20Colloquium.pdf. http://www.sdnp.org.gy/16days/files/

79 (2008) 74 WIR 133. 78 The specified grounds are sex, race, place of origin, political opinions, colour or creed. 80 Ibid., Para 44. 81 Ibid., Para 49. 82 Ibid., Para 52. 83 This is the standard approach to the non-discrimination right made popular by Nielsen v Barker, see text accompanying notes 14 to 16 above. 84 See above, note 79, per Mottley JA at Para 66 and Carey JA at Para 77. 85 Ibid. 86 Section 9 of the South African Constitution provides:

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement “(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

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(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. 87 Notably, Harksen v Lane NO 1998 (1) SA 300 (CC) and Hoffman v South African Airways 2001 (1) SA 1 (CC). 88 Hoffman, above note 87, Para 24. 89 See above, note 17. 90 Ibid., Para 16. 91 Gewirtz, P., “Race and Equal Protection of Laws: Strauder v West Virginia”, in Marshall, B. (ed.), The Supreme Court and Human Rights, Forum Series, 1982, p. 111. 92 Ibid., p. 119. 93 Section 1(b) of the Canadian bill of rights guaranteed “the right of the individual to equality before the law and the protection of the law”. 94 R v Drybones [1970] S.C.R. 282 at 297. 95 (2009) 76 WIR 279. 96 Ibid., p. 295. 97 See above, note 7. 98 See above, note 64. 99 AG v KC Confectionary Ltd (1985) 34 WIR 387. 100 See above, note 65, p. 434. 101 Ibid., p. 432 (emphasis in original). 102 Ibid., pp. 434-435. 103 See, for example, KC Confectionary, above note 99, p. 415. 104 Mohammed v Moraine (1994) 49 WIR 371. 105 James v Eastleigh Borough Council [1990] 2 AC 751. 106 In Bhagwandeen v AG (2004) 64 WIR 402, the court declined to rule on this point without detailed argument, maintaining this stance in Central Broadcasting Services v AG (2006) 68 WIR 459. 107 See above, note 66, at p. 471. 108 Paponette v AG (2010) 78 WIR 474. 109 Ibid., p. 493. 110 See above, note 66. 111 Ibid., pp. 472-473. 112 Prinsloo v Van der Linde 1997 (3) SA 1012 (CC), Para 17. 113 De Waal, J., Currie, I. and Erasmus, G., The Bill of Rights Handbook, Juta, 1999, p. 198.

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Behind Closed Doors: Trafficking into Domestic Servitude in Singapore

Libby Clarke1

1. Introduction

In recent years, the problem of human traf- being a transnational crime, it is also, inter attention both by international observers aliaficking,, a violation taking intoof the account right to thatequality as well and, asin –ficking including into Singaporethe Committee has received on the increased Elimina- some cases, a form of discrimination which tion of Discrimination against Women (Co- is, in addition, contributed to by a range of EDAW)2 and the US Department of State3 other inequalities and discriminatory laws, – and national stakeholders. The establish- policies and practices relating to a range of ment of the Inter-Agency Taskforce on Traf- prohibited grounds, including sex, nationality and economic status. The article centres - its analysis on the results of a study conduct- tivelyficking by in implementing Persons in 2010, holistic, the co-ordinat purpose of- ed by the Humanitarian Organization for Mi- edwhich strategies”, is to combat4 was a trafficking notable development. “more effec gration Economics (HOME) during 2012 (the HOME FDW Study) in which the cases of 151 - foreign domestic workers (FDWs) in Singa- ingIdentified and forced as a “destinationlabour”,5 efforts country are nowfor men, un- pore were examined in order to establish womenderway in and Singapore girls subjected to address to the sex problem traffick through the launch of a National Plan of Ac- domestic servitude – a form of gender-based discriminationthe specific characteristics recognised inof traffickingCEDAW and into in 2014 (the NPA) in March 2012, in which the the recommendations of the CoEDAW – in governmenttion against set Trafficking out its plans in Personsfor countering 2012- Singapore and to determine whether the ap- 6 The NPA follows the structure of the primary international law 8 all forms of trafficking. - Itproach assesses set outwhether in the theUN Traffickingcriminal justice Protocol re- tocol to Prevent, Suppress and Punish Traf- is sufficient to address such characteristics.- instrument relating to trafficking – the Pro col would prove more effective when incor- Children, supplementing the United Nations poratedsponse required as part of by a thebroader UN Trafficking approach Protowhich Conventionficking in Persons, against EspeciallyTransnational Women Organ and- has, at its core, the obligation of countries 7 – such as Singapore to “take all appropriate by adopting a “3P” approach of prosecution, - izedprevention Crime and(the protection, UN Trafficking and focussing Protocol) on tion of the right to equality and a form of dis- a criminal justice response. crimination.measures” to combat trafficking as a viola

This article seeks to analyse the adequacy of Singapore is an interesting specimen for anal- the criminal justice response to human traf- ysis in this regard for a number of reasons.

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Firstly, it is better known as a destination - country for foreign migrant workers9 – with work for states parties to follow in order to The UN Trafficking Protocol sets out a frame- non-citizens – than as a destination country ing within their national borders. It requires over one-fifth of the population made up of address comprehensively the issue of traffick the government is currently in the relatively through the enactment of a criminal offence earlyfor human stages traffickingof developing and, its as response stated above,to this states to prohibit and prosecute trafficking complex issue. Secondly, and perhaps more of trafficking, in all its forms, based upon the weak commitment to international human following definition set out in Article 3: rightssignificantly, mechanisms Singapore through has demonstratedits poor record a recruitment, transportation, transfer, har- on signing and ratifying international human bouring “‘Trafficking or receipt in ofPersons’ persons, shall by meanmeans the of rights treaties.10 The human rights obliga- threat or use of force or other forms of co- tions which it has assumed, however, centre ercion, of abduction, of fraud, of deception, around issues of equality and non-discrimi- of the abuse of power or of a position of vulnerability or the giving or receiving of pay- the Elimination of All Forms of Discrimina- tionnation Against – having Women ratified (CEDAW) the Convention in 1995 and on person having control over another person, having signed the Convention on the Rights forments the or purpose benefits of to exploitation. achieve the Exploitationconsent of a of Persons with Disabilities on 30 Novem- shall include, at a minimum, the exploitation of the prostitution of others or other forms which focuses less on the language of human of sexual exploitation, forced labour or ser- ber 2012. An approach to human trafficking vices, slavery or practices similar to slavery, language of equality and non-discrimination servitude or the removal of organs.”12 may,rights therefore, in general gainand moremore specifically traction in on this the rights-averse city-state. Whilst the definition set out in Article 3 of the UN Trafficking Protocol is used as the 2. Human Trafficking: A Global Crime of international “standard”, it is notable that Inequality there is no explanation within the UN Traf- ficking Protocol itself of the different con- International law provides guidance as to cepts upon which the definition is built. A helpful starting point is to identify the the steps which must be taken to effectively three different elements within the defini- combatboth the all definition of its manifestations. of human trafficking Both UN andhu- tion, all of which must be present for a case man rights treaties to which Singapore is a to be one of trafficking. These elements are party – CEDAW and the Convention on the as follows: Rights of the Child (CRC) – impose obligations regarding the enactment of legislation a) Action (recruitment, transportation, and other measures to suppress and prevent transfer, harbouring or receipt of persons); 11 - ing Protocol – to which Singapore is not yet b) Means (force, coercion, deception, fraud, atrafficking. party – which It is, provides however, the the most UN Traffickcompre- abuse of power, abuse of a position of vulner- hensive guidance as to the prevention and ability, or the giving or receiving of payments

having control over another person); and prosecution of trafficking in persons and the or benefits to achieve the consent of a person protection of those who have been trafficked.

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c) Purpose of exploitation (including, as a gender-based violence, whether by public or minimum, the exploitation of the prostitu- private act”.18 Further, states parties are rec- tion of others or other forms of sexual exploi- ommended to take both “preventive and pu- tation, forced labour or services, slavery or practices similar to slavery, servitude or the provide “effective complaints procedures and removal of organs). remedies,nitive measures including to overcome compensation”. trafficking”19 and

The terminology used to describe the “ac- In 2010, the UN High Commissioner on Hu- tion” element is self-explanatory, whilst man Rights called for “a human-rights based that used to describe the “means” and “purpose” is somewhat opaque. Assistance can identify and redress the discriminatory prac- ticesapproach and tothe trafficking”, unequal distribution which “seeks of topower both

Persons,be found13 in the the ILO definitions Convention provided concerning in the UNODCForced or Model Compulsory Law against Labour, Trafficking14 the Slav in- theirthat underlievictims”.20 trafficking,The Commentary which to maintain the Of- ery Convention 192615 and the Supplemen- impunity for traffickers and deny justice to tary Convention on the Abolition of Slav- Rights’ Recommended Principles and Guide- ery 1952.16 In addition, organisations such ficelines ofon theHuman High Rights Commissioner and Human onTrafficking Human

Crime (UNODC) and the International La- is a form of sex-based discrimination, and asbour the Organisation United Nations (ILO) Office have onprovided Drugs listsand isreiterates therefore the captured fact that bytrafficking the obligations of women of of indicators which can be used to assist law states to protect the fundamental human right to equal treatment and non-discrimina- legal practitioners and civil society organi- enforcement officers, immigration officials,- international and regional instruments”.21 17 Suchtion which instruments is “firmly include enshrined those in allentered major sations in identifying trafficked and poten into by the members of ASEAN, such as the tiallyIn addition trafficked to being persons. recognised as a transna- ASEAN Declaration of Human Rights, which includes the principles of equality and non- discrimination as “General Principles”.22 ational form crimeof discrimination. in the UN Trafficking Article 6 of Protocol, CEDAW trafficking has also widely been recognised as Perhaps the most expansive recent assess- all appropriate measures, including legisla- ment of the relationship between inequal- specifically requires states parties to “take and exploitation of prostitution of women”. took place in October 2012 at the Organiza- Thetion, CoEDAWto suppress expands all forms on of this traffic obligation in women in tionity, discriminationfor Security and andCo-operation human traffickingin Europe General Recommendation 19, in which it (OSCE)’s 12th High-level Alliance against Trafficking in Persons conference entitled based violence which is therefore “a form of “An Agenda for Prevention of Human Traf- discriminationcategorises trafficking that seriously as a form inhibits of gender- wom- - en’s ability to enjoy rights and freedoms on ment”.23 The concept note drafted in advance a basis of equality with men”. As such, states ficking:of the event Non-Discrimination (the OSCE Concept and Note) Empower24 pro- parties are recommended to take a range of vides a very enlightening description of the actions, including taking “appropriate and inextricable relationship between the rights effective measures to overcome all forms of to equality and non-discrimination and the

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challenges of protecting individuals from hu- 30 This is evidenced, not least, by the fact that it is a protocol to the UN Conven- equality concepts in the OSCE Action Plan to tiontrafficking. against Transnational Organized Crime man trafficking. It points to the centrality25 and of rather than being associated with the cor- sets out how Combat Trafficking in Human Beings, “[T]he conference aims to pave the way Protocolpus of UN as human a “crime”, rights and treaties. the scope Trafficking of the - protocolis referred is limitedto throughout in Article the 4 UNto: Trafficking ing in human beings and various aspects toof betterdiscrimination, identify linkagesand to explore between how traffick anti- “[T]he prevention, investigation and prosecution of the offences established in can enhance each other”.26 accordance with article 5 of this Protocol, trafficking and anti-discrimination measures where those offences are transnational in In his opening speech, the OSCE Secretary- nature and involve an organized criminal General Lamberto Zannier elaborated fur- group, as well as to the protection of victims ther on the issue, as follows: of such offences”.

“Discrimination creates social vulnerabilities that can lead to victimisation and - nalisation,The first substantive under Article obligation 5, and identifiedthe focus inof occurs in the course of the migration pro- the UNprovision Trafficking relating Protocol to protection is that of ofcrimi vic- cess,trafficking. discrimination Let me add also that, hampers when trafficking the iden- tims relates to their involvement in legal proceedings.31 Further, the obligation to repatriate victims, under Article 8, is stated to victimstification in and countries therefore of thedestination, due assistance, espe- be subject to due regard “for the status of any ciallyprotection when andmigrants reintegration do not have of trafficking a regular legal proceedings related to the fact that the status. We have to admit that discrimination 32 and exploitation of the most vulnerable and the least protected often go hand in hand in person is a victim of trafficking”. our societies. Truly, measures to eradicate - tion.At no Buried point does in Article the UN 9(4) Trafficking of the UNProtocol Traf- anti-discriminatory policies are placed high- refer to trafficking as a human rights viola- erhuman up in trafficking the hierarchy will of be state more priorities.” successful27 if activitiesficking Protocol, masterminded however, by there transnational is a sugges or- Despite wide acknowledgement of these ganisedtion that crime trafficking syndicates. may involve It requires more states than - parties to: - equality-relateddress these features features in any of meaningful human traffick way. “[T]ake or strengthen measures, includ- Whilsting, the it UNdoes Trafficking require the Protocol development fails to of ad a ing through bilateral or multilateral coop- - eration, to alleviate the factors that make ing,28 and it obliges states to take a range of persons, especially women and children, vul- system of protection for “victims” of traffick29 the - - development and lack of equal opportunity”. lyactions on a incriminal order tojustice prevent response trafficking, to human Further,nerable toin trafficking,Article 14(2), such it asstates poverty, that: under focus of the UN Trafficking Protocol is entire

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“The measures set forth in this Proto- tic work sector globally, with 83% of all do- col shall be interpreted and applied in a way mestic workers being women.33 It also states that is not discriminatory to persons on the that for Asian women, domestic work is one of the most important sources of employ- persons. The interpretation and application ment beyond the borders of their countries ofground those that measures they are shall victims be consistentof trafficking with in of origin, and refers to the “genderisation of internationally recognized principles of non- discrimination.” men migrate to work in the construction sector,migration whilst flows”, women in accordance migrate into with domestic which By focussing on lack of equal opportunity work.34 In summary, it suggests that: and the non-discriminatory application of its - “An almost universal feature is that do- tocol fails to acknowledge the perhaps more mestic work is predominantly carried out by concerningprovisions, however,social inequalities the UN Trafficking and proactive Pro women, many of whom are migrants or mem- laws, policies and practices of discrimina- bers of historically disadvantaged groups. tion which arguably play a role as one of the is carried out in private homes, means that - theyThe nature are less of visible their work, than whichother workersby definition and cancecauses of of such human factors, trafficking and other before elements the need of are vulnerable to abusive practices.”35 inequalityto apply its provisionsand discrimination arises. It is theassociated signifi - Further, the OSCE Concept Note summarises cle seeks to shed increased light on, examin- the intersectionality of the experience of ingwith whether the issue the of eradicationtrafficking, ofwhich these this factors arti - follows: forts. those trafficked into domestic servitude as should play a key role in anti-trafficking ef “[A]n intersectional approach to traf- Specific Nature of Trafficking into Domes- - tic Servitude tude would thus examine the intersection officking a worker’s for the complex purposes identity of domestic as female, servi - foreign national, migrant worker, poor and - of low social status; and how that particular ticThis work analysis sector. focuses Whilst on it theis recognised specific manifes that all constellation of vulnerability may relate to a tation of human trafficking within the domes broad spectrum of laws and policies (such as employment, citizenship, and policies relat- forms of human trafficking – both the often ing to gender-based violence).”36 characteristicsprioritised sex traffickingof inequality and and the discrimina frequently- misunderstood labour trafficking – feature - particular interest given that it features the - intersectionalitytion, trafficking into of several domestic potential servitude sources is of Before turning to examine the specific char of disadvantage, including gender, national- elaborateacteristics further of trafficking on what into exactly domestic this form ser ity, immigration status and economic status. vitude in Singapore, this section will first- A recent report published by the Interna- tional Labour Organization has commented somewhatof trafficking controversial, looks like. Thewith issuepolitical of trafwill on the highly feminised nature of the domes- oftenficking pitched into domestic against theservitude eradication has become of such

The Equal Rights Review, Vol. Ten (2013) 38

violations of the rights of FDWs due to the Rapporteur on contemporary forms of slav- implications for voting employers. Irrespec- ery, including its causes and consequences - tive of this, there is a growing consensus in- Gulnara Shahinian - addressed “the manifes- ternationally on the existence of this particu- tations and causes of domestic servitude”.40 She noted that:

Thelar form ILO ofConvention trafficking. No. 189 concerning De- cent Work for Domestic Workers (ILO Do- domestic workers particularly vulnerable to mestic Workers Convention) acknowledges economic “[T]he exploitation, specificities abuse of the and, sector in extreme make the particular vulnerabilities of domestic cases, subjugation to domestic servitude and workers, noting in its Preamble that: domestic slavery”.

“[D]omestic work continues to be un- - dervalued and invisible and is mainly carried out by women and girls, many of whom which She proceeded “usually takesto highlight place under the specific the cover na are migrants or members of disadvantaged ofture activities of trafficking that seem into legal domestic or enjoy servitude wide- communities and who are particularly vul- spread social acceptance”.41 Unlike other nerable to discrimination in respect of conditions of employment and of work, and to are commonly perpetrated by organised other abuses of human rights”.37 manifestations of human trafficking which

In addition to recognition of the vulnerability bytransnational the results crimeof this syndicates,study) carried trafficking out by of domestic workers to discrimination, there seeminglyinto domestic innocent servitude members is (as of is society confirmed conducting their day-to-day activities as an em- - ployment agent, or exercising their right to tichas servitude. also been General specific Recommendation acknowledgement 19 of employ somebody to assist with household CoEDAWtheir vulnerability states that to “thetrafficking recruitment into domes of do- tasks as an employer. Such “perpetrators” of mestic labour from developing countries to work in developed countries” is a new form 38 and its General Recommenda- Shahiniantrafficking helpfullywill often explained not realise that: that they are tion 26 on Women Migrant Workers analyses complicit in the trafficking process. Gulnara of trafficking, - “Agents recruiting domestic workers be- nation, often based on “gendered notions of - appropriatein some detail work the specificfor women” forms and of discrimiresult in erately deceive their clients about the condi- women migrant workers being employed in tionscome perpetratorsof work or engage of trafficking in illegal if they practices delib the “informal sector” which includes domes- of control (such as the withholding of pass- tic work and which is often excluded from ports), while knowing that such practices will labour law protections.39 result in the exploitation of their recruits.”42

International authorities – including the UN Similarly, FDWs themselves will willingly Special Rapporteurs on Contemporary Slav- engage in the process, despite potentially de- ceptive and coercive behaviours on the part of their agents and employers, given their whilstery and also on Trafficking recognising – haveits unique acknowledged charac- goal of earning money to remit to their fami- teristics.the existence In her of2010 this report, form the of trafficking,UN Special lies back home.

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The Polaris Project, the home of the National and recruitment fees. The domestic worker is then expected to work off this debt (…) United States, has emphasised the role of They cannot leave their position before they employersHuman Trafficking stating that: Resource Centre in the have worked off their recruitment debt. With salaries being often as low as US$100- 300 per month, this means that migrant the employer uses force, fraud and/or co- domestic workers become bonded for long ercion “[A] to situation maintain becomes control overtrafficking the worker when periods to a single employer, making them and to cause the worker to believe that he or easily exploitable.”46 she has no other choice but to continue with the work.”43 refers to other coercive practices which keep Various human rights reports have sought to FDWsThe UN in Speciala situation Rapporteur of exploitation, on Trafficking includ-

They generally focus on deception and co- salary, isolation and restriction of freedom of describeercion as trafficking the “means” into used domestic to carry servitude. out the movement,ing confiscation lack of accesspassport, to meanswithholding of com of- munication and physical and psychological of deception, the role of recruitment agents violence.47 According to Anti-Slavery Inter- intrafficking deceiving “action”. migrants When in relationlooking toat thekey useas- national, the exploitation faced by FDWs who pects of their contract and the use of con- - tract substitution as a means of formalising tion of unacceptable working and living con- such deception have been emphasised.44 In ditions.have been It traffickedhas described results the from relevant a combina working conditions as: into domestic servitude in Lebanon, the UN describing the manifestation of trafficking deception regarding employment condi- resulting in the worker essentially being at tionsSpecial at Rapporteurthe time of recruitmenton Trafficking and described contract the(i) employer’sWide-ranging disposal; yet non-defined duties, substitution, often “concluded in a situation (ii) Long working hours, with some women characterised by deception and duress”.45 being on duty 24 hours each day; (iii) Inappropriate work management tech- The role of different forms of coercion has niques, including the use of verbal violence and restriction on freedom of movement; bondage arising from the waiving of an up- (iv) Non-payment, low payment or with- frontalso receivedfee by the significant recruitment coverage. agency which Debt holding of wages. then collects repayment through salary deductions is a key example. The UN Special It has described the relevant living condi- Rapporteur on Contemporary Forms of Slav- tions as follows: ery describes this as follows: (i) Accommodation which lacks both com- “‘Neo-bondage’ may also emerge in the fort and privacy; context of migration for domestic work. Mi- (ii) Inadequate food; grant domestic workers will often assume a (iii) Limited or no access to health care; and considerable debt towards the employer or (iv) Restrictions on social life and cultural the agency organising her recruitment and habits, often resulting from restrictions on transport to cover the cost of the air ticket movement which are intended, inter alia, to

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prevent the domestic worker from building relationships which may cause problems (e.g. in applying the “standard” criminal justice pregnancy) for the employer to resolve.48 responseand discrimination, as the primary but alsomeans in ofthe combating difficulty its existence. One of the main obstacles to the development of effective law and policy to prevent 3. Trafficking into Domestic Servitude in - Singapore mestic servitude is the on-going problem and protect victims of trafficking into do The domestic work sector in Singapore pro- Arab Emirates, the UN Special Rapporteur vides a helpful example upon which to base an of identification. In a report on the United assessment of the potential role of an equal- and Children, commented on the prevalence ity and discrimination focussed approach on Trafficking in Persons, especially Women- - - advantage and vulnerability faced by those of trafficking of women into domestic servi to trafficking due to the multiplicity of dis- fortude, labour noting exploitation that “the identificationstill remains non-ex of vic- gapore affects primarily non-Singaporeans istenttims, especially and problematic” domestic and workers urging trafficked the UAE whoworking have within travelled it. Human to the city-state, trafficking whether in Sin - willingly or not, to seek employment, and - tation,government domestic “to expand servitude the definitionas well as of other traf foreign domestic workers in domestic ser- ficking, to explicitly 49 include Similarly, labour in recogni exploi- vitude,this study given focusses that there solely are onvery trafficking few, if any, of tion that there have been “very few prosecu- Singaporean live-in domestic workers in Sin- forms of trafficking”. - gapore. Further, all foreign domestic workers man beings for labour exploitation in most in Singapore are female by virtue of the work OSCEtions participating and convictions States”, for traffickinghighlighting in that: hu permit requirements.54 An assessment of the legally-based inequality and discrimination “[T]he main legal challenge is rooted in encountered by foreign domestic workers is elaborated further in Sections 4 and 5 below, judiciary to differentiate between situations but, by way of an introduction to the issue, it wherethe difficulty there is forexploitation law enforcement in violation and of the is notable that unlike all other migrant work- labour law (…) and situations where a per- ers, foreign domestic workers are excluded from Singapore’s Employment Act, protected labour exploitation.”50 only by the less rigorous requirements of son has been trafficked for the purpose of the Employment of Foreign Manpower Act There have, however, been some recently and its secondary legislation, and subject to other requirements – particularly in relation for domestic servitude have been prosecuted to pregnancy – which enhance their vulner- reported cases in which cases of trafficking ability. The US Department of State has high- in Israel,51 the United States52 and Malaysia.53 lighted the particular vulnerability of domes- under anti-trafficking legislation, including tic workers to forced labour situations, due to the long-standing lack of a mandatory day therefore been acknowledged in the inter- off provided under Singaporean law,55 and Trafficking into domestic servitude has presents unique challenges, due to both its foreign domestic workers live have been ref- basisnational in fundamentalforum as a form problems of trafficking of inequality which erencedthe trafficking-like in academic conditions literature. in56 which The results many

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of the HOME FDW Study add further detail to process. These women were deceived re- - garding key aspects of their prospective em- tude painted by the US TIP Report. ployment and thereby tricked into entering the picture of trafficking into domestic servi into an arrangement which would ultimately Between March and July 2012, 151 FDW resi- result in their exploitation. The forms of de- dents of the HOME shelter (from the Philip- ception experienced related to: pines (84.1%), Indonesia (10.6%), Myanmar (4.6%) and India (0.7%)) were interviewed (i) Nature of the job, location or employer in order to determine the extent to which (34.4%); in Human Beings (the ILO Indicators)57 were (ii) Conditions of work, including working presentthe ILO inOperational each case. 58Indicators An overview of Trafficking of the re- hours and number of rest days (31.8%); sults demonstrates that for 149 of the women - (iii) Content of work contract (51.7%); interviewed,purpose – were all present.three elements 149 of the of the151 defini wom- (iv) Housing and living conditions (1.3%); and ention were of human held in trafficking situations –of action, exploitation, means with and 150 women subjected to coercive practices to (v) Wages and earnings (40.4%). keep them in such situations. 54 women were deceived during the recruitment process and The main method by which such deception the vulnerability of 54 women was abused by was carried out was through contract sub- their recruiters in order to lure them into situ- stitution. 61.6% of the women interviewed ations of exploitation. signed a contract in their country of origin which was subsequently substituted with a 3.1 Recruitment replacement contract upon arrival in Singa- pore. Of those substituted contracts, 91.4% The recruitment of FDWs to travel for em- were on less favourable terms. ployment in Singapore was the key “action” which took place in relation to all of the wom- Abuse of Vulnerability en interviewed. For the majority, the recruitment was accompanied by transportation According to the ILO Indicators calculation, from their country of origin to Singapore. Al- 54 (35.8%) of the women interviewed were most all of the women (97.4%) engaged the subject to abuse of vulnerability during the services of employment agents during the recruitment process. In several cases, such recruitment process. The analysis of the in- abuse played a role in allowing the decep- terviews demonstrated prevalent patterns of tion described above to take place. This is deception and abuse of vulnerability during particularly the case where the lack of edu- the recruitment phase. cation of the women, and particularly the lack of understanding of the contracts which Deception they read due to language and/or the complexity of the terms, prevented them from According to the ILO Indicators calculation, understanding what they were signing up to, 54 (35.8%) of the women interviewed dem- or where a lack of information provided by - the agent or recruiter prevented them from tively for deception during the recruitment realising that they were being deceived. The onstrated sufficient indicators to test posi

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- domestic workers travelling from their coun- - pactedvulnerability on the ofrecruitment recruits arising process, from and finan their willingnesscial difficulty to and accept family employment problems arrangealso im- Coerciontry to Singapore, may result in trafficking. ments with limited understanding of the terms and conditions. In a total of 62 cases (41.1%), coercion was present in one or more ways during the re- The interview analysis showed that the fol- cruitment phase. These 62 women were (i) lowing vulnerabilities of the interviewees placed in agency accommodation, in which were abused during the recruitment process: control over their lives was essentially surren- dered to the agents responsible for their re- i) Lack of education, preventing under- cruitment (14 women, 22.6%); (ii) subjected standing of the language and/or complexity to undue pressure at the time of entering into of the employment contract (11.9%); the contractual arrangements which would govern their employment in Singapore (35 ii) Lack of information, preventing the women, 56.5%); or (iii) forced to relinquish woman from being fully aware of the situa- possession of their identity documents to tion she is entering into (88.7%) (examples their employment agent prior to deployment include being prevented from reading the (33 women, 53.2%). Each of these actions employment contract prior to signing it and diminishes the control which the FDW has not being given any terms or conditions of over her situation and the ability to make free employment prior to travel to Singapore); choices at each stage of the process.

iii) Financial vulnerability, in which the The presence of inequality is again notable in the patterns of coercive recruitment found including being the sole breadwinner for the in the cases of the FDWs interviewed, this family,women beingfaced particularheavily indebted financial prior difficulties, to re- time in the relationship between the FDW cruitment and being encumbered with high and her recruiter and/or employment agent. medical fees for family members, which ren- The imbalance of power in this relationship, dered them vulnerable to abuse on recruit- founded ultimately on the fact that the latter ment (66.2%); and has exactly what the former needs in order

- a job for her. ily dependence on their earnings, abusive to fulfil her aims – i.e. the ability to arrange familyiv) Difficult set-ups family and family situation, ill-health including (39%). fam 3.2 Employment

The connection between the “abuse of vul- It is upon arrival into Singapore and com- - mencement of employment at the homes of nition, as found in the cases of the women their employers that coercive practices are interviewed,nerability” element and the of underlying the trafficking factor defi of commonly used in order to keep FDWs in an systemic inequality between developing and exploitative situation of forced labour or ser- developed countries acting both as a “push” vitude. The nature of the exploitation which and a “pull” factor in the process of female 149 (98.7%) of the women interviewed ex- migration for employment, in the cases of perienced was varied, yet for many, touched

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upon all aspects of their lives including both v) Hazardous work, including being forced their working and living conditions. The ILO to clean the outside of windows on high sto- Convention on Forced or Compulsory Labour reys without any safety precautions being taken (20.5%);61 which is exacted from any person under the menacedefines “forced of any penalty labour” and as “all for work which or the service said vi) Low or no salary – Given that there is no person has not offered himself voluntarily”. minimum wage in Singapore, the measure for this indicator was taken to be the minimum - wage set out in the Philippines standard form Thevitude’ UNODC shall Model mean Lawthe labouragainst conditionsTrafficking orin contract for its overseas domestic workers Personsthe obligations defines to “servitude” work or to as render follows: services “‘Ser of US$400 per month, of which 98.7% of the from which the person in question cannot women interviewed earned below; escape and which he or she cannot change”. It is the element of coercion and the result- vii) No respect of contract signed (59.6%). ing lack of choice which turns a situation in which an individual is exploited through vio- Coercion lation of their labour rights into one of forced labour or domestic servitude, and therefore According to the ILO Indicators calculation, these sets of indicators are here examined 150 women were subjected to coercion as alongside each other. a means of keeping them in the situation of exploitation they found themselves in upon Exploitation deployment in Singapore. Such coercive practices are implemented by employment As stated above, 149 of the women inter- agents and/or employers, primarily to en- viewed had been subjected to varying forms of exploitation during their employment in of the recruitment debt, through salary de- Singapore. The different forms of exploita- ductions,sure in the is first made instances in full. thatIn Singapore, the repayment mar- tion are as follows: ket practice dictates that it is the FDW herself who bears the cost of her deployment, i) Excessive working days (96.7%);59 including not only the transportation and administration costs involved in bringing ii) Excessive working hours (96%);60 her from her country of origin to Singapore, but also the fees of the employment agents iii) Very bad working conditions, including (both in the country of origin and in Singa- being forced to give massages to employer pore) who assist in making all the necessary and/or his family and being forced to work arrangements. Given that many potential illegally in multiple locations (36.4%); FDWs are not in a position to pay such costs upfront, the process is “facilitated” through iv) Bad living conditions, including being a practice of salary deductions, whereby the given insufficient or inadequate food, or FDW receives no salary for a certain num- being forced to accept inappropriate sleep- ber of months whilst her recruitment debt ing arrangements (due to lack of private is repaid. Of the 151 women interviewed, space or being forced to share with adults 96.7% reported incurring debt through their and/or children) (47%); recruitment process which resulted in them

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being placed in a situation of debt bondage vi) Withholding money: 33.1%. during their deployment in Singapore. The average number of months of debt incurred An assessment of the key indicators of traf- by these women was 6.9 months of salary, with the largest number incurring seven through the HOME FDW Study highlights months of debt. someficking of intothe challenges domestic servitudein adopting identified a solely criminal justice response to this form of traf- The imposition of such debt obligations upon FDWs is itself a means of coercion, as they are criminal acts in and of themselves, such as led to believe that they are not able to leave physicalficking. Someand sexual of the violence indicators62 and are wrongful clearly their employment prior to complete repay- 63 Others – such as illegal de- ment of the debt, but it also results in further ployment, withholding salary and hazardous coercive behaviours being used by agents confinement.work – are violations of the Work Passes Reg- and employers in order to ensure that the ulations 2012 which govern the employment FDW meets those obligations. The patterns of conditions of FDWs.64 So long as individual - indicators can be characterised as violations terviews did not all involve the use of physical of law in their own right, they tend to be forcecoercive in order behaviour to “force” identified women through to work, the but in - picture is missed. A further problem is that ence in order to create in her the belief that manytreated of as the such actions and thereferred bigger to “trafficking” would not sherather has the no use choice of more but subtleto continue means toof influwork necessarily be viewed as criminal in nature despite the exploitative conditions, if only to and as such are very easily missed as indica- ensure that she earns money at some point in - the future and avoids any negative repercus- cators – including excessive working hours sions for her and her family. andtors workingof trafficking. days, Further,contract many substitution of the indi and - Such patterns include: ited by law, and as such are viewed as lawful andconfiscation acceptable of handphonesmeans by which – are employment not prohib i) Physical violence, including sexual abuse: agents and employers can manage their rela- 23.8%; tionship with FDWs.

ii) Verbal abuse: 75.5%; 4. The Response of the Singapore Government

- In addition to recognising the vulnerability cluding passport and work permit: 96%; of FDWs in Singapore to forced labour in its iii) Confiscation of identity documents, in 2012 report, the US Department of State also pointed out the inadequacy of the response including restrictions on communication with - othersiv) Isolation, by phone confinement or in person, and restrictions surveillance, on ing. It states that during the relevant period, freedom of movement and being subject to of the government to such forms of traffick CCTV surveillance at all times: 62.3%; offenders, but no prosecutions or convic- there were four convictions of sex trafficking65 The v) Use of threats, including threatening to inadequacy of the government’s response report to the police, repatriate and blacklist tions of labour trafficking offenders. to prevent future employment: 23.1%; and FDW Study. was also reflected in the results of the HOME

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Based on the information collected from the women interviewed as part of the HOME indicate the need for further investigations FDW Study, the actions being taken by the toficking be carried has taken out.66 place, Of the their 151 womenpresence inter will- Singapore government to combat this form viewed, 77 (51%) had their cases referred - to the authorities. 59 of them (76.6%) were jority of the women (62.9%) sought assis- referred to MOM, 11 (14.3%) were referred oftance trafficking from HOME, are not a non-governmental encouraging. The maor- to the police and seven were referred to both ganisation, rather than utilising the avenues MOM and the police. None of these women of assistance provided by the Ministry of were flagged by the government officials Manpower (MOM). Several women referred who reviewed their cases as potential to being afraid of approaching the authori- trafficked persons. It is notable, however, ties, whilst others said that they were unable that the experience of HOME caseworkers to make contact through the helpline due to demonstrates that the outcomes of MOM - and police investigations are, in many cas- cated by their employers and/or an inabil- es, not reported to the FDW herself, other having had the relevant information confis than if the outcome affects her directly such of their handphones. Of the seven women as the payment of salary which is owed to whoity to did make approach phone callsMOM due for toassistance, confiscation ei- her. This lack of transparency prevents the ther via the helpline or in person, three re- FDW from knowing whether any punish- ported being unable to speak to anyone via ment has been meted out to the employer the helpline as there was no answer and and prevents civil society organisations like another three women were advised by the HOME from monitoring the response of the - discuss their “problem” with their employer. TheMOM “problems” officer they in spoke question to on included the phone illegal to authorities to the cases of trafficked and po - Thetentially results trafficked of the HOMEpersons. FDW Study there- ing locked in the house. Eight women sought fore strongly suggest that the accessibility of thedeployment, assistance passport of the police. confiscation Four of and these be direct forms of government assistance ap- had positive experiences in which their com- pears to be lacking for victims and potential plaints were taken seriously and they were referred to the HOME shelter for accom- to CEDAW, a form of discrimination). This is a modation. Three women, however, were re- notablevictims offailure trafficking to comply (which with is also, international according turned to their agency and one to their employer against their wishes. the Declaration of Principles on Equality, requireequality that standards, “[p]ersons which, who as have confirmed been sub in- Analysis was also conducted of the role jected to discrimination have a right to seek played by the authorities in assisting with legal redress and an effective remedy”.67 case resolution and whether any action was This is not, however, for lack of efforts being indicators in the cases of the individuals in made by the state to address the issue of traf- question.taken based In the on introduction the presence to of its trafficking own list - NPA in March 2012, the Taskforce committed itselfficking to in a Singapore.three-year Withplan based the launch on the of UN its theof human presence trafficking or absence indicators, of any theof its UN indi Of- catorsfice on willDrugs not and prove Crime or disprove states that that whilst traf- The lack of subsequent progress in relation Trafficking Protocol’s criminal justice model.

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due, in part, to the lack of any notable action some of the less clear terms – such as “decep- havingto the protection been taken of by FDWs the Taskforcefrom trafficking in com is- tion”,trafficking “coercion” into domestic and “abuse servitude of vulnerability” in which pliance with the NPA. It is also, however, in- – are all-important. Whilst sets of indicators, dicative of the inherent inadequacy of a focus such as the ILO Operational Indicators used solely on criminal justice responses to ad- in the analysis undertaken as part of the HOME FDW Study, provide valuable assis- - dressing trafficking into domestic servitude. - Protocol’s criminal justice response to traf- alised,tance in the understanding decision remains how thewith UN individual Traffick The main inadequacies of the UN Trafficking statesing Protocol as to what definition indicators becomes they operationwill adopt whilst setting out a system which includes - theficking different are summarised elements of as prosecution, follows. Firstly, pro- ence can be seen, for example, between the ILOto assist Operational in identification. Indicators A and notable the indica differ- Protocol does not actually require that a tors adopted by the US Government which comprehensivetection and prevention, system must the be UN put Trafficking in place are far narrower in scope and, as such, may - not capture all cases that would be caught by the ILO Operational Indicators.70 As stated ASEANthrough jurisdictions, the enactment including of specific Malaysia anti-traf and above, one of the key challenges in relation theficking Philippines). legislation Such (as canlegislation be found is arguablyin other into domestic servitude is the challenge of does not get ignored by legislatures in favour to combating trafficking of domestic workers a key way to ensure that labour trafficking- weaknessidentification. of this The regime lack of which guidance requires provided sup- Inof athe focus NPA, on the sex Taskforce trafficking does which not iscommit argu plementation.within the UN TraffickingIn a recent Protocolspeech to is theanother con- toably enacting easier toa define,single all-encompassingidentify and prosecute. piece ference held by the OSCE Alliance against of legislation, but rather suggests that it will - resentative and Co-ordinator for Combating well as related offences within existing legis- Trafficking in Persons, the OSCE Special Rep lation”,“define68 sex and and proposes labour trafficking to “review offences, all legisla as- Giammarinaro, described such failure to tion related to TIP to ensure that the desired Trafficking in Human Beings, Maria Grazia legislative framework facilitate the achieve- example of discrimination: ment of key TIP objectives”, and “to ensure identify all forms of trafficking as a further that Singapore’s legislation adequately ad- “We are confronted every day with the dresses the complexity of TIP crimes and that fact that, in practice, many cases in which penalties are commensurate with crimes”. 69 Such proposals are far from the preferred - ingthere hours, are no clear salary indications and even of injuries trafficking as a approach which is favoured. consequence– confiscated of documents, physical punishment excessive – work even “comprehensive anti-trafficking legislation” - ousthese crimes. cases veryOne of often the arereasons not classifiedbehind this as whichSecondly, is, inas relation stated above, to some the of UN its Traffickingkey terms, shockingtrafficking situation cases butis that treated very often as less the com seri- opaqueProtocol and provides not user-friendly. a definition ofThis trafficking is par- petent authorities fail to grasp the gravity of ticularly notable when dealing with cases of the exploitation involved. Well, when we dig

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and try to better understand and analyse the in the international community’s response to the issue. It also likely means that even if other factors, discrimination. We discover, compliance with international human traf- reasons for this “blindness”, we find, among- struction of the migrant as the “other”, and offor “otherness”example, how as influential “inferiority” the culturalis, although con Asficking a result, law we continues need to rethink to improve, our approach human it mostly works in a subtle and hidden way. totrafficking the problem is unlikely and toredesign decline international significantly. law’s response.”72 form of discrimination and racism. The same constructionsThe same constructions were once usedare reflected to validate in andany Todres proceeds to explain how the “an- justify historical slavery.”71 choring” phenomenon – through which “an - Thirdly, and perhaps most importantly, the - - encesinitial andstep shapes(such asthe a subsequentfirst offer in course negotia of ing is problematic due to the fact that it ad- tions), whatever it may be, significantly influ criminal justice response to human traffick- remainder of the negotiation and settlement tion, without acknowledging the frequently amountaction and agreed final outcomesto by the (forparties)” example,73 – canthe systemicdresses the factors problem that lie of traffickingbehind it, and in isola out- be used to explain how the “initial framing with the criminal responsibility of transnational organised syndicates. It treats the traf- has limited the range of options considered of human trafficking as a criminal law issue than identifying the multifarious elements laws and programs”.74 ficking process as a singular crime, rather when seeking to develop anti-trafficking each of which should also be addressed. Jonathanwhich contribute Todres hasto arecently finding describedof trafficking, the form of discrimination, against which states fundamental problem in the framing of the suchIt is hereas Singapore that we return are obliged to trafficking to take as“all a appropriate measures” (not only criminalisation) in order to achieve its eradication. UN Trafficking“A central Protocolfailing in approach international as follows: law’s States should, but too often do not, combine the criminal justice response with a broader legislative and policy review which identi- grewresponse out ofto a human criminal trafficking law framework has occurred rooted primarilyat the design in concernstage. The for Trafficking combating Protocol transnational organised crime syndicates rather sectionfies areas of thisof discrimination article endeavours and todeficiency provide than an independent assessment of what anwhich initial enable road the map crime for Singapore to flourish. as The to what final such a broader legislative and policy review a result, the international community not might address. onlyis needed developed to prevent a narrow human response trafficking. focused As primarily on criminal law measures, but its 5. A Broader Approach law concepts subsequently served to mar- The above assessment of the weaknesses ginalizeanchoring other of anti-trafficking vital perspectives. law Thisin criminal failure of the criminal justice approach to ad- to draw upon a broad range of perspectives dressing trafficking into domestic servi- to address the root causes of human traf- tude demonstrates the need for the Singa- pore government to take additional steps ficking underlies many of the shortcomings

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to address the issue of trafficking into do- 5.1 Improve Protection of the Right to mestic servitude. In compliance with its Equality and Non-Discrimination for Non- general obligation under CEDAW to “pur- Citizens sue by all appropriate means” a policy of eliminating discrimination against women, Whilst Part IV (Fundamental Liberties) of the and its specific obligation under Article 6 Singapore Constitution protects the rights to to “suppress all forms of traffic in women”, equality and non-discrimination, such pro- Singapore should review all laws which im- tection is notably limited, particularly for pact on the recruitment, employment and non-citizens. Article 12(1) sets out the right immigration status of domestic workers in to equality before the law and equal protec- order to eradicate any provisions or poli- tion of the law for all persons, whilst Article cies which make them vulnerable to the 12(2) prohibits discrimination against only crime of trafficking, or the individual ele- citizens, on a very limited list of prohibited ments (or indicators) which contribute to grounds (i.e. religion, race, descent or place the crime. Further, in his opening speech to of birth).77 Whilst foreign domestic workers the conference of the OSCE Alliance against are excluded from the constitutional protec- Trafficking in Persons in October 2012, tion from discrimination due to their nationality, and whilst certain features of their vul- for Democratic Institutions and Human nerability – e.g. gender – are not recognised RightsJanez Lenarčič, (ODIHR) Directoradvised asof follows:the OSCE Office as a prohibited ground of discrimination, it is arguable that efforts to combat human traf- “Being aware of the alarming impact - of discrimination on the prevalence of traf- crimination – will be ineffective. Further, as commentedficking – a particularly upon by the heinous CoEDAW form in its of latest dis convinced of the need to combat all forms Concluding Observations on Singapore,78 Sin- officking discrimination of women, menbased and on children, race, ethnicity, we are gapore has yet to domesticate its obligations gender, disability, social and other status under CEDAW into national legislation. The as part of an effective response to human enactment of comprehensive anti-discrimination legislation which provides protection for all persons within Singapore across a whentrafficking. participating The vulnerability States fail ofto potentialprovide broad range of prohibited grounds, including forvictims basic of social trafficking and economic is further rights aggravated to all – sex, nationality and economic status, will al- without discrimination.”75 most certainly improve the situation for foreign domestic workers and reduce the risk of Principle 11 of The Declaration of Princi- ples on Equality requires states, inter alia, It is notable that anti-discrimination legisla- to “[t]ake all appropriate measures, includ- tionthem in becoming the US – andsubject particularly to human the trafficking. Title VII ing legislation, to modify or abolish exist- of the Civil Rights Act of 1964, which prohib- ing laws, regulations, customs and prac- its discrimination in employment on the ba- tices that conflict or are incompatible with sis of race, colour, religion, sex, or national or- the right to equality”.76 This section sets igin, has been used by the Equal Employment out some of the key steps which Singapore could take in fulfilment of this requirement 79 The case setting the in relation to FDWs. precedentOpportunity was Commission Chellen and to EEOC significant v John Pickleeffect in trafficking cases.

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Company, Inc.,80 in which 52 unskilled Indian 84 labourers received $1.3 million in damages EFMA establishes the Work Pass regime ac- having been employed on terms and condi- specifically,cording to which the Work the employment Passes Regulations. of foreign tions far worse than those upon which their employees is governed. Far from being legis- US-born colleagues were employed. They lation which grants protection of the labour earned minimal amounts in salary and were rights of foreign employees, EFMA sets out forced to live in appalling conditions. David the rules according to which employment Lopez, General Counsel of the U.S. Equal Em- is permitted, the offences associated with ployment Opportunity Commission (EEOC), breach of such rules and the powers of ar- described this decision as “a key victory for rest and enforcement held by the authorities. - The Work Passes Regulations – enforced by - MOM – provide more concrete protections to crimination”the EEOC in which the fight will against“serve as human precedent traf FDWs as follows: forficking, bringing forced a civillabour, case and with employment civil remedies dis - i) prohibition of illegal deployment; ing of people”.81 ii) no retention of Work Permit and visit against employers involved with the traffick pass by employer; 5.2 Review and Amend Unequal and Dis- iii) acceptable living conditions, including criminatory Labour Laws adequate food, medical treatment and acceptable accommodation; A review of the labour law protections which iv) salary payments (method, rather than Singapore provides to FDWs is urgently re- amount); quired. Singapore labour laws do not ade- v) prohibition of ill-treatment; quately protect the rights of FDWs. There are vi) working conditions, including safe working environment, “adequate” daily rest, all workers in Singapore which impact on rest days in accordance with contract; thesignificant lives of gaps FDWs, in thesuch labour as the laws absence affecting of a vii) repatriation to international port of en- minimum wage in all categories of employ- try affording reasonable access to the em- ment. That said, there are protections which ployee’s hometown, and reasonable notice of are guaranteed to other workers which are such repatriation; and denied to domestic workers. All domestic viii) prohibition of causing employee to be workers, whether migrants or otherwise, engaged in illegal, immoral or undesirable are excluded from the Employment Act (Cap conduct or activity. 91), along with seamen and certain persons in managerial and executive positions.82 As a There are a number of notable exclusions from the list of protections, including a mini- range of protections including those relating mum wage and a maximum number of daily toresult, contract FDWs termination, are not able salary to benefit payment from (in a- working hours. Further, there are no guaran- cluding overtime), rest days, working hours, tees of freedom of association and collective annual leave, sick leave and maternity cover. bargaining for FDWs – in fact such freedom

The employment rights of FDWs in Singapore – and there are no protections of the right of are governed instead by the Employment of workersis specifically to live denied in accommodation under other legislation of their Foreign Manpower Act (EFMA)83 and, more choosing and to have freedom of movement.

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There are no social security protections for mits which is the “norm”, but for which pun- FDWs who become pregnant; instead they ishment is not often imposed. are repatriated given they are not entitled to be Work Permit holders whilst pregnant.85 In March 2012, Singapore’s Ministry of Man- power announced the introduction of a man- 86 datory weekly rest day for FDWs; a standard TheSimilarly, ILO Domestic FDWs who Workers are “certified Convention medically sets labour right which had previously been de- outunfit” the will blueprint have their for Work protections Permit revoked.which all nied to them. Whilst this was initially viewed FDWs should enjoy, and it is when compared by civil society and the domestic worker against this blueprint that the inadequacies community as a very positive step forward of the current Work Passes Regulations be- towards improved labour law protections for come apparent. FDWs, a closer analysis of the policy detail demonstrates that it may have little impact Vague language throughout the Work Passes on the lives of Singapore’s FDWs and also Regulations serves to reduce the impact of further entrenches the discrimination they the protections, such as the use of “adequate” regularly suffer. Despite being announced in relation to food and daily rest, “acceptable” in March, the policy did not come into effect in relation to accommodation, and “reason- until 1 January 2013 and even then only for able” in relation to access to the employee’s new contracts. FDW contracts usually have hometown and the notice of repatriation. a duration of two years, which means that Whilst the MOM website provides additional some FDWs will actually have to wait until 1 guidelines for employers which do expand January 2015 before this new protection will on these to a certain extent87 - such as sug- - gesting that “where possible”, FDWs should tion as to the number of hours which com- be given a separate room of their own - they priseapply ato weekly them. Further, rest day. there The is ILO no specificaDomestic remain very “soft” provisions, and when it Workers Convention states that a rest day comes to enforcement of such protections, should be 24 consecutive hours, but few the impact of these vague terms is notable. FDWs in Singapore enjoy such a luxury, with strict curfews frequently imposed on any off The experience of HOME’s caseworkers is day. Finally, the policy provides that FDWs that certain provisions of the Work Passes may be compensated in lieu of a weekly rest Regulations are not well-enforced. For exam- day provided she mutually agrees with her ple, the provisions preventing illegal deploy- employer to this option. The compensation ment are essentially waived where such de- is, however, to be calculated as the equiva- ployment is to the homes of family members, lent of one day of salary and is, as such, not such as the employer’s parents or siblings. equal to the compensation which all other The fact of such illegal deployment will have workers (including migrant workers who are equal impact on the experience of the FDW, not domestic workers) receive for overtime irrespective of the relationship between under the Employment Act. In addition, the the employer and the person to whom the suggestion that an FDW will be in a position FDW is illegally deployed and therefore such to meaningfully negotiate with her employer “bending of the rules” is problematic. A simi- regarding whether or not she actually takes lar lack of enforcement is seen in relation to her mandatory weekly rest day fails to ac- - knowledge the unequal bargaining power

the confiscation of passports and work per

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that exists as a result of the debt bondage creased action to regulate and monitor the activities of employment agencies. The re- arrival in Singapore.88 cruitment of FDWs by recruitment agents which many FDWs find themselves in upon in both the source country and in Singapore The situation in which foreign domestic is inadequately monitored by Singapore’s workers in Singapore, as in many other juris- existing legislation – the Employment Agen- cies Act (the EAA). Given that Singapore’s recently been referred to by Virginia Mantou- agencies work in partnership with agencies valoudictions as across “legislative the globe, precariousness”, find themselves89 duehas to their explicit exclusion from the Employ- the EAA only to govern the actions of agen- ment Act and the far lower level of protection ciesin source based countries,in Singapore. it isThe not governments sufficient for of which is provided to them under the Em- source countries – such as the Philippines ployment of Foreign Manpower Act. She has – monitor the actions of Singapore-based pointed to the landmark Advisory Opinion of agencies as part of their prevention mecha- the Inter-American Court of Human Rights nisms and Singapore should therefore do on “Juridical Condition and Rights of the Un- the same. Further, the terms of the EAA are documented Migrants”90 as having relevance inadequate to prevent the errant behaviours to the situation of foreign domestic workers of Singapore-based agents – including de- who, whilst not necessarily undocumented, ception, coercion, and abuse of vulnerability - the Opinion. As Mantouvalou explains: als into labour exploitation. may benefit from the reasoning provided in – which lead (and arguably traffic) individu “The IACtHR ruled that the exclusion of Whilst all Singapore-based employment undocumented migrants from labour rights agencies and their key personnel must be li- breached international principles of equal- censed under the provisions of the EAA, such ity before the law and non-discrimination, licences are usually granted for three-year which it recognised as norms of jus cogens. periods93 and there is no system for interim The Court emphasised that it would not be monitoring. Whilst employment agency in- lawful to deny labour rights once someone is spectors do have the authority to carry out in- already employed.”91 spections pursuant to Section 18 of the EAA, there is no system for proactive and regular 5.3 Enhance Regulation and Monitoring monitoring of agencies and therefore no real of Employment Agencies deterrent during the period of the licence for agencies to avoid suspect behaviour. Principle 11(g) of the Declaration of Princi- ples on Equality requires that states must Following a seemingly positive set of amendments passed in early 2011, the EAA now im- “[t]ake all appropriate measures to poses a limit for the fees which employment eliminate all forms of discrimination by any agents may charge to applicants,94 which person, or any public or private sector or- was further prescribed in the Employment ganisation”.92 As key players in the process Agencies Rules 2011 as one month salary per year of the contract,95 such limit is sub- domestic workers into domestic servitude, ject to notable exclusions including “any fee itwhich is submitted results inthat the Singapore trafficking must of take foreign in- charged or received by a licensee in respect

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of costs incurred by or on behalf of an appli- agencies in Singapore, and indeed their cant for employment outside Singapore”.96 counterparts in source countries, renders This therefore allows employment agents to FDWs vulnerable to deception, coercion add on top of the two-month permitted fee and exploitation from the moment they are any pre-deployment costs, such as transpor- recruited at the very outset of their migra- tation, training, medicals etc. with the result tion experience. that the “cost” incurred by FDWs becomes far higher than the limits imposed by the EAA. 5.4 Abolish Laws which Create a Fertile Ground for Discriminatory Practices The EAA is silent on the issue of employment contracts and the administration of such In addition to the provisions of the EAA, contracts – including the issue of contract EFMA and the Work Passes Regulations substitution. The deployment process does which, whether implemented effectively or require the issue of an In-Principle Approv- not, represent an attempt to protect the la- al letter to the employee prior to departure bour rights of migrant workers, there are a from the country of origin which sets out the number of legislative and policy provisions key terms of the contract, but this may not be which create a fertile ground in which traf- understood by the employee and also does not refer to all relevant terms – particularly - salary deductions. ersficking of FDWs indicators and (ii)flourish. the dependence These relate of to the (i) legalthe financial immigration burdens status imposed of the upon FDW employ upon Finally, the EAA provides no “code of con- their employer. duct” which governs the standard of service which agents must provide to the In addition to the salary which employers FDWs who are as much their clients as the pay to their FDWs, they are also saddled employers to whom they are deployed. In - fact, one might argue that given that it is the tion to the employer of said FDW. Firstly, FDW who pays the agent’s fee, they should employerswith two further are required financial to burdens post a securityin rela expect a better service than the employer! bond of $5000 with the government which There is therefore nothing which governs guarantees the upkeep and maintenance, the timing or nature of responses of agents provision of acceptable accommodation to problems encountered by employees and the repatriation of the FDW upon ter- during deployment, nor the requirements mination of employment and cancellation of of responding promptly to the wishes of the work permit.97 The potential cost of vio- the employee, e.g. when she wishes to ter- lating the terms of the security bond is used minate her employment and return home. Likewise, there is no responsibility im- grant rest days to their FDW, for imposing posed on licensed employment agents to restrictionsby employers on as their justification movement for and refusal for con to- investigate and/or report to the authorities behaviours by employers which are contra- - ry to the Work Passes Regulations. fiscating documents. The lack of rest days beand argued confinement that there to is the a direct home link are between both in The inadequate regulation by the Singa- thedicators requirement of trafficking of the and security therefore bond it could and pore government of private employment such coercive behaviours.

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In addition to posting a security bond, em- violated and are under investigation by either ployers must pay a monthly levy of up to MOM or the police, the FDW will be granted a $265 to the government throughout the pe- Special Pass to enable her to remain in Singa- riod of employment of a FDW.98 As a percent- pore whilst the issue is resolved. age of the average monthly salary paid to the FDWs interviewed as part of this study Neither the knowledge nor consent of the - FDW is required in order for the Work Per- al cost for the employer. It is likely that the mit to be cancelled, which means that she imposition– $409.73 – ofthis this levy levy is a significantrequirement addition serves may become an unlawful over-stayer with- to suppress the salary levels of FDWs, espe- out realising, the penalty for which is im- cially for employers who are not themselves prisonment and deportation. Further, it is high-earners. solely the prerogative of the employer as to whether he/she will permit the employee 5.5 Eradicate Sponsorship System which to transfer to another employer at the end Restricts Access to Justice of the contract or whether to comply with the obligation to repatriate under the Work Passes Regulations. The impact of this is relating to FDWs serve to encourage, albeit to add weight to the coercive threats of unintentionally,The final way in patterns which Singapore’s which violate policies the employers regarding repatriation prior to rights of such workers and promote indica- completion of loan repayment and the fear of FDWs of reporting cases of exploitation. immigration status of the FDW to their the Further, the requirement of prompt repa- willtors ofof thetrafficking employer. is throughThe immigration the tying statusof the triation upon cancellation of Work Permit of each foreign migrant worker in Singapore negatively impacts on the ability of the po- is wholly tied to the employment relationship - with the employer. In all cases other than tance and obtain redress. where an FDW is transferring from one em- tentially trafficked FDW to seek legal assis ployer to another within Singapore, the FDW This overview of some of the key inadequa- will enter Singapore on an entry visa con- cies of Singapore’s legislative framework tained within an In-Principle Approval letter from an equality and non-discrimination which sets out the name and address of their perspective demonstrates the urgent need employer. This letter will then be replaced for a thorough review of the laws governing the recruitment, immigration status and em- the same details. It is the Work Permit which ployment of FDWs in order to ensure that “all grantswith the the Work employee Permit the which right to also stay specifies in Sin- appropriate action” is being taken to combat gapore. When an employer terminates the employment contract of the FDW, they must with Singapore’s obligations under CEDAW cancel the Work Permit and visit pass within andtrafficking international into domestic equality servitude standards. in lineSo seven days. The FDW must then be repatri- long as such inadequacies remain, a criminal ated within a further seven days unless she justice response will be ineffective because a enters an employment contract with a new fertile ground has been created in which oth- employer within that period.99 In situations erwise law-abiding citizens become crimi- where the provisions of the Work Passes nals through simply complying with the leg- Regulations and/or the Penal Code have been islative regime in place.

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6. Conclusion - grant workers into domestic servitude as a complexever, characterising form of multiple trafficking discrimination of female mi on violation and a crime which takes multiple the grounds of sex, nationality, immigration formsHuman and trafficking presents isvery both complex a human challenges rights status and economic status expands the ex- for states caught in its clutches, both in send- tent of the obligations in terms of a response ing and receiving countries. As highlighted which governments must develop. Indeed, it most recently by the OSCE, factors of inequal- is envisaged that a similar assessment of oth- ity and discrimination play a central role in need for a broader approach. be taken fully into consideration by states er forms of trafficking will highlight a similar whenthe trafficking devising process responses and shouldto this thereforetransna- Activists have long-called for a human rights tional crime and human rights violation. This article has outlined some of the characteris- as an approach which places the “victim”, her rightsapproach and to her trafficking, needs at but the this centre is often of viewedany response. Whilst this is crucial, a human rights thetics legalof a particular framework form which of labourarguably trafficking contrib- approach must also involve going beyond a utes– trafficking to its existence, into domestic in order servitude to illustrate – andthe criminal justice response in order to identify need for an approach which goes beyond the all violations of rights, including the right to criminal justice response proposed in the equality and non-discrimination, which play Taskforce’s NPA and addresses comprehensively factors relating to the right to equality eradicate them from society through a thor- and non-discrimination. A strong criminal ougha role legislative in the trafficking review and process amendment and seek and to justice response, in relation to which severe a corresponding public education campaign punishments should certainly be imposed, which will, inevitably, be required in order to is undoubtedly an important feature of the eliminate the culturally entrenched practices - towards FDWs in countries such as Singapore.

response to all forms of trafficking. How

Organization Libby Clarke for Migration is a UK qualified Economics lawyer (HOME) and former in Singapore. Legal Officer HOME at is Thea non-governmental Equal Rights Trust. organisation From January and registered2012 to January charity 2013, which Libby is dedicated was a Senior to serving Consultant the needs to the of Anti-Trafficking the migrant worker Programme community at the in Humanitarian Singapore. It was established in 2004 and has since provided services to thousands of migrant workers in need through its provision of shelters, legal assistance, training and rehabilitative services. Roughly 60% of those assisted by HOME are foreign domestic workers. Further information about HOME’s work can be found at www.home.org.sg. The author wishes to acknowledge the contributions of Marijke Bohm, Lydia Bowden, Vermili Saucelo and Judy Sotelo as research assistants in the study upon which this article is based. 2 UN Committee on the Elimination of Discrimination Against Women, Concluding observations of the Committee on the Elimination of Discrimination against Women – Singapore, 10 August 2011, CEDAW/C/SGP/CO/4, Para 25. 3 US Department of State, Trafficking in Persons Report 2011, June 2011, p. 319; US Department of State, Trafficking in Persons Report 2012, June 2012, p. 308. 4 Persons, see: . For further information about the composition of the Singapore Inter-Agency Taskforce on Trafficking in http://app1.mcys.gov.sg/Policies/HelpingtheNeedy/SingaporeInterAgencyTaskforceonTrafficking.aspx

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5 See above, note 3. 6 National Plan of Action Against Trafficking in Persons, 2012-2015, March 2012, available at: http://app1.mcys.gov.sg/Portals/0/Topic/Issues/RPD/ tipbooklet_080812.pdf Singapore Inter-Agency. Taskforce on Trafficking in Persons,

Protocol).7 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the UN Trafficking 8 Humanitarian Organization for Migration Economics, FDW Trafficking Research Report, December 2012, available at: http://www.home.org.sg/library/research/.

Oceania”, International Migration, Vol. 43, Issue 1-2, p. 204. 9 Piper, N., “A Problem by a Different Name? A Review of Research on Trafficking in South-East Asia and International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial10 Sing Discrimination,apore has not the ratified, Convention for example, Against the Torture International or the Convention Covenant on on Civil the Rights and Political of All Migrant Rights, theWorkers and Members of Their Families. 11 See Article 6 of CEDAW and Article 35 of CRC. 12 See above, note 7, Article 3. Model Law against Trafficking in Persons, Article 5. 14 ILO Convention No. 29 on Forced or Compulsory Labour, 1930. 13 United Nations Office on Drugs and Crime, 15 UN Slavery Convention, 1926. 16 UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956. 17 Human Trafficking Indicators, available at: http://www.unodc.org/ pdf/HT_indicators_E_LOWRES.pdf; and International Labour Organisation, ILO Operational Indicators of Trafficking in Human United Beings Nations, 2009, Office available on Drugs at: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/and Crime, documents/publication/wcms_105023.pdf. 18 CEDAW, General Recommendation 19, UN Doc A/47/38, 1992, Para 24(a). 19 Ibid., Paras 24(h) and (i). Recommended Principles and Guidelines on Human Rights and Human Trafficking: Commentary, 2010, p. 3. 20 UN Office of the High Commissioner for Human Rights, 21 Ibid., p. 40. 22 Association of South East Asian Nations, ASEAN Human Rights Declaration, 2012. 23 Further details about the OSCE’s 12th High-level Alliance against Trafficking in Persons conference are available at: http://www.osce.org/event/alliance12. 24 OSCE, Alliance against Trafficking in Human Beings – An Agenda for Prevention of Human Trafficking: Non- Discrimination and Empowerment – A Concept Note, October 2012, available at: http://www.osce.org/cthb/93890. 25 OSCE, Action Plan to Combat Trafficking in Human Beings, 24 July 2003, Part IV, Paragraphs 1 and 3.3, available at: http://www.osce.org/pc/42708. 26 See above, note 24, p. 2. 27 Zannier, L., “Opening Remarks”, at OSCE, Alliance against Trafficking in Human Beings – An Agenda for Prevention of Human Trafficking: Non-Discrimination and Empowerment, October 2012, available at: http://www. osce.org/cthb/97267. 28 See above, note 7, Articles 6-8. 29 Ibid., Articles 9-13.

Michigan Journal of International Law, 2011, Vol. 33, pp. 57 and 63. 30 Todres, J., “Widening our Lens: Incorporating Essential Perspectives in the Fight Against Human Trafficking”, 31 See above, note 7, Article 6.

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32 Ibid., Article 8(2). 33 International Labour Organization, Domestic Workers Across the World: Global and regional statistics and the extent of legal protection, 9 January 2013, p. 19, available at: http://www.ilo.org/wcmsp5/groups/public/--- dgreports/---dcomm/---publ/documents/publication/wcms_173363.pdf. 34 Ibid., p. 28. 35 Ibid., p. 39. 36 See above, note 24, p. 5. 37 ILO Convention No. 189 concerning Decent Work for Domestic Workers, 2011, Preamble. 38 See above, note 18, Para 14. 39 CEDAW, General Recommendation 26 on Women Migrant Workers, 5 December 2008, Paras 13-14. 40 UN Special Rapporteur on Contemporary Forms of Slavery, including its causes and consequences, Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, p. 1, available at: http://www.ohchr.org/Documents/Issues/Slavery/SR/A.HRC.15.20_en.pdf. 41 Ibid., Para 60. 42 Ibid. 43 Polaris Project, Domestic Work, available at: . http://www.polarisproject.org/human-trafficking/labor- 44 Amnesty International, , trafficking-in-the-us/domestic-workFalse Promises: Exploitation and Forced Labour of Nepalese Migrant Workers December 2011. 45 UN Economic and Social Council, Report of the Special Rapporteur on the human rights aspects of the victims of trafficking in persons, especially women and children, Sigma Huda, 20 February 2006, Para 30, available at: http:// www.arabhumanrights.org/publications/countries/lebanon/rapporteurs/e-cn4-2006-add3-06e.pdf. 46 See above, note 40, Para 33. 47 See above, note 45, Paras 28-36. 48 Anti-Slavery International, Trafficking in Women, Forced Labour and Domestic Work in the Context of the Middle East and Gulf Region, pp. 28-32.

49 Office of the High Commissioner of Human Rights, “United Arab Emirates: UN Expert urges further action to 50 Organization for Security and Co-operation in Europe, protect victims of trafficking”, 17 April 2012. Unprotected Work, Invisible Exploitation: Trafficking for the Purpose of Domestic Servitude,2010, p. 37. 51 See US Department of State, Trafficking in Persons Report 2012, above note 3, p. 194, in which a recent case from Israel is described as follows: “In a precedential case in February 2012, the government convicted

persontwo individuals under conditions for forced of labor slavery’ of a andFilipina withholding domestic of worker a passport; under the the sentence trafficking was statute. pending While at the there end wasof the no evidence of physical violence inflicted upon the victim, the court recognized this case as an offense of ‘holding a 52 US Department of State, “California Woman Sentenced to Five Years Imprisonment For Forced Labor of reporting period and the victim had been referred to a trafficking shelter”. Domestic Servant”, 15 April 2010; and Metropolitan News Enterprise, “Court Upholds $760,000 Damage Award in

Human Trafficking Case”, October 2010. 53 The Star Online, “Mother and two daughters charged with trafficking maid”, 23 March 2012; Borneo Post, “10 2012.years’ jail for couple in maid exploitation appeal case”, 7 July 2012; and Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants, “Maid Agency Owner Gets Six Years For Trafficking Two Filipino Women”, 30 March 54 Ministry of Manpower, Work Permit (Foreign Domestic Worker) – Before you apply: Foreign Domestic Worker Requirements, available at: http://www.mom.gov.sg/foreign-manpower/passes-visas/work-permit-fdw/before- you-apply/Pages/basic-requirements-of-a-foreign-domestic-worker.aspx. 55 See US Department of State, Trafficking in Persons Report 2012, above note 3, pp. 308-311.

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Factors”, in Cameron, S. and Newman, E. (eds.), Trafficking in Humans: Social, Cultural and Political Dimensions, United56 See, Nations for example, University, Asis, 2008, M.M.B., p. 190.“Human Trafficking in East and South East Asia: Searching for Structural 57 ILO Indicators, above note 17. 58 The ILO Indicators provide a method, or calculation, by which the presence of each dimension of the trafficking definition can be assessed. All of the indicators under each dimension, eg. deception, coercion and others.exploitation, The result are identified of the assessment as either strong,is positive medium if the ordimension weak indicators is present of forthat the dimension. potential The victim, method negative states if not.that In“for order each to potential be assessed victim, as positive,each of the a dimension dimensions must of the include: trafficking (i) two definition strong indicators; is assessed or independently (ii) one strong from indicator the and one medium or weak indicator; or (iii) three medium indicators; or (iv) two medium indicators and one weak

Ibid., p. 3. indicator. After an assessment is done for each dimension, the final analysis involves combining the different 59 Given that at the time when the HOME FDW Study was carried out, there was no mandatory weekly rest day elements to identify the victims of trafficking”. See the ILO Indicators, for FDWs in Singapore, the assessment of whether each interviewee had been subjected to excessive working days was made in accordance with the ILO Domestic Worker Convention requirement for weekly rest of at least 24 consecutive hours. According to this standard, not only did 146 of the 151 women work an excessive number of days, but 137 women were granted no rest days for certain periods of their employment. 60 Whilst there is no legal provision in Singapore setting out a minimum or maximum number of hours which an FDW should work in any day, week or month, the assessment of whether each interviewee had been subjected to excessive working hours was made in accordance with the working hour provisions set out in Section 38 of the Employment Act (which does not apply to FDWs, but which provides an appropriate comparator) which provides that no employee should work for more than (i) six hours without a period of leisure; (ii) eight hours in a day; and (iii) 44 hours in a week. Further, any employees who do work more than 8 hours in a day should be paid an overtime rate of no less than 1.5 times their hourly rate of pay, and no employee should work more than 72 hours of overtime in any one month. The minimum hours worked by any of the interviewees was 14 hours per day, and the maximum reported was a regular 20 hours per day (worked by six women). The average hours worked was 17.33 hours per day. 61 This issue of window cleaning has recently been proven as a particularly hazardous activity, especially given the number of deaths of FDWs resulting from falls from high-storey apartment windows in 2012 alone and the Ministry of Manpower’s decision to place restrictions on this practice. For further information, see The Jakarta Globe, “Spate of Maid Deaths in Singapore Prompts Indonesia to Call for Ban on Window Cleaning”, 8 May 2012; The Jakarta Globe, “Singapore Curbs Window Cleaning Amid Maid Deaths”, 5 June 2012. 62 Penal Code, sections 319-326 and 375-376. 63 Ibid., sections 340 and 342. 64 Employment of Foreign Manpower (Work Passes) Regulations 2012, Fourth Schedule, Parts I and II. 65 See US Department of State, Trafficking in Persons Report 2012, above note 3, p. 309.

67 The Equal Rights Trust, , London 2008, Principle 18, p. 12. 66 United Nations Office onDeclaration Drugs and Crime,of Principles above on note Equality 17. 68 National Plan of Action Against Trafficking in Persons 2012- 2015, Initiative 6, available at: http://www.mom.gov.sg/Documents/tip/tipbooklet_080812.pdf. Inter-Agency Taskforce on Trafficking in Persons, 69 Ibid., Initiative 16. 70 US Department of Homeland Security, Human Trafficking Indicators, 2010. 71 Giammarinaro, M., “Opening Address”, at OSCE, Alliance against Trafficking in Human Beings – An Agenda for Prevention of Human Trafficking: Non-Discrimination and Empowerment, October 2012, available at: http://www. osce.org/cthb/97272. 72 See above, note 30, p. 55. 73 Ibid, p. 67. 74 Ibid. 75 Alliance against Trafficking in Human Beings – An Agenda for

Lenarčič, J., “Opening Address”, at OSCE,

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Prevention of Human Trafficking: Non-Discrimination and Empowerment, October 2012, available at: http://www. osce.org/cthb/97268. 76 See above, note 67, Principle 11, p. 10. 77 Constitution of the Republic of Singapore 1965. 78 Committee on the Elimination of Discrimination Against Women, Concluding Observations on Singapore, CEDAW/C/SGP/CO/4/Rev.1, 16 January 2012, Para 9. 79 Lopez, D., “Panel 2: Exploring Non-Discrimination, Empowerment and the Law”, at OSCE, Alliance against Trafficking in Human Beings – An Agenda for Prevention of Human Trafficking: Non-Discrimination and Empowerment, October 2012, available at: http://www.osce.org/cthb/97283. 80 Case No. 02-CV-0085-CVE-FHM, October 2006. 81 See above, note 79. 82 Employment Act, Section 2. 83 Employment of Foreign Manpower Act [30/2007]. 84 See above, note 64. 85 See above, note 83, Part IV, Article 9. 86 Ibid., Part IV, Article 5. 87 Ministry of Manpower, “Work Permit (Foreign Domestic Worker) - Before you apply”, available at: http:// www.mom.gov.sg/foreign-manpower/passes-visas/work-permit-fdw/before-you-apply/Pages/default.aspx. 88 For further criticism of the mandatory weekly rest day policy, see Human Rights Watch, “Singapore: Domestic Workers to Get Weekly Day of Rest”, 6 March 2012. 89 Mantouvalou, V., “Human Rights for Precarious Workers: The Legislative Precariousness of Domestic Labour”, Comparative Labor Law and Policy Journal (Forthcoming), p. 1, available at: http://papers.ssrn.com/sol3/papers. cfm?abstract_id=2115016. 90 Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, 17 September 2003, Inter-AmCtHR (Ser A) No 18 (2003). 91 See above, note 89, p. 17. 92 See above, note 67. 93 Ministry of Manpower, Changes to the Employment Agency Regulatory Framework, February 2011, p. 4. 94 Employment Agencies Act, Section 14. 95 Employment Agencies Rules 2011, Rule 12. 96 Ibid., Rule 12(2). 97 Ministry of Manpower, “Work Permit – Before you apply: Security Bond”, available at: http://www.mom.gov. sg/foreign-manpower/passes-visas/work-permit-fw/before-you-apply/Pages/security-bond.aspx. 98 Ministry of Manpower, “Work Permit (Foreign Domestic Worker) – Before you apply”, available at: http:// www.mom.gov.sg/foreign-manpower/passes-visas/work-permit-fdw/before-you-apply/Pages/default.aspx#levy. 99 Employment of Foreign Manpower (Work Passes) Regulations, Paragraphs 20 and 21 of Part I of Fourth Schedule.

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Developing Equality Legislation in Divided Societies: the Case of Bosnia and Herzegovina

Adnan Kadribašić1

1. Introduction

Bosnia and Herzegovina (BaH) declared in- ses the extent to which structural obstacles dependence from the former Yugoslavia in to equality exist in a divided society. It also 1991. Unlike other republics of the former shows how certain measures which aimed to Yugoslavia, BaH is a multi-ethnic society2 ensure full equality of groups that were on and the referendum and the declaration of opposing sides during the war have in fact independence were not hailed positively by led to more inequality and discrimination. all ethnic groups. The declaration of inde- The article also aims to analyse the adoption pendence led to four years of war (1991– of the new Law on the Prohibition of Dis- 1995) which impacted negatively on the crimination, its content and the use of this enjoyment of every recognised human right Law to litigate discrimination cases and its and freedom guaranteed under internation- potential to support further equality efforts. al law. The war was brought to an end when It also points to the remaining challenges in the international community stepped in and the area of equality in Bosnia and Herzego- negotiated the General Framework Agree- vina and explores how the new anti-discrim- ment for Peace in BaH (also known as the ination legislation might be used to develop Dayton Agreement).3 further policies in the area of equality, non- discrimination and inclusion. promote equality and eliminate discrimina- 2. Constitutional Provisions on Equality tionThe war’sand placed legacy such has efforts influenced in the efforts context to and Non-discrimination of removing obstacles to reconciliation. Al- though some progress was made, the social The Constitution of BaH is an annex to the gap between ethnic groups in society has 1995 Dayton Agreement. Its intention was never been larger (excluding the war peri- to provide a legal structure for the func- od).4 According to research conducted by the tioning of BaH in the days after the Dayton Open Society Fund of BaH, 86% of the coun- Agreement was signed. The Constitution has try’s citizens believe that discrimination is established a limited central state that in- a serious problem in society, with ethnic- cludes two fairly autonomous entities: the ity and religion being perceived as the most Republika Srpska (RS) and the Federation of common grounds for discrimination.5 BaH (FBaH).6 Almost all of the competences of the central government are devolved to This article explores current equality and the two entities. The state level government, non-discrimination law in BaH and analy- the Council of Ministers of BaH and the leg-

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islature, the Parliamentary Assembly of BaH, gion, freedom of expression and freedom of have a competency over foreign affairs, de- peaceful assembly, and freedom of associa- fence and the monetary system. In all other tion with others.”9 It also paraphrases rights areas, however, the state bodies play a co- from Protocol I to the ECHR (“the right to ordinating function and the entities are au- property and the right to education“) and tonomously responsible for regulating rights Protocol IV (“the right to liberty of move- in all areas apart from those that are the pre- ment and residence“). rogatives of central government. It is important to note that this list is non The Constitution has respect for human exhaustive because it starts with the words rights as one of its central pillars. The pre- “these include” and the full list of rights guar- amble of the Constitution declares that BaH anteed directly by the Constitution of BaH will be based on respect for human dignity, are the rights and freedoms “set forth in the liberty, equality, peace, justice, tolerance, and European Convention for the Protection of reconciliation and that it was inspired by hu- Human Rights and Fundamental Freedoms man rights instruments.7 The Constitution and its Protocols” which it states “shall apply also proclaims that BaH and both entities directly in Bosnia and Herzegovina.”10 shall ensure the highest level of internationally recognised human rights and fundamen- The guardian of the Constitution is the Con- tal freedoms but it does not continue to de- stitutional Court which also has an appellate - antees. It rather takes a dualistic approach Constitutional Court has an appellate juris- whichfine the combines content ofdirect human application rights that of itthe guar Eu- dictionrole, i.e. overindividuals issues canunder file appealsthe Constitution to it. The ropean Convention for the Protection of Hu- arising out of a judgment of any other court man Rights and Fundamental Freedoms and in BaH.11 This appellate jurisdiction repre- its Protocols (ECHR)8 and an enumeration of sents a novelty in the system of constitution- a list of human rights. al law in BaH, and implies the introduction of individual constitutional action, i.e. an op- This list starts with a reference to Article II/2 portunity to review legal acts and decisions if and the ECHR but continues to paraphrase they are in violation of the appellant’s rights the titles of rights in an enumeration of rights and freedoms. found in the text of the ECHR: The central provision of the Constitution re- “[T]he right to life, the right not to lated to non-discrimination is Article II/4. It be subjected to torture or to inhuman or states: degrading treatment or punishment, the right not to be held in slavery or servitude “The enjoyment of the rights and free- or to perform forced or compulsory labour, doms provided for in this Article or in the the rights to liberty and security of per- international agreements listed in Annex I to son, the right to a fair hearing in civil and this Constitution shall be secured to all per- criminal matters, and other rights relating sons in Bosnia and Herzegovina without dis- to criminal proceedings, the right to private crimination on any ground such as sex, race, and family life, home, and correspondence, colour, language, religion, political or other freedom of thought, conscience, and reli- opinion, national or social origin, association

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with a national minority, property, birth or According to the Article IV/1 of the Consti- other status.”12 tution, the House of Peoples shall comprise 15 Delegates, two-thirds from the Federation This provision seems to be largely inspired by Article 14 ECHR. It provides protection from discrimination on “any ground” mean- Serbs);(including15 and five theCroats Presidency and five Bosniaks)of BaH shall and ing that, as is the case for Article 14 ECHR, consistone-third of three from theMembers: Republika one Bosniak Srpska (fiveand the list then provided is open rather than one Croat, each directly elected from the ter- - ritory of the Federation, and one Serb direct- nation in Article II/4 and what forms it takes, ly elected from the territory of the Republika theclosed. BaH In Constitutional defining what Courtis meant often by discrimirefers to Srpska.16 This provision which aimed to en- the jurisprudence of the European Court of sure political equality of Bosniaks, Croats Human Rights (ECtHR) in its interpretation and Serbs has however excluded all those of Article 14 ECHR.13 groups which do not belong to these ethnic groups from participation in these bodies. However, although it is inspired by Arti- cle 14 ECHR, Article II/4 has a wider scope This provision was challenged before the of application. Whilst Article 14 ECHR only ECtHR by two citizens of BaH, Mr. Dervo Se- provides the right to non-discrimination in jdic (a member of the Roma minority) and relation to the other rights enumerated in Mr. Jakob Finci (a member of the Jewish mi- the ECHR, Article II/4’s right to non-discrim- nority) who claimed that it was discrimina- ination relates to the enjoyment of rights and tory and breached a number of their rights freedoms enumerated both in Article II/3 of under the ECHR.17 The Grand Chamber of the the BaH Constitution and the international Court agreed that the provisions were dis- agreements listed in its Annex I. This has criminatory.18 However, to date no consensus has been reached to amend the Constitution in its case law when the Court concluded that and the provisions remain in place.19 “Articlebeen confirmed II(4) of bythe the Constitution Constitutional of Bosnia Court and Herzegovina provides a more extensive 3. Equality Law Prior to 2009 protection from discrimination than Article 14 of the European Convention.”14 Protection from discrimination has been guaranteed by numerous laws in BaH since The main aim of the Dayton Agreement and 1993 and even before, at the time when BaH the Constitution of BaH annexed to it was to was a Republic within the Socialist Federa- tive Republic of Yugoslavia. Many pieces of therefore it has included provisions to en- legislation which guarantee certain rights surestop thethat armed the representatives conflict and to ensureof the peace, main had included a general provision prohibiting groups which were on opposing sides dur- discrimination.20 There have been a num- - ber of separate pieces of legislation which ence decision making. This was ensured by include provisions aimed at ensuring the reservinging the conflict seats in have the upper a mechanism house of tothe influ Par- equality of particular groups in society, most liamentary Assembly – the House of Peoples, notably the constituent peoples but also and for the three-member Presidency of BaH women,21 minorities,22 for people from certain ethnic backgrounds. 23 conflict veterans and conflict veteran families, etc.

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The Law on Gender Equality in BaH adopt- Court, which considered cases of alleged violations of Article II/4 of the Constitution which not only prohibited discrimination but of BaH. Because the Constitutional Court of ed in 2003 was the first piece of legislation- BaH has jurisdiction to hear individual cases tion on the grounds of sex/gender and sexu- in an appellate procedure, individuals, in also defined different forms of discrimina order to approach it, had to have exhaust- aligned with the Convention on the Elimina- ed all other remedies available in the legal tional orientation. of All Forms Its definitionsof Discrimination were generally against system of BaH. As a rule, individuals had to Women and provided protection against seek protection from lower courts in civil discrimination in access to any guaranteed procedures in which it was unclear whether rights. The Law provides a non-exhaustive these courts could even hear a discrimina- list of rights.24 Article 2 provides that full tion case. That is why in most of these cases gender equality shall be guaranteed in all spheres of society, including but not limited rights other than non-discrimination, and to education, economic life, employment and madevictims a discriminationasked the courts claim to find only violation when they of labour, social and health protection, sports, approached the Constitutional Court. The culture, public life and media, regardless of Constitutional Court has so far reviewed marital and family status. over 100 cases of discrimination, and found discrimination in a small number of provisions related mainly to employment (e.g. - dismissal of pregnant women, persons on rectThis discrimination,Law was the first as piece well ofas legislationother forms in sick leave or disabled persons). ofBaH discrimination. which has defined25 The both Law direct also prohibitsand indi 4. Reform of Anti-discrimination Law on the grounds of sex/gender and gender- basedand defines violence sexual as criminal harassment, acts.26 harassmentIn addition, In 2007, inspired by the Europe-wide it creates a number of positive obligations for Starting Line Group’s work to improve other institutions at all levels of government anti-discrimination protection,28 a group and introduces gender mainstreaming as an of over 100 NGOs from BaH conducted approach for policy-making. country-wide consultations on the content and scope of the future draft law. Follow- Although the proclaimed aim of the Law of ing these consultations, an expert group Gender Equality in BaH was to guarantee was formed to draft an Anti-Discrimination gender equality and to prevent discrimina- Act (the NGO Draft Law).29 In late 2007 the tion, the Law did not include any procedural group’s representatives presented the NGO provisions to guide victims of discrimination Draft Law to the Parliamentary Joint Com- in seeking effective remedy.27 As a result, the mittee on Human Rights, Rights of Children, Law has had a limited effect in protecting Youth, Immigration, Refugees, Asylum and against discrimination. Ethics. The Joint Committee and the MPs which were members of that Joint Com- Additionally, there have been different views mittee at that time declared that it would as to how a victim of discrimination could sponsor the Draft Law. This agreement was seek remedy. Prior to the adoption of the an unprecedented case of co-operation be- Law, protection against discrimination was tween elected members of the Parliamen- provided only through the Constitutional tary Assembly of BaH and NGOs.

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However, the Committee was concerned that need to meet. the NGO Draft Law included obligations of the Council of Ministers (the government there was a needIn its to first start meeting, to draft thea new working piece composed of ministers of the state level ofgroup legislation reviewed which the wouldfindings take and into concluded account ministries) of BaH and that, in its view, the the NGO Draft Law, but that its content need- regular legislative procedure, which requires ed to be further elaborated and needed to formal consultation with relevant ministries, take into account the unique administrative had not been followed.30 Although there were structure of BaH. It determined that it would no formal obstacles to putting the NGO Draft ensure an inclusive approach in its draft.32 In Law in the legislative procedure, develop- July a general public discussion took place ments were affected by the fact that the min- in the Parliamentary Assembly of BaH with istries which would be responsible for im- participation of over 100 representatives of plementing the Law had not been consulted NGOs, the general public and various institu- either formally or informally. The Commit- tions. The expert working group presented tee referred the NGO Draft Law to the Min- the main aims of the future law and asked the istry for Human Rights and Refugees of BaH participants to nominate persons to become (MHRR) for further consultations with other members of an expert working group which relevant institutions. The MHRR is among would be responsible for producing the other things responsible for the promotion draft. The additional members of the work- and protection of individual and collective ing group included representatives from the human rights and freedoms in BaH. It is also Ministry for Labour and Social Welfare, the responsible for implementing and coordinat- Ministry of Justice, the OSCE Mission in BaH, ing the implementation of laws which regu- the free legal aid NGO Vasa Prava, the trade late certain human rights in BaH. Following unions and religious communities. this consultation, the Council of Ministers, in its Program of Work for 2008, obliged the The new, much wider working group de- MHRR to prepare a draft law on non-discrim- cided that its main approach would be to en- ination by October 2008. The Council made sure that the draft was in line with the Race no reference to the NGO Draft Law. Equality Directive 2000/78/EC,33 Employ- ment Equal Treatment Directive 2002/73/ 4.1 The Process of Drafting the Law EC34 and the Recast Directive35 as well as other international legal provisions. Although In May 2008 the MHRR established an expert BaH was not a member of the EU, these di- working group for the purpose of preparing rectives were the main focus of the working a draft anti-discrimination law.31 The group group probably because the EU had included the adoption of legislation to ensure effec- the meeting a comparative analysis which tive protection against discrimination as one comparedheld its first ten meetinganti-discrimination in June 2008. acts Before in Eu- of the requirements for the Community Visa rope and a study on the requirements of BaH Facilitation and Readmission Agreements.36 according to international standards were (This sensitive requirement was a key factor conducted. These studies gave the work- also in the adoption of the draft law by the ing group an insight into the development Parliamentary Assembly.) of anti-discrimination legislation in other countries of Europe along with the minimal The working group faced a number of par- standards any anti-discrimination law would ticular challenges in producing a draft which

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neighbouring countries, in particular in Ser- discrimination very widely, the working bia and Croatia, which were also consider- groupmet these had aims. to follow Since this Article approach II/4 has in order defined to ing drafts of anti-discrimination laws at that include all obligations enshrined in the inter- time. In these countries, the opposition to the national agreements which were annexed to anti-discrimination laws was much stronger than it in BaH at the same time. The arguments against the draft anti-discrimination Asthe theConstitution concepts orof whichdiscrimination BaH had ratified.on other laws in Serbia and Croatia, largely as a result grounds besides gender (and the forms proof the media coverage they had received, be- hibited in the Law on Gender Equality in gan to be expressed also in BaH media and BaH) were new to the legal system of BaH, the Parliamentary Assembly of BaH. members of the working group also had In the Bosnian case, the debate was fuelled main challenges included deciding on the by an open letter to the members of the Par- listproblems of grounds defining on which the main discrimination concepts. was The liamentary Assembly by the Inter-Religious to be prohibited, the scope of the protection Council of BaH which stated: “If the law is provided by the law and the provisions for adopted in both houses of Parliament at the the formation and the role of a central insti- second reading without amendments, it will tution to combat discrimination. enable homosexual couples to legally marry and adopt children.”39 4.2 The Parliamentary Debate on the Law on the Prohibition of Discrimination However, as already noted, as the implementation of an anti-discrimination law By the end of 2008, having worked through was one of the requirements for the visa- - free travel regime with the EU, not a single nalised the draft, which it entitled Law on the member of parliament opposed the adop- Prohibitionthe above challenges, of Discrimination the working (Draft group Law), fi tion of the Draft Law. Rather, they opposed and submitted it to the Council of Ministers certain elements of the draft, in particular of BaH. On its 74th session held on 19 Janu- relating to the prohibited grounds and the ary 2009 the Council of Ministers decided scope. These arguments were heard during not to discuss the Draft Law and tasked the the parliamentary debate where amend- Ministry for Human Rights and Refugees to ments were proposed. Few delegates in the “conduct additional consultations with rep- House of Peoples opposed including “sexual resentatives of the OSCE Mission to BaH, orientation” as a prohibited ground and ad- - vocated for a clear exception in the applica- tution of the Ombudsman and the govern- tion of the law to family relations (marriage mentsOffice .of”37 theThis High delayed Representative, the process the of Insti the and adoption of children). One delegate adoption of the Draft Law by four months. stated that: After consultations with these organisations and institutions, the Council of Ministers ac- “I am on the side of all those who may cepted the Draft Law and introduced it in the suffer discrimination because of what they Parliamentary Assembly of BaH.38 are, and who could not choose what they are. However, I fear that this law might be abused The parliamentary discussion was largely in- by those groups or individuals who choose what they are.”40

fluenced by debates which were held in the

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Another delegate stated: list of protected characteristics: “marital and family status, pregnancy or maternity, age, “[A]nd these grounds which I do not health status, disability, genetic heritage, gen- like, this gender expression, sexual orienta- der, sexual orientation or expression”.45 Re- tion, I say it openly. I do not want it in this gardless of the reactions of the public, NGOs law. I do not like it, because I think it’s the and the international community, the amend- ‘other status’, and we can subsume it under ment was adopted in both houses.46 ‘other status’.”41 The second amendment proposed that the After the parliamentary debate relating to Draft Law should contain an exception so the Draft Law two sets of amendments were 42 sought to de- by the family codes”47 and employment and lete the following grounds of discrimination: membershipthat it does not in applyreligious to marriage institutions “as defined“which “maritalmade. The and first family amendment status, pregnancy or ma- is regulated by religious doctrines”. This ternity, age, health status, disability, genetic amendment, along with another paragraph heritage, sex and gender, sexual orientation which was added to Article 24, was accepted or expression”.43 It was obvious that all other and became part of the Draft Law. Both of - these changes will be discussed below in the tent to delete any ground which would relate analysis of the Draft Law. togrounds sexual were orientation included or togender camouflage identity. the in However, in the version of the law published What these delegates and other members of in the Official Gazette, “sexual orientation” the Parliamentary Assembly of BaH didn’t and “sexual expression” were re-introduced know was the fact that the ground “sexual into the list of prohibited grounds. To this orientation” was explicitly a prohibited day, none of the experts who monitored the ground in the BaH legal system since 2003 adoption of the law have been able to learn when the Law on Gender Equality had been how this happened; but no one dared to raise adopted and that the criminal codes also the issue for fear of causing a possible revi- covered “sexual orientation” in the offence of sion of the published version. “breach of equality of citizens”.44 This debate was clearly politically motivated. Needless to 5. The 2009 Anti-discrimination Law say that gender (Law on Gender Equality), disability (labour laws, disability rights spe- After many discussions and exhausting parliamentary debate, the Law on the Prohibi- - tion of Discrimination was adopted in July nitycific laws),(Law onhealth Gender status Equality) (labour andlaws, age health (la- 2009 and entered into force in August 2009. rights specific laws), pregnancy and mater Article 1 of the Law stipulates that it “shall already recognised as prohibited grounds for provide a framework for implementation of discriminationbour laws, education in the specificlegal system laws) of were BaH. also equal rights and opportunities to all persons - The Joint Committee on Human Rights, Rights tion from discrimination”. However, only a of Children, Youth, Immigration, Refugees, fewin BaH of its and other shall provisions define a relatesystem to ofthis protec guar- Asylum and Ethics, which was tasked to re- antee. In fact the essence of this Law is seen view all of the amendments made to the Draft in the very title: this is a law against discrimi- Law, agreed to delete the following from the nation and as such establishes a mechanism

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for protection against discrimination. This tive issue during the adoption process. And was in line with the aim of the working group although some grounds were excluded from who, at the very beginning, had agreed that it would be impossible to draft an overreach- that the Law prohibits discrimination with ing equality law at that time. Thus, the Law is referencethe list in Articleto a non-exhaustive 2 of the Law, listit is of significant grounds. reactive in its aim. There are two safeguards to ensure that the list remains open-ended. The list starts with At the same time, the current fragmentation the word “including” and ends with “and of anti-discrimination protections through- every other circumstance” which both aim to out the legal system of BaH leads to many ensure that other grounds are not excluded. problems in practice. If we look at this de- centralisation approach in the light of the This open-ended list is an indication that the complexity of the legal system, the number drafters of the Law were inspired by other inof possible problems multiplies. There have ternational standards and not only by those already been efforts to ensure that equal- found in the EC directives. The list of prohib- ity provisions throughout the country do ited grounds was more comprehensive in the exist within certain areas of laws. These Working Group Draft Law but as the ground related to the Law on Gender Equality, the of sexual orientation was disputed in the leg- Law on the Rights of Members of National islative process, a number of other grounds Minorities, framework laws on education, the Election Law and other pieces of legisla- Law includes the ground of sexual orientation. However, there has been no attempt at tionwere but also other deleted. grounds The are final missing, version e.g. of age, the harmonisation in relation to the approach to birth and disability. However, because the list equality in many aspects of life. This is most is open-ended, in practice it will be possible evident in respect of equality in the exercise to cover these grounds, especially since they of economic and social rights which are decentralised into 14 different legal systems.48 pieces of legislation in BaH. Interestingly, the This is evident also in provisions which aim are defined as prohibited grounds in other- to achieve equality, e.g. maternity leave pro- tion after the adoption of the Law concerned visions, provisions relating to the rights of discriminationfirst judgment madeof persons in a case with of disabilities. discrimina49 persons with disabilities, protection of the Still it would be preferable for future amend- rights of workers, etc. ments to the Law to recognise the importance of including other prohibited grounds. 5.1. A Non-exhaustive List of Prohibited Grounds Furthermore, perception of characteristics associated with a prohibited ground is also part of this open-ended list. This Law did the list of prohibited grounds. Because the - constitutionalThe working group provision had afeatured problem an defining open- er “circumstances” or other grounds and it ended and non-exhaustive list of prohibited not introduce a test as to how to define oth grounds, the discussion concentrated on practice. One of the possible solutions would grounds which should be explicitly prohib- bemight to point be difficult to grounds to define which new are alreadygrounds de in- ited. As explained above, the list of grounds to be covered by the Law was the most sensi- or grounds from international legally bind- fined in some other pieces of legislation and/

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nity of a person, especially when it creates jurisprudence of the ECtHR on the interpre- fearful, hostile, degrading, humiliating or ingtation documents of the ECHR BaH could has ratified. be one of Further, the sourc the- offensive environment”. es for identifying the protected grounds because, according to the letter of the Consti- Acts of discrimination which would fall un- tution, the ECHR applies directly in BaH and der the category of violence against women has priority over all other law.50 criminal acts in the Law on Gender Equal- 5.2. Prohibited Forms of Discrimination ityor gender-basedin BaH.52 Sexual violence harassment, are also harassment defined as on the ground of sex/gender and domestic The Law prohibits direct and indirect discrimination, harassment, sexual harassment, years of imprisonment. The focus in the re- mobbing, segregation, instruction to discrim- centviolence years are was punishable on prevention by six months and prosecu to five- inate and incitement to discriminate. The def- tion of domestic violence and special laws initions of direct and indirect discrimination institutions. Around 600 cases of domestic be found in the Declaration of Principles on violencewere adopted are prosecuted which define yearly the in roles the ofcountry other Equalitygenerally and follow include the the definitions need to identify which can an but most of the sentences include probation act and the comparator.51 and rarely imprisonment.53 To date, only a relate to acts which have occurred, which few sentences in cases of sexual harassment presently exist and/or might These occur definitions in future. have been delivered but there has been a gradual increase in the number of cases. One of the most recent judgments included a one grounds does not imply a notion of “multiple year prison sentence for long-term verbal discrimination”.The Law does notThis define,could be and seen the as list one of sexual harassment in the workplace. How- of the problematic features of the Law and ever there are no comprehensive data on the could cause problems in proving multiple prevalence of sexual harassment or harass- discrimination in litigation efforts. ment on the ground of sex/gender and there are no statistics on the number of cases. discrimination resemble those found in the 5.3. The Scope of the Law DeclarationWhile the definitions of Principles of on direct Equality, and indirectthe definitions of segregation and incitement to dis- The prohibition of discrimination applies to criminate were inspired by the International Convention on the Elimination of All Forms scope of the Law is wide but is also depend- of Racial Discrimination. antall rights on the regulated rights which by law. need Thus to already defined, exist the in the legal system.54 - mirror the general prohibition of discrimina- crimination, appears not to be grounded in tion in Protocol No. 12 The of thescope ECHR. is defined55 to any“Mobbing”, of the international also defined documents as a form BaH of dishas - harassment which however is not connect- edsigned. to any It isof defined the prohibited as repetitive grounds, workplace and is One of the difficulties faced during the draft only aiming at an effect of “harming the dig- BaHing process has a complex was in defininglegal and the political scope strucof the- Law. The main difficulty was the fact that

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ture with various levels of government com- 5.4.2 Exemptions from the Law’s Application petent to determine rights and entitled to The rest of Article 5 goes on to list excep- result that some rights are guaranteed in one tions to the principle of equal treatment.59 partdefine of accessthe country to rights but differently,not in other with parts. the56 The list of exceptions does not seem to have However, the Constitution could be the sole an inner logic and includes exceptions of reference for what is meant by “guaranteed employment in religious institutions; posi- rights” under the Law, as it enumerates only tive measures for marginalised groups; a certain number of rights, not the full spec- genuine occupational requirements; exceptions in the best interest of the child; rea- had discussions to include a list of human sonable accommodation; and exceptions rightstrum. Accordingly,and freedoms the in workingthe very grouptext of firstthe which arise from family law and citizenship. Working Group Draft Law. It is not clear how these exceptions were selected, and thus they are problematic as This dilemma unfortunately remained unre- they cannot be examined in a court. solved in the Law because in addition to the application of the already mentioned “gen- One of the most problematic exemptions re- eral prohibition of discrimination” approach, lates to rights which arise from family law.60 the areas of application of the principle of This exception was added during the parliamentary debate and mirrors a similar provi- areas were emphasised in Article 2 in which sion in the Law on the Prevention of Discrim- thenon-discrimination grounds were enumerated were also defined. but they These were ination in Croatia, Article 2 paragraph 10. 57 As noted above, the parliamentary debate in

additionally5.4. Permitted vaguely Unequal defined Treatment in Article 6. in BaH which, combined with the pressure of theCroatia Inter-religious had a strong Council, influence led on to the the debate adop- 5.4.1 Justified Discrimination tion of this amendment. Its intention was to deny the application of the principle of non- discrimination to homosexuals in access to rights which arise from family law.61 It aimed In an attempt to define the general rule for to prevent any litigation under this Law that 5,the prescribes justification a test of for different when different treatment treat the- would challenge the opposite sex clause as a Law,ment inshall the not first be two considered paragraphs discrimina of Article- requirement to conclude a marriage, or any tory.58 To meet this test any “unfavourable discrimination claims in adoption proce- distinction or different treatment” needs to dures initiated by same sex couples.62 While be based on “objective and reasonable jus- there is no consensus on this issue in Europe, the ECtHR has generated some case law in goal” and there must be “a reasonable rela- recent years, e.g. the case of E.B. v France,63 tiontification” ratio ofand proportionality needs to “realise between a legitimate means which could at some point bring into ques- - tion the exception related to family law in cation test can be only applied to behaviour BaH. In any case, this exception disables the whichused and would goals usually to be be achieved”. considered This direct justifi or use of the Law in challenging any provisions indirect discrimination, because these forms of family law as discriminatory in the local of discrimination result in different treat- courts. The Law puts family law provisions above the principle of non-discrimination.

ment as defined by law.

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To date, this exception has not been chal- This provision has shifted the burden of lenged in the courts; it would be important proof from the plaintiff to the respondent to to do this especially where there is case law prove that discrimination did not take place. available which could be relied upon. This is a novelty in BaH civil proceedings, in which, according to the general rule, the 6. Enforcement plaintiff needs to provide facts and to prove every segment of the alleged breach and the The Law has established a new anti-dis- respondent can remain passive. If the evi- crimination litigation procedure with new dence is simply out of reach of the plaintiff, rules to accommodate the specific nature of discrimination proceedings. The Law has to Article 15(2) statistical data can be used relied on the existing civil procedure codes tothe shift courts the willburden find of no proof violation. and according According to in the legal system of BaH and the discrim- Article 15(3), in cases of failure of reasona- ination litigation procedure follows the ble accommodation, the burden of proof lies general rules established by these codes. with the respondent. There are however some exemptions from the general rule such as those regarding These provisions also establish a judicial the burden of proof, collective complaints protection from discrimination which pro- and the use of statistical data which have vides a direct access of victims to protection aimed to accommodate the special na- mechanisms. This contributes to legal cer- ture of discrimination proceedings. These tainty and facilitates access to justice. rules apply only for cases of discrimination heard under civil procedure codes and not - in the proceeding in front of the Constitu- gation under the Law was initiated by the tional Court. anti-discriminationAccording to the available team ofdata, Vasa the Prava, first liti an

According to the Law, any person who be- judgment which found discrimination re- lieves that they have been discriminated sultedNGO providing in litigation free started legal aid, by andthis theNGO. first In - total, the Vasa Prava anti-discrimination nicipal court. New procedural rules for dis- team has initiated over 20 cases. The USAID criminationagainst can filecases a lawsuit follow atthe the guidelines closest mu in Parliamentary Support Program published the EU discrimination directives and enable an assessment on the implementation of the an easier standard of proof in discrimina- Law, based on the litigation efforts of Vasa tion cases. Prava, which made recommendations to relevant parliamentary committees.64 This According to Article 15(1) of the Law: assessment concluded that the Law has the potential to ensure protection for victims of “In cases when a person or group of discrimination and that the courts are capac- persons provide facts in proceedings under itated to hear cases according to the provi- Article 12 of this Law, corroborating allega- sions of this Law.65 Even more importantly, tions that prohibition of discrimination has some cases had a strategic impact and led been violated, the alleged offender shall have to the development of new policy responses. a duty to prove that the principle of equal One example is the “two school under one treatment or prohibition of discrimination roof” case66 which lead to a new policy be- has not been breached.” ing adopted by the Ministry of Education and

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Science of the Federation of BaH introducing tution was established in 200268 according guidelines for school integration. to the Paris Principles69 and its mandate includes the activities required by the relevant The Law has also proved valuable in chal- EU equality directives and proposed by the lenging practices which had commenced European Commission against Racism and Intolerance (ECRI) General Policy Recom- discrimination in the Law have helped ad- mendation No. 2.70 dress,prior to for its example,enforcement. the failureThe definitions to include of children with disabilities in primary educa- The Human Rights Ombudsman of BaH has, - in accordance with the provisions of the Law, sional as a director in a primary school be- the role of the central institution to combat causetion, the she refusalwas a Catholic to hire nun, a qualified and the profes segre- discrimination. It is important to note that gation of children in primary schools based the role of the Ombudsman does not include on their ethnicity. deciding equality and discrimination cases but it includes assisting victims, initiating an However, overall, the number of discrimina- investigation and issuing recommendations tion cases litigated to date remains low. One which are not legally binding. of the reasons might lie in the scarcity of initiatives to promote the protection provided - under this Law. A recent survey has shown cant responsibilities in raising awareness that although 86% of interviewees per- onThe discrimination Institution was and also combating vested with prejudice signifi ceived discrimination to be a very pressing and stereotypes. Immediately after the adop- social problem, only 36% were aware of the tion of the Law, the Institution established a existence of the Law and only 25% had any department for the elimination of all forms knowledge of the content of the Law.67 Fur- of discrimination. In 2011, the Institution thermore, it appears that many human rights - NGOs are not aware of the possible changes tions of discrimination.71 Its aim was to in- litigation of discrimination cases could bring. formpublished the Council its first of reportMinisters on of the BaH manifesta and the Parliamentary Assembly of BaH about the 7. Institutional Responses to Inequality allegations of discrimination the Institution and Discrimination had received since the adoption of the Law and recommend legislative amendments. Its Although the Law has put an important em- aim was also to inform the public about dis- phasis on protection from discrimination, crimination and inequality in BaH. The Om- its aim was not only to prosecute offenders budsman concluded that there is a need for a but to establish a mechanism to detect pat- stronger awareness-raising campaign on the terns of discrimination and to identify pro- existence of the Law, noting the disparity be- active responses by the central institution tween the perception of discrimination and of the Ombudsman, and to a certain extent the low number of appeals the Institution by the MHRR. has received. The Ombudsman also concluded that there is a need to establish a mechanism to harmonise other laws with this Law. of the Ombudsman for Human Rights of BaH (theThe LawInstitution) has defined as the the Central existing Institution Institution for This report has however shown that the the Prevention of Discrimination. The Insti- Institution mainly deals with cases which

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have a potential to be litigated. Thus the velopment of equality and non-discrimina- Ombudsman plays a role of a mediator rath- tion policies. er than a role of the human rights institution which would deal with systemic prob- It seems also that civil society organisa- lems in the area of discrimination. It is also tions, although they have certainly done not clear whether the Institution informs more than the MHRR, have not done enough the plaintiffs about the judicial proceedings to promote the Law or use it as a tool for which are available. advocacy. One of the few developments was the publishing of the Commentary to the A report published in October 2012 by a Law by the Human Rights Centre of the Uni- think-tank called “Analitika” tracked obsta- versity of Sarajevo73 which aimed to explain the Law both to professionals and the pub- the role of the Institution in the protection lic. Today, there are some further initiatives ofcles individuals preventing from the efficientdiscrimination. fulfilment72 The of focusing on the implementation of the Law, main obstacles relate to the reactive role including The Equal Rights Trust’s project the Ombudsman has played to date; there- “Developing civil society capacity to combat fore the report recommended a proactive discrimination and inequality in BaH”, and approach to the promotion of the Law and projects of the Open Society Fund in BaH its protection mechanisms, and the raising and the Civil Rights Defenders. The OSCE of public awareness of discriminatory prac- Mission to BaH has distributed, through its tices in the country. - mation about the Law to NGOs and citizens’ Alongside the Ombudsman, the MHRR has services.field offices, Additionally, leaflets containing the Mission basic trained infor responsibility for monitoring the implemen- 150 judges and prosecutors on application tation of this Law as well as managing the of the Law in 2011 and 2012. central database of discrimination cases. The MHRR was tasked with adopting a Regula- In early 2013, based on the set of recom- tion on the methods of collecting data on mendations made by the USAID,74 the Joint Committee on Human Rights, Rights of Chil- the content and layout of a questionnaire to dren, Youth, Immigration, Refugees, Asylum collectcases of data discrimination, and regulate whichother issueswould related define and Ethics75 has adopted a new approach to to data collection. At the time of writing, such monitoring the implementation of the Law a Regulation is yet to be issued, although a and has tasked the MHRR to take more action working group was established in 2010. For to promote the Law and even to initiate the this reason, it is almost impossible to assess adoption of an action plan. The Joint Com- the implementation of the Law or the chang- mittee has also declared itself competent to es which it was supposed to bring. review all new draft law and to determine if there is a need to harmonise it with laws pro- Moreover, the MHRR has failed to play a hibiting discrimination. proactive role in equality and non-discrimination and has not published the annual re- 8. Quotas and Preferential Treatment ports which the Law require it to produce. It has done nothing so far to promote the Law Some important segments of equality re- to the public or to professionals. Further, the main unaddressed by the current legal re- - gime. These are particularly crucial for BaH

Ministry has failed to fulfil its role in the de

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as a country in transition. In some cases, ex- to the presidency and the legislature and isting laws fail to comply with international appointments to the executive. The main standards on when differential treatment policy mechanism applied to achieve power- may be permissible. Even more worryingly, sharing and parity is ethnic quotas or quo- they have led to discrimination on different tas for the “constituent peoples” (Bosniaks, grounds. The next section looks at how quo- Croats and Serbs) whereas all other groups - remain outside these arrangements. Ethnic enced the principle of equality in BaH. groups which are recognised as constituent tas and preferential treatment have influ peoples also vary in demographics and the Quotas have been one of the most popular parity applied can be considered to be “over- ways in which BaH legislators attempted to representation as an additional guarantee achieve equality. There are quotas for access of protection”79, or “disproportionality in fa- to public service, decision-making positions, vour of minorities”.80 the armed forces, the police and the judiciary. Also, a number of laws provide that “prefer- As noted above, the Grand Chamber of the ential treatment” should be applied in access ECtHR found provisions introducing quotas to employment, health, education and access for the election of the members of the Presi- to resources for different parts of the popu- dency of BaH and the House of Peoples of the lation solely based on their status76 rather Parliamentary Assembly of BaH discrimina- than their needs. The application of quotas tory.81 The Court agreed that there are no and preferential treatment has, in practice, requirements under the Convention to aban- put individuals who do not belong to these don totally the power-sharing mechanisms groups in a less favourable position, which peculiar to BaH, but that there are other might lead to discrimination. The Law on mechanisms of power-sharing which do not the Prohibition of Discrimination has failed automatically lead to the total exclusion of to address the issues created by the omni- representatives of other communities. Al- presence of quotas in the legal system. The though the ECtHR judgment was published permissible different treatment test is the in December 2009, there has been no agree- only new standard the Law has introduced ment yet on how to tailor future power-shar- but the implementation of this test on quo- ing mechanisms so that they are compliant tas and preferential treatment provisions de- with the judgment. It appears at this moment pends on decision makers at different levels that political parties are more inclined to es- of the government. tablish a system which would aim for parity but which would not simply exclude the The Dayton Agreement, which included the “non-constituents”, without breeching any Constitution of BaH as one of its annexes, has provisions of the ECHR. introduced mechanisms aimed at ensuring parity between the parties to the armed con- In January 2013, the amendments of the 77 Hence, elements of Constitution of the Canton of Sarajevo (one the consocial power-sharing theory78 can be of 10 cantons in the BaH entity Federation of flict, along ethnic lines. Bosnia and Herzegovina) were welcomed as a step towards the implementation of the de- Power-sharingidentified in the and BaH paritypolitical mechanisms system. are cision of the ECtHR. These amendments have found across the political system of the established a caucus of “others” along with country including in particular the election caucuses of “constituent peoples” in the Can-

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tonal Assembly. The groups of “others” are but this power-sharing arrangement none- now able to elect one of three deputy-presi- theless forces parity of groups in a human dents of the Cantonal Assembly of the Canton rights institution, with the effect of exclud- of Sarajevo. This decision has the potential ing “non-constituents”. making of the Cantonal Assembly of Sarajevo Laws which regulate the employment of civil to enable the “others” to influence decision servants could be seen as an example of how Assembly is competent to adopt cantonal preferential treatment was introduced in a laws,– a significant budgets, achievementand policies inand so tofar appoint as this system of employment which is otherwise the members of the Cantonal Government. laws contain provisions that relate to the na- Quotas are applied not only as a parity policy tionalbased onstructure candidates’ of civil qualifications. servants, such All these that instrument to ensure power-sharing but also the structure of civil servants “shall generally in a number of different areas which are not - necessarily elements of democratic systems. tion in accordance with the most recent cen- The number of such provisions in different sus.reflect None the ofnational these lawsstructure” have regulatedof the popula how laws is hard to estimate but they can be found this provision would be applied, which has in most laws governing appointments and opened a wide space for discretion and dif- employment. In respect to appointments, ferent interpretation. Only one law which parity is usually achieved through quotas or regulates the employment in a local commu- preferential treatment and in respect to em- nity83 provides a test when preference can ployment it is usually sought through prefer- be allowed. In a case where two candidates ential treatment alone. have achieved equal scores, preference can be given to the candidate of the under-repre- The appointment of a member to the Insti- sented constituent people. This test could be tution of the Ombudsman for Human Rights considered to be aligned with the reasoning can be considered as an example of power- of the European Court of Justice (ECJ) in the sharing which is not a part of the consocial cases of Kalanke84, Marschall85 and Abraha- democracy model or theory: masson.86 Any other preferential treatment could be considered discriminatory. “[T]he Ombudsman shall be appointed from the ranks of the three constituent peo- The common agreement on the legitimate ples (Bosniaks, Serbs and Croats), which does aim for these exceptions is that they have not preclude the possibility of appointing an attempted to ensure equal participation of Ombudsman from the ranks of ‘others’.”82 constituent peoples and achieve a multieth- nic civil service; otherwise the Ombudsmen Although this provision does not automatically exclude the “non-constituents”, three in particular because they exclude all “non- - constituents”.could hardly find quotas to be proportionate, pointed as members of one of three constit- Ombudsmenuent peoples. Ombudsmen currently in are office not werein charge ap Unfortunately, similar provisions can be of different departments, there is no hierar- found in other laws, governing, for example, chy between them and they also need to co- access to employment for families of soldiers sign all decisions made by the Institution. who died during the war, access to employ- The Institution is nominally independent, ment for war veterans and access to educa-

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tion for children of soldiers who died during of equality and non-discrimination this Law the war, which do not contain any safeguards would not have met international stand- to ensure that these provisions were used ards. Notably, even under the pressure of only to achieve equality and that they do not international organisations and the public, adversely discriminate. parliamentarians tried to narrow the power and scope of the Law as much as possible. All of these provisions could be challenged Similarly, as expected, there has been strong at least in private law suits according to the resistance to the mainstreaming of equality Law but there seems to be no real political and non-discrimination in other areas of law. - tion for some of these provisions in order to The Law on the Prohibition of Discrimina- willensure to evaluateequality thefor all.success The Law and onthe the justifica Prohi- tion has proved to be useful for litigation. Al- though the number of cases is still low, they of different treatment could be used to evalu- have brought the issue of discrimination to atebition these of Discriminationpolicies, but so fartest this for has justification not been the attention of policy makers and led to the discussed or considered. Nor have these pro- development of new policies to address ine- visions been tested in litigation. The same problem exists in respect of quotas in other have shown the enormous potential of litiga- power-sharing mechanisms which follow the tionqualities. of discrimination More importantly, cases. these first cases same logic of the provisions already found to be discriminatory by the ECtHR. There are many provisions in the legal system of BaH which aim to ensure equality but Equality of all persons and groups in a le- there seems to be no coordination or consist- gal system is an important goal for every ency between them. As seen in some of the society. The experience of BaH shows how examples in the area of power-sharing, this hard it is to regulate equality through uncoordinated approach has led to discrimi- quotas and preferential treatment, in par- nation against certain groups, and BaH is one ticular if policy makers, when focusing on of the countries in which the Constitution group rights, fail to recognise the needs of still openly discriminates against minorities. other minority groups. Much more is needed to achieve equality and 9. Conclusions to eradicate discrimination. The current approach seems to be more reactive than pro- The Law on the Prohibition of Discrimina- active. There are no institutional initiatives tion has opened a new chapter in the area which would assess equality and the preva- of equality and non-discrimination in BaH. lence of discriminatory practices in the coun- It has subsumed all of the standards which try and no data is collected and published on were developed over the years in compara- cases of discrimination. tive law and could been seen as a beacon in the legal system of BaH when it comes to fu- One of the possible initiatives would be the ture legislative developments. adoption of an overall equality and non- discrimination action plan which would One lesson from the law-drafting process is address the current challenges and estab- that without a strong conditionality imposed lish a strategic and coordinated approach. by the European Union to regulate the area There are already some good initiatives in

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this regard such as the Gender Action Plan mainstreamed. It will therefore be inter- of Bosnia and Herzegovina87 and the Action esting to monitor the follow-up to the Con- Plans which aim to address the problems clusions made by the Joint Committee on faced by the Roma,88 which have adopted Human Rights, Rights of Children, Youth, a proactive approach, but an overarching Immigration, Refugees, Asylum and Ethics strategic document is still missing. With- relating to the harmonisation of laws with out such a document, different initiative the Law on the Prohibition of Discrimina- might remain uncoordinated and equal- tion and the adoption of an anti-discrimi- ity and non-discrimination would not be nation action plan.

European human rights standards at the Gender Equality Agency of Bosnia and Herzegovina. He has extensive research1 Adnan experience Kadribašić in the MA area is a legalof anti-discrimination advisor for harmonisation policies and of domestic human rights legislation in BaH. with He thehas internationalpublished and commentaries, drafted new policies, conducted training and provided consultancy services on anti-discrimination law. He is a member of the editorial board of the International Journal of Rule of Law, Transitional Justice and Human Rights.

Herzegovina are Bosniaks (48%), Serbs (37.1%), Croats (14.3%) and others 0.6%, including Jews, Roma and Albanians.2 In the Source: absence Central of an official Intelligence census, Agency, according The Worldto some Factbook estimates,, 17 mainJanuary ethnic 2013. groups living in Bosnia and 3 The General Framework Agreement for Peace in Bosnia and Herzegovina, available at: http://www.ohr.int/ dpa/default.asp?content_id=379. 4 UNDP in BaH, Social Inclusion in Bosnia and Herzegovina, Human Development Report, UNDP 2007. 5 Open Society Fund Bosnia and Herzegovina, Report on the Public Perception and Experience with Discrimination, 2012. governments which are also composed of other sub-levels of local self-government – cantons and municipalities in FBaH6 Althougand municipalitiesh there is no in definition RS. of what “entity“ means, in practice the entities are the two regional 7 The Preamble explicitly refers to the Universal Declaration of Human Rights, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. 8 Constitution of BaH, Article II/2, which states: “The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.” 9 Ibid., Article II/3. 10 Ibid., Article II/2. 11 Ibid. and Constitutional Court of BaH, Appellant Sulejman Tihic, U 4/04, Para 110 et seq. 12 Annex I lists the following documents: 1948 Convention on the Prevention and Punishment of the Crime

Protocols I-II thereto; 1951 Convention relating to the Status of Refugees and the 1966 Protocol thereto; 1957 Conventionof Genocide; on 1949 the GenevaNationality Conventions of Married I-IV Women; on the 1961Protection Convention of the Victimson the Reduction of Conflict, of and Statelessness; the 1977 Geneva 1965 International Convention on the Elimination of All Forms of Racial Discrimination; 1966 International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols thereto; 1966 Covenant on Economic, Social and Cultural Rights; 1979 Convention on the Elimination of All Forms of Discrimination against Women; 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; 1987 European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; 1989 Convention on the Rights of the Child; 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; 1992 European Charter for Regional or Minority Languages; 1994 Framework

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Convention for the Protection of National Minorities. 13 See, for example, Case AP-1093/07 the Constitutional Court referring to the Belgium linguistic case, 23 July 1968, Series A, No. 6 (1979-1980). 14 Constitutional Court of BaH, Appellant Sejfudin Tokic, U 44/01 -1, Para 45. 15 See above, note 8, Article IV/1. 16 Ibid., Article V: Presidency. 17 Sejdić and Finci v Bosnia and Herzegovina, ECHR, Applications Nos 27996/06 and 34836/06. The claimants alleged that the provisions violated their rights under Articles 3, 13 and 14 ECHR, Article 3 of Protocol No. 1 to the ECHR and Article 1 of Protocol No. 12 to the ECHR. 18 Ibid., Grand Chamber Decision of 22 December 2009. 19 Law in place as at 9 January 2013. 20 These could be found in labour laws, criminal codes, public broadcasting laws, etc. 21 Law on Gender Equality in Bosnia and Herzegovina, Official Gazette of BaH, No. 16/03 and 102/09. 22 Law on the Rights of National Minorities, Official Gazette of BaH, No. 12/03. 23 Law on the Rights of Veterans and their Families in the Federation of BaH, Official Gazette of BaH, No. 33/04 and 56/05.

25 , Article 4. 24 UnifiedIbid. text of the Law on Gender Equality in Bosnia and Herzegovina, Articles 10-21. 26 Ibid., Article 29: “A person who, on grounds of sex, commits violence, harassment or sexual harassment that

endanger someone’s wellbeing, mental health or bodily integrity shall be punished with a fine or imprisonment for 27 Article 19 of the Law mentions judicial protection but it is unclear what procedures would apply. a term of six months to five years.” 28 The Starting Line Group was a coalition of more than 400 non-governmental actors, from across the

29 The Draft Law is available in local languages at: http://www.bh-hchr.org/Saopstenja/Nacrt_zakona.pdf. European Union, advocating for the adoption of EU directives in the field of non-discrimination. 30 Draft laws are usually developed by the Council of Ministers and proposed to the Parliamentary Assembly and in most cases ministries of the Council of Ministers are designated to monitor the implementation of laws. 31 The expert working group included members from the Ministry only and the author provided advisory and technical support to the group. 32 The working group decided to entitle the Law “Law on the Prohibition of Discrimination“. 33 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. 34 Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. 35 Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). 36 This requirement was part of the “Visa Liberalisation with Bosnia and Herzegovina Roadmap” put forward by the EU to the BaH authorities in order to allow visa free travel regime for BaH citizens. 37 Council of Ministers, Minutes from the 74th session held on 19 January 2009. 38 Council of Ministers of BaH, 82nd Session held on 1 April 2009. 39 Balkan Insight, “Bosnia’s Religions Unite Against Gay Marriages”, 3 June 2009. 40 House of Peoples, Transcript of the 30th Session, 15 June 2009, delegate Mr Bozo Rajic, p. 20. 41 Ibid., delegate Ms Alma Colo, p. 21.

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42 Made by the party “Croatian Democratic Community”. 43 Amendments proposed by the members of the Croatian Democratic Party of BaH (HDZ BaH) to the House of Representatives, The Joint Committee on Human Rights, Rights of Children, Youth, Immigration, Refugees, Asylum and Ethics and the Constitutional Committee of the House of Representatives of the Parliamentary Assembly of BaH, 10 June 2009. 44 E.g. the Criminal Code of BaH, Article 145, began in these words: “Who on the ground of differences in race, skin colour, national or ethnic background, religion, political or other belief, sex, sexual orientation, language, education or social status or social origins, denies or restricts the civil rights as provided by the Constitution of

Bosnia and Herzegovina or general act of Bosnia and Herzegovina or, whoever on the ground of these differences Bosnia and Herzegovina, ratified international agreement, law of Bosnia and Herzegovina, some other regulation of 45 The Joint Committee on Human Rights, Rights of Children, Youth, Immigration, Refugees, Asylum and Ethics, or background or other status grants unjustified privileges or does unjustified favours to individuals...” Minutes, 26th Session held on 6 July 2009. 46 House of Representatives, Minutes from the 33rd and 57th sessions of the House of Peoples. 47 Article 5 of the Draft Law, probably referring to the entity laws: Family Law of Federation of BaH and the Family Law of RS. 48 Bosnia and Herzegovina has an extremely decentralised legal system and 14 legislatures are competent to regulate certain rights. 49 The case in question concerned a failure by a primary school in Mostar to include a child with intellectual impairments into regular classes, although all medical examinations showed that this would have a positive impact on his development. 50 See above, note 8. 51 The professional consensus on sets of standards in the area of equality and non-discrimination among human rights and equalityDeclaration experts. See of PrinciplesThe Equal onRights Equality, Trust, although Declaration not aof source Principles of international on Equality, law,London reflects 2008. a moral and 52 See above, note 24, Article 29. 53 Fourth and Fifth Periodic CEDAW Reports of Bosnia and Herzegovina, May 2011. purpose or effect to disable or endanger recognition, enjoyment or realization, of rights and freedoms in all areas of54 public Law life”. on the Prohibition of Discrimination, Article 2, which defines the scope of discrimination: “with a 55 Ibid., Article 1 – General prohibition of discrimination: “The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 56 A recent Constitutional Court of BaH decision (case U 12/09) found discrimination in respect of differential access to parental leave pay for women from different parts of BaH employed in state institutions, contrary to the Convention on the Elimination of All Forms of Discrimination against Women and the Law on Gender Equality in BaH. This case concerned a new piece of legislation which regulated the right to maternity leave with pay for civil servants employed at state-level institutions which resulted in different treatment for women, depending on the entity in which they resided. 57 See above, note 54, Article 6: “...in all spheres, especially: employment, membership in professional organisations, education, training, housing, health, social protection, goods and services designated for the public, and public places together with performing economic activities and public services.“ 58 Ibid., Article 5: “Legal measures and actions shall not be considered discriminatory when reduced to

Following measures shall not be considered discriminatory if they realise a legitimate goal and if there is a reasonableunfavourable relation distinction ratio orof proportionalitydifferent treatment between if they means are based used on and objective goals to and be achieved...” reasonable justification. 59 Ibid., Para 2: “a) They come out of implementation or adoption of temporary special measures designed to prevent or compensate damages that persons suffer and on grounds given in Article 2, especially members of vulnerable groups, such as persons with disabilities, members of national minorities, women, pregnant women, children,

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youth, elderly and other socially excluded persons, civilian victims of war, victims in criminal proceedings, displaced persons, refugees and asylum seekers; i.e. to enable their full participation in all spheres of life; b) They are based on features related to grounds given in Article 2 of this Law, when in limited circumstances, due to the nature of concrete professional activities or context in which these are conducted, such features represent a genuine and determining requirement in terms of choice of occupation. This exception shall be a subject to occasional examinations; c) They are based on distinction, exclusion or preference in relation to employment as a staff member of an institution that is made in compliance with doctrines, basic presumptions, dogmas, beliefs or learning of actual confessions or religions, ensuring that every distinction, exclusion or preference is made consciously in order not to hurt religious feelings of members of that confession or religion;

as a condition for retirement; d) They define maximum age as the most appropriate for terminating a working relationship and determine age e) They are based on citizenship in a way prescribed by law; f) They are based on the realisation of reasonable accommodation aiming to ensure the principle of equal treatment in relation to persons with disabilities. Employers shall, based on needs in a concrete case, take appropriate measures, in order to enable a person with disability to access, participate or to be promoted, e.g. to participate in training, if such measures do not represent an unreasonable burden for the employer;

protectiong) Putting of in public a less morals, favourable along position with favouring while defining marriage rights in accordance and obligations with inprovisions the family of provided family law. by law, especially in order to protect the rights and interests of children, which has to be justified with legitimate purpose, h) When establishing an employment relationship, membership, or taking actions that are in compliance with preaching or operating of registered churches and religious communities in BaH, or other public or private organisations working in accordance with the Constitution and laws, if demanded by religious doctrines, beliefs or goals.” 60 Ibid., Para 2(g). 61 In particular the right to marry, right to adopt and right to inherit.

a child can be adopted only by married couples and couples which cohabitate, and a single parent (regardless of their62 sexualIn BaH orientation) family law, marriage can only andobtain cohabitation custody over are a defined child (incomplete as a “union adoption). between a woman and a man”. Similarly, 63 E.B. v France [2008] ECHR 43546/02, 22 January 2008. Assessment of the Implementation of the Law on the Prohibition of Discrimination in Bosnia and Herzegovina, USAID Parliamentary Support Program, 2012. 64 Kadribašić, A., 65 The courts’ capacity improved when the judicial academies included a two-day module on the Law on a yearly basis. 66 This case concerned two schools operating in the same building. One school was attended by ethnic Croats and the other by ethnic Bosniak children. The court found that the schools’ policies to separate children by having them attend different classes as well as manipulating school breaks so as to make it impossible for ethnically different children to ever meet constituted ethnic segregation and ordered the schools to change this practice. 67 See above, note 5. 68 Law on the Ombudsman for Human Rights of Bosnia and Herzegovina, Official Gazette of BaH, Nos. 19/02 and 32/06. 69 General Assembly of the United Nations, Principles relating to the Status of National Institutions (The Paris Principles), Resolution 48/134 of 20 December 1993. 70 European Commission against Racism and Intolerance, General policy recommendation No. 2 on specialised bodies to combat racism, xenophobia, anti-Semitism and intolerance at national level, adopted on 13 June 1997. 71 Institution of the Ombudsman for Human Rights of Bosnia and Herzegovina, Report on the manifestations of discrimination, February 2011. The Ombudsman in the System of Protection against Discrimination in BiH: Situation analysis and characteristic problems, Analitika, Sarajevo, 2012. 72 Hanusić, A.,

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Commentary to the Law on the Prohibition of Discrimination, Human Rights Centre of the University of Sarajevo, 2010. 73 Vehabović, F., Kadribašić, A. and Izmirlija, M., 74 See above, note 64. 75 Joint Committee on Human Rights, Rights of Children, Youth, Immigration, Refugees, Asylum and Ethics, Minutes of the 19th Session held on the 17 January 2013. 76 For example, war veterans and members of their families, the unemployed, members of constituent peoples, etc. 77 See Preamble to the Constitution of BaH which contains the phrase: “Bosniaks, Croats, and Serbs, as constituent peoples (along with others), and citizens of Bosnia and Herzegovina”. 78 A model form of democracy, developed by the Swedish political scientist Arend Lijphart (b. 1936), according to which many nations can coexist peacefully under one state. It is also known as “consociationalism”. Note,

Herzegovina. however, that “consociationalism” was never recognised as the official model of democracy in Bosnia and 79 Theodor, H., Antoine, M., Hinrich, R. (eds.), La société de concordance, approche comparative, Actes du

Beyrouth, Libr. orientale, 1986, pp. 23-24. Symposium organisé par le Goethe-Institut sur “La régulation démocratique des conflits dans les sociétés plurales”, 80 Arendt, L. “Consociational democracy: The examples of Belgium and the Netherlands”, in Theodor, H., Antoine, M., Hinrich (eds.), above note 79, p. 40. 81 See above, note 17. 82 See above, note 68, Article 8. 83 Law on the Civil Service in the administrative bodies of Brcko District, Article 26. 84 Kalanke v Freie Hansestadt Bremen, ECJ, C-450/93 [1995] ECR I-305. 85 Marschall v Land Nordrhein-Westfalen, ECJ, C-409/95 [1997] ECR I-636. 86 Abrahamsson v Fogelqvist, ECJ, C-407/98 [2000] ECR I-5539. 87 Council of Ministers of BaH, Gender Action Plan of Bosnia and Herzegovina, 2006. 88 Council of Ministers of BaH, Action Plan for Roma, 2008.

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“Only when both sex and gender are seen as continua (which do not necessarily run parallel to each other), we can hope for the acceptance of people with non-normative bodies, desires, or social roles.”

Saskia E. Wieringa

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The Legal Recognition of Same-Sex Couples in Europe and the Role of the European Court of Human Rights

Jens M. Scherpe1

I. Introduction – It’s Been a Long Road...

The legal regulation of family relationships same-sex couples in an increasing number has long been formulated around a “tradi- of jurisdictions, and in others, a form of reg- tional” notion of the family as a unit com- istered partnership is available or de facto prising a heterosexual married couple who relationships of same-sex couples are rec- conceive children within wedlock. This has ognised. But even in Europe, particularly in resulted in the protection mechanisms of the Eastern and South-Eastern Europe, there law focusing on such family units, with other are still many jurisdictions where there is no family forms such as, for example, same-sex legal recognition of same-sex relationships. couples, unmarried couples, couples who are However, in Schalk and Kopf v Austria2 the unable to conceive naturally and single par- European Court of Human Rights (ECtHR) ents failing to have their family relationships recognised that same-sex couples enjoy the adequately recognised and protected in law. right to “respect for family life” protected This often included, at least initially, not rec- by Article 8 of the ECHR, and this article ar- ognising “non-traditional” families’ rights to gues that this mandates some form of legal respect for their family life under Article 8 of recognition of same-sex relationships by all the Convention for the Protection of Human contracting states of the ECHR and paves Rights and Fundamental Freedoms (ECHR). the way for equality in the family realm for However, in recent decades there has been same-sex couples. progress in dispelling the traditional notion of the family and in adapting the law to the II. Legal Recognition through Legislation modern realities of family life. One example and Litigation – Europe and Beyond of such progress in motion relates to the legal status of homosexual couples in Europe, Legal recognition of same-sex relation- which is the focus of this article. ships3 in Europe began in the Nordic Coun- tries.4 In 1987, de facto/cohabitation rela- Until the end of the 1980s there was simply tionships of same-sex couples were given no legal recognition of same-sex relation- a similar legal status to those of opposite- ships in the European jurisdictions. That this sex couples in Sweden.5 However, at the has changed is, to a large extent, due to the same time, it was not felt that there was a effort and persistence of many organisations need (or an opportunity) for a formalisa- and individuals. Today, marriage is open to tion of those relationships.6 A “legal quan-

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tum leap” followed in 1989 with the intro- tered partnership for same-sex couples, duction of the registered partnership for and in Croatia recognition of a de facto same-sex couples in Denmark.7 Other ju- union is possible. risdictions gradually followed Denmark’s lead, although the legal rules and technical Europe is not unique on this issue. Outside approach of the registered partnership re- of Europe, there is similar diversity in the gimes that were introduced differed (and recognition of same-sex relationships. In still differ) significantly from jurisdiction the Americas, for example, Canada (2005),15 to jurisdiction. The next step in this legal Argentina (2010),16 several US states17 and evolution was the opening up of marriage Mexico City (2010) and the Mexican state of in a number of jurisdictions, of which the Quintana Roo (2011) allow same-sex mar- Netherlands was the first in 2001,8 fol- riages, and in many other jurisdictions reg- lowed by Belgium (2003),9 Spain (2005),10 istered partnerships are possible. However, Norway (2009),11 Sweden (2009),12 Iceland at the same time several jurisdictions have (2010)13 and Portugal (2010).14 changed their statutes and constitutions to the effect that marriage is only possible be- However, in many European countries, tween a man and a woman, thus precluding particularly in Eastern Europe, but also, same-sex marriages. for example, in Greece and Italy, there is strong opposition to the legal recognition It is interesting to note that in the European of same-sex relationships. Interestingly, jurisdictions18 the broader legal recognition the traditional “dividing lines” of family of same-sex couples was generally brought law no longer seem to apply. It no longer about through legislation, as a result of the ef- seems possible to distinguish between the forts of organisations and political parties.19 progressive North and conservative South By contrast, outside of Europe, litigation as, for example, Spain and Portugal have based on constitutional and human rights opened up marriage to same-sex couples. was, more often than not, the way legal rec- Likewise, a division which is based upon ognition of same-sex couples was effected, the predominant religious affiliation in as, for example, in many US states and also a given country, i.e. between somewhat in Brazil,20 Canada,21 Columbia,22 and South more liberal Protestant and more con- Africa.23 Here, individual litigants (usually servative Catholic countries, does not supported by organisations), played a pivot- seem appropriate any more. Apart from al role. In European jurisdictions where the Spain and Portugal (as mentioned above), legislative route has not fostered progress countries like Belgium (which also per- and there is still no or incomplete recogni- mits marriage of same-sex couples) and tion of same-sex couples, litigation based on the Republic of Ireland (having recently national constitutions and the ECHR can, and introduced civil partnership for same-sex presumably will, be utilised to bring about couples) invalidate such a division along legal reform.24 religious lines. If there is such a thing as a dividing line in Europe then, today, it III. Different Forms of Recognition is really located between East and West, although one should not forget that, for The approach to the legal recognition of example, Hungary, Slovenia and the Czech same-sex couples taken by the various Eu- Republic have introduced a form of regis- ropean jurisdictions that have provided such

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recognition can be broadly split into three 1. “Inferior” Relationship? categories: regimes in which provision for formal recognition of same-sex relationships In many jurisdictions same-sex relationships is “inferior” to marriage; those in which it were deemed to be fundamentally different is more or less “functionally equivalent” to from opposite-sex relationships and in some marriage, i.e. marriage by a different name; ways “inferior”. Consequently, when a legal and those in which marriage is available to framework for same-sex couples was intro- same-sex as well as opposite-sex couples. duced, the structure looked as follows:

Opposite-sex relationship Same-sex relationship Marriage Registered partnership Informal relationship

The differential treatment is apparent: being discriminated against because the al- same-sex couples cannot marry and the legal ternative to marriage, the “inferior” legal framework which is open to them is not of framework, is not open to them. This “prob- the same “quality” as marriage that is avail- lem” was pre-empted, for example, in France able for opposite-sex couples. Moreover, this and also originally in the Netherlands and approach is also vulnerable to challenge Belgium by the new legal regime also being from opposite-sex couples who – with a good open to opposite-sex couples.25 The struc- chance of success – could claim that they are ture then looks as follows:

Opposite-sex relationship Same-sex relationship Marriage Registered partnership Informal relationship

Here the differential treatment of same-sex 2. Functional Equivalent couples is still blatantly obvious, as opposite-sex couples can choose between two If registered partnership is designed to be ways to formalise their relationship whereas the functional equivalent27 of marriage, the same-sex couples have only one option. The structure looks like this: Netherlands and Belgium therefore later also opened up marriage to same-sex couples.26

Opposite-sex relationship Same-sex relationship Marriage Registered partnership Informal relationship

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If (and only if) the legal rules are indeed the a form of registered partnership. Despite same,28 the only remaining difference is the the name, what is being offered by the state name of the legal construct. This might ap- through marriage is merely a legal frame- - work. Everything that extends beyond the le- cance and thus fall beyond the law because, gal framework is cultural and social and thus pear to be a difference without legal signifi also beyond immediate state regulation (al- such. But it does have an immense social and though admittedly the state’s legal rules can, culturalat first glance, content. a name “Marriage” has no legalis much content more as and will, have an impact upon the social and than a mere legal construct. Societal tradi- cultural perception of the institution). tions and expectations are associated with marriage – not all of which are necessarily In any event, the legal framework of marriage positive. Thus, for some couples, irrespective of their genders, it would be unthinkable to Each and every reform of that legal frame- enter into a marriage, because for them, mar- workhas changed has been significantly accompanied over by the fears centuries. that the riage represents the subjugation of women new law would change (or even destroy) the and male domination. For others, marriage “nature” of marriage forever, whatever that is the ultimate social commitment to another is deemed to be. But the institution of mar- person. In any event, it is apparent that the riage has survived all these changes. term “marriage” is much more than a mere name – and that therefore, ultimately, a name For example, one of those changes was the is legally relevant after all.29 introduction of divorce; another, some time later, the right to remarry after divorce. 3. To Marriage via Registered Partnership? Some religious denominations still do not recognise second marriages or even divorce, In some jurisdictions, for example in Den- and the same applies to other marriage remark,30 Iceland, Norway and Sweden, these strictions that no longer apply in the laws considerations have led to marriage being of most countries. While the religious de- opened up to same-sex couples (and, at the nominations of the individuals who wish to same time, registered partnership being marry are of no relevance for the state, they abolished), even though a functionally equiv- remain of central importance to some faith alent legal regime was already available to groups. However, the state does not impose same-sex couples. The view was taken in a duty to celebrate the marriages of divor- these jurisdictions that there was simply no cees or persons of another religious faith longer any legally relevant reason for having upon these religious groups. Similarly, where two separate legal regimes. Thus, opening up same-sex marriages have been introduced, it has been left to individual faith groups to logical step. This step is now being contem- decide whether they wish to celebrate same- platedmarriage in Franceto same-sex31 and couplesthe United was Kingdom the final,32 sex marriages in their congregations or not.34 and debated in Germany.33 So notwithstanding the legal possibility of divorce and remarriage, there is scope for oth- In many jurisdictions, registered partner- er concepts and understandings of marriage ships were already legally “like a marriage”. to be accommodated alongside the state law. But the converse was of course also true, as it actually is in all jurisdictions around the It is a fundamental value of modern democ- world: marriage in the end is nothing but racy that faith groups should not be forced

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to recognise and celebrate marriages that sue of discrimination on grounds of sexual contradict their religious beliefs. However, orientation in its ruling in Dudgeon v United the legal framework of marriage provided Kingdom,36 in which it required evidence of - “particularly serious reasons” to justify dif- nite view of what is the “right kind of mar- ferential treatment based on sexual orienta- riage”by the stateupon doeseveryone. not intend The marriageto impose framea defi- tion. The Court has continued to apply this work solely deals with state recognition of strict test in its case-law on the issue since.37 relationships and their legal consequences However, whether same-sex couples as such and leaves it to individuals and social groups also enjoyed the protection of their right to where they want to make use of it.35 respect for private and family life under Ar- ticle 8 for a long time was unclear. But without such a legal framework it is not only legal recognition which is lacking, but 1. Private Life also another fundamental element of freedom: the freedom to choose this framework In Niemietz v Germany the ECtHR expressly for oneself and one’s partner – or not to choose it, as the case may be. Allowing eve- it would be neither possible nor necessary ryone this freedom does not, in any way, in- torefused do so. to38 But define the privateCourt in life, a later stating decision that fringe anyone else’s freedom or understand- made clear that the right to respect for pri- ing of marriage. Hence it should be open to vate life certainly comprises the right to the state to extend the legal framework of establish and develop relationships with marriage to include same-sex couples. other human beings.39 In Bensaid v United Kingdom IV. The Role of the European Court of Hu- sexual orientation and sexual life” were held man Rights in Developing the Legal Rec- to be protected, “gender by identification,Article 8 of the name ECHR and as ognition of Same-sex Couples part of “private life”.40 Concerning same-sex relationships, the ECtHR stated in the case As explained above, where same-sex cou- of Mata Estevez v Spain: ples were legally recognised on a broader scale, in Europe this generally happened “With regard to private life, the Court through legislation rather than litigation, acknowledges that the applicant’s emotion- notwithstanding successful litigation real and sexual relationship related to his pri- - vate life within the meaning of Article 8 § 1 sion to tenancies, etc. Here the litigants ofof the Convention.”41 tengarding relied specific on non-discrimination issues such as the and succes equality provisions in national constitutions and Thus the ECtHR held that a same-sex rela- statutes, but also on Article 14 of the ECHR. tionship, whether formalised or “merely” de Article 14 prohibits discrimination against facto, without any doubt could be protected a person on the ground of a personal char- by the right to respect for private life under acteristic, in their exercise of other Conven- Article 8 ECHR. However, with regard to tion rights, including the right to respect “family life” the Court sent an equally clear for family life under Article 8 ECHR. While message in Mata Estevez: Article 14 does not list sexual orientation explicitly as one of the protected grounds, “As regards establishing whether the the Court took a strict position on the is- decision in question concerns the sphere of

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‘family life’ within the meaning of Article 8 differently from other same-sex relation- § 1 of the Convention, the Court reiterates that, according to the established case-law of the Convention institutions, long-term Theships ECtHR without did sufficient not agree: justification. homosexual relationships between two men do not fall within the scope of the right to re- “The Grand Chamber commences by spect for family life protected by Article 8 of remarking that the relationship between the Convention (...) The Court considers that, siblings is qualitatively of a different na- despite the growing tendency in a number ture to that between married couples and of European States towards the legal and ju- homosexual civil partners under the United dicial recognition of stable de facto partner- Kingdom’s Civil Partnership Act. The very ships between homosexuals, this is, given the essence of the connection between siblings existence of little common ground between - the Contracting States, an area in which they ing characteristics of a marriage or Civil still enjoy a wide margin of appreciation.”42 Partnershipis consanguinity, Act union whereas is that one it ofis forbiddenthe defin to close family members (…) The fact that However, it needs to be noted that the case in the applicants have chosen to live together question concerned a de facto same-sex re- all their adult lives, as do many married and lationship and not a formalised relationship Civil Partnership Act couples, does not alter between persons of the same sex such as a this essential difference between the two registered partnership or indeed a marriage. types of relationship.”45 Hence the question as to whether formalised same-sex relationships could be considered Interestingly, the Court went on to discuss to have “family life” and thus enjoy this pro- the distinction between formalised family tection under Article 8 ECHR as well was not relationships and de facto ones: answered in the case. Furthermore, Mata Es- tevez was merely a decision on admissibility “Moreover, the Grand Chamber notes and therefore this matter had not yet been that it has already held that marriage confers considered by the Court in full. a special status on those who enter into it. The exercise of the right to marry is protected 2. Family Life by Article 12 of the Convention and gives rise to social, personal and legal consequences. The opportunity to consider whether same- sex couples have “family life” arose in the Since the coming into force of the Civil Part- somewhat unusual case of Burden v United nership Act in the United Kingdom, a ho- Kingdom.43 In the case two spinster sisters mosexual couple now also has the choice to claimed that they were being discriminated enter into a legal relationship designed by against as they were in a situation analogous Parliament to correspond as far as possible to a civil partnership but were precluded to marriage. from entering into a civil partnership because they were sisters.44 This prevented As with marriage, the Grand Chamber con- - siders that the legal consequences of civil itance tax bonuses available to civil partners. partnership under the 2004 Act, which cou- Theythem thereforefrom benefitting argued thatfrom they the weresame treated inher ples expressly and deliberately decide to

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incur, set these types of relationship apart Schalk and Mr Kopf claimed that they were from other forms of co-habitation. Rather discriminated against because they were than the length or the supportive nature of denied the opportunity to marry or have the relationship, what is determinative is the their relationship otherwise recognised existence of a public undertaking, carrying with it a body of rights and obligations of a took their case to the Austrian courts the contractual nature. Just as there can be no Eingetrageneby law in Austria. Partnerschafts-Gesetz When the couple (Reg first- analogy between married and Civil Partner- istered Partnership Act)49 of 2009 had not ship Act couples, on one hand, and hetero- been enacted. The Eingetragene Partner- sexual or homosexual couples who choose to schaft allows same-sex couples to formal- live together but not to become husband and ise their relationship, but the legal effects wife or civil partners, on the other hand (…), of this formalisation were and still are dif- the absence of such a legally binding agree- ferent from those of marriage, in a number ment between the applicants renders their of ways.50 Still, this meant that by the time relationship of co-habitation, despite its long the ECtHR heard the case, Mr Schalk and duration, fundamentally different to that of a Mr Kopf actually could have their relation- married or civil partnership couple.”46 ship formalised in Austria, but “merely” as Eingetragene Partnerschaft and that mar- The Court therefore drew a clear dividing riage still was not open to them in Austria. line between formalised and de facto relationships and in doing so equated marriage and civil partnership. This position was later their right to marry, enshrined in Article 12 Courten v United Kingdom: ECHR,The first was complaint violated. of theThey applicants argued wasthat thatthe usage of the terms “men and women” in the confirmed“The inCour t would note that while the Article did not imply that men and women Grand Chamber equated civil partnerships merely have the right to marry someone of between homosexual couples with marriage the opposite sex, but that the provision could this was on the basis that in both situations and should be interpreted more widely to the parties had undertaken public and bind- comprise the right to marry a person of the ing obligations towards each other.”47 same sex.51 The Austrian government (supported by an intervention of the government Hence in the eyes of the ECtHR opposite-sex of the United Kingdom) argued that “the marriage and same-sex civil partnership are right to marry was by its very nature limited to be considered the same type of relation- to different-sex couples”,52 and while some ship. Since a married couple undoubtedly contracting states had allowed same-sex enjoy “family life”, equating marriage with marriages, there was no European consen- civil partnership inevitably had to mean sus on the matter.53 The applicants, support- that civil partners do, too. But there was no ed by third-party interventions by the Fédé- express statement to that effect in either ration Internationale des ligues des Droits de Burden or Courten. l’Homme, the International Commission of Jurists, the AIRE Centre (Advice on Individu- The question as to whether same-sex cou- al Rights in Europe) and ILGA-Europe (Euro- pean Region of the International Lesbian and in Schalk and Kopf v Austria.48 In this case Mr Gay Association), argued that: ples have “family life” was finally resolved

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“[I]n today’s society civil marriage was ally sensitive areas, and particularly family a union of two persons which encompassed law.56 Nevertheless it is remarkable that the all aspects of their lives, while the procrea- Court apparently had no doubts about the tion and education of children was no longer matter falling within the ambit of Article a decisive element. As the institution of mar- 12,57 which, after all, not merely comprises riage had undergone considerable changes the right to marry, but also the right to found there was no longer any reason to refuse a family. same-sex couples access to marriage. The wording of Article 12 did not necessarily The second complaint of the applicants was have to be read in the sense that men and raised under Article 14 taken in conjunction women only had the right to marry a person with Article 8 of the Convention, namely that of the opposite sex. Furthermore, the appli- they were discriminated against on account cants considered that the reference in Article of their sexual orientation. The argument 12 to ‘the relevant national laws’ could not was twofold, namely that unlike opposite- mean that States were given unlimited dis- sex couples they could not have had their cretion in regulating the right to marry.”54 relationship recognised by law before the introduction of the Eingetragene Partnerschaft, In its decision the Court conceded that in and that, in any event, the remaining differ- the light of recent developments the right ences between marriage and the legal re- to marry enshrined in Article 12 cannot “in gime now open to them was discriminatory.58 all circumstances be limited to marriage be- Interestingly, the Austrian government not tween two persons of the opposite sex” and only conceded that Article 14 in conjunction it consequently could not “be said that Arti- with Article 8 applied as the Court had so far cle 12 is inapplicable to the applicants’ com- ruled that same-sex couples can have “pri- plaint”. But the decision on whether or not to vate life”, but also that “there might be good allow same-sex marriage was to be left to the reasons to include a relationship of a same- individual contracting states, and the Court sex couple living together in the scope for therefore unanimously held that there was ‘family life’”, with which the United Kingdom no violation of Article 12 because the appli- government agreed.59 The non-governmen- cants were not allowed to marry. The Court’s tal organisations in their joint comments ex- central argument was that: pressly pleaded that the Court should rule on this issue, and it did with remarkable clarity: “[M]arriage has deep-rooted social and cultural connotations which may differ large- “[T]he Court’s case-law has only accept- ly from one society to another. The Court reed that the emotional and sexual relationship iterates that it must not rush to substitute its of a same-sex couple constitutes ‘private life’ own judgment in place of that of the national but has not found that it constitutes ‘family authorities, who are best placed to assess life’, even where a long-term relationship of and respond to the needs of society.”55 cohabiting partners was at stake. In coming to that conclusion, the Court observed that That the Court found that there was no ob- despite the growing tendency in a number ligation of the contracting states to allow of European States towards the legal and ju- same-sex marriage was hardly a surprise, dicial recognition of stable de facto partner- as it is perfectly in line with the cautious ap- ships between homosexuals, given the exist- proach the Court takes in socially and cultur- ence of little common ground between the

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Contracting States, this was an area in which rejected, they actually won a decisive and they still enjoyed a wide margin of apprecia- fundamentally important victory. The de- tion (see Mata Estevez v. Spain (…)). In the cision undoubtedly is a landmark for the case of Karner (...), concerning the succes- rights of same-sex couples and as such will sion of a same-sex couples’ surviving partner - to the deceased’s tenancy rights, which fell opment of European family law. Because under the notion of ‘home’, the Court explic- same-sexhave significant couples impact are now on thedeemed future to devel have itly left open the question whether the case “family life” and thus are protected by Arti- also concerned the applicant’s ‘private and cle 8 ECHR, the decision essentially obliges family life’. contracting states to provide at least some form of legal framework, some form of legal The Court notes that since 2001, when the recognition for same-sex couples and their decision in Mata Estevez was given, a rapid family life. Crucially, every differential treat- evolution of social attitudes towards same- ment of same-sex and opposite-sex couples sex couples has taken place in many member is now subject to the Court’s scrutiny to a States. Since then a considerable number much greater extent. As already mentioned of member States have afforded legal rec- above,62 it has long been established in case ognition to same-sex couples (…). Certain law that now all contracting states must have particularly serious reasons for a differential tendency to include same-sex couples in the treatment based on sexual orientation. The notionprovisions of ‘family’. of EU law also reflect a growing Court has consistently held that:

In view of this evolution the Court consid- “[A] difference in treatment is discriminatory if it has no objective and rea- contrast to a different-sex couple, a same-sex sonable justification, that is, if it does not coupleers it artificial cannot enjoyto maintain ‘family the life’ view for the that, pur in- pursue a legitimate aim or if there is not a poses of Article 8. Consequently the relation- reasonable relationship of proportionality ship of the applicants, a cohabiting same-sex between the means employed and the aim couple living in a stable de facto partnership, sought to be realised.”63 falls within the notion of ‘family life’, just as the relationship of a different-sex couple in the same situation would.”60 same-sex and opposite-sex couples differ- entlyGenerally was the the policy “justification” aim of protecting for treating the Thus the Court – while dismissing the com- “traditional” family, and the Court accepts plaints in the following paragraphs61 – ex- that this in principle still is a valid aim. pressly departed from its previous position However, the Court has made very clear in in Mata Estevez and now fully accepted that Karner that: same-sex couples enjoy the right to respect for their family life. “[The] aim of protecting the family in the traditional sense is rather abstract V. The Way Forward: Step by Step towards and a broad variety of concrete measures Equality may be used to implement it. In cases in which the margin of appreciation afforded While Mr Schalk and Mr Kopf nominally to States is narrow, as is the position where “lost” their case as their complaints were there is a difference in treatment based on

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sex or sexual orientation, the principle of ential treatment of same-sex couples and proportionality does not merely require opposite-sex couples in the future in na- that the measure chosen is in principle tional courts and ultimately in the ECtHR. suited for realising the aim sought. It must The German experience is an excellent ex- also be shown that it was necessary in or- ample for this. The German eingetragene der to achieve that aim to exclude certain Lebenspartnerschaft (a registered partner- categories of people – in this instance per- ship exclusively for same-sex couples) was sons living in a homosexual relationship.”64 introduced in 2001,67 but originally there were some significant substantial differ- Consequently the differential treatment of ences in the legal consequences of mar- same-sex and opposite-sex couples must be riage and the eingetragene Lebenspartner- necessary to protect the family in the tradition- schaft.68 Many of those were challenged al sense. This is a very high bar indeed, as this successfully, both politically and in the means that without the measure in question courts, particularly the German Constitu- such protection cannot be achieved. Hence it tional Court69 and even the European Court needs to be proved that allowing same-sex of Justice.70 couples the right to enter into a meaningful legal relationship, giving such couples tax It is therefore to be expected not only that all contracting states of the ECHR will have - to provide a legal framework for same-sex niquesbenefits65 and otherthe right rights to adoptof this asnature well wouldas the couples, but also that any such framework endangerright of access the “traditional to artificial family”. reproductive It is obvious tech will for the most part have to be a true and - full functional equivalent of marriage. Oth- other group does not result in the groups who erwise the legal provisions may fall foul that granting these rights and benefits to an of the requirements of the ECHR as ex- - plained above. The easiest (certainly tech- sarilyalready become had those “diluted” rights or and less benefits valuable losing sim- nically, but perhaps not politically) way to plythem. because Nor do someone such rights else and receives benefits them. neces As achieve this would be to open up marriage Baroness Hale has put it succinctly: to same-sex couples, as more and more jurisdictions in Europe and beyond do.71 “No one has yet explained how failing to But whatever approach a contracting state recognise the relationships of people whose chooses to take, it is crystal-clear that after sexual orientation means that they are un- Schalk and Kopf complete non-recognition able or strongly unwilling to marry is neces- of same-sex couples is no longer a viable sary for the purpose of protecting or encour- option. That is why this decision will one aging the marriage of people who are quite day be seen as an “historic” one, as truly capable of marrying if they wish to do so.”66 marking the beginning of the end of discrimination against same-sex couples and Therefore it is very likely that we will see as the first step on the final metres on the many more successful challenges of differ- road towards equality.

1 Jens M. Scherpe is Senior Lecturer at the University of Cambridge, and Academic Door Tenant at Queen Elizabeth Building, Temple, London. This article is based on two previous publications, namely Scherpe, J., “From

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‘odious crime’ to family life – same-sex couples and the ECHR”, in Verbeke, A., Scherpe, J., Declerck, C., Helms, T. and Senaeve, P. (eds.), Confronting the Frontiers of Family and Succession Law – Liber amicorum Walter Pintens, Intersentia, 2012, pp. 1125-1240; and Scherpe, J., “Towards Marriage for Same-sex Couples – The International Development”, in Lesben- und-Schwulenverband Deutschland (LSVD), Vom Verbot zur Gleichberechtigung – Die Rechtsentwicklung in Deutschland, Festschrift für Manfred Bruns, Hirschfeld-Eddy-Stiftung, 2012, pp. 89-95. 2 Application No. 30141/04, 24 June 2010, (2011) 53 EHRR 20. 3 For an overview on the legal status of same-sex relationships, see e.g. Boele-Woelki, K. and Fuchs, A. (eds.), Legal Recognition of Same-Sex Relationships in Europe, 2nd ed., 2012; Scherpe, J., “Same-sex Relationships”, in Basedow, J., Hopt, K. and Zimmermann, R. (eds.), Max Planck Encyclopedia of European Private Law, Oxford University Press, 2012, pp. 1522-1525; Curry-Sumner, I., All’s well that ends registered? The substantive and private international law aspects of non-marital registered relationships in Europe, Intersentia, 2005; Wintemute, R. and Andenæs, M. (eds.), Legal Recognition of Same-Sex Partnerships – A Study of National, European and International Law, Hart Publishing, 2001; Basedow, J. et al., Die Rechtsstellung gleichgeschlechtlicher Lebensgemeinschaften, Mohr Siebeck, 2000; and the contributions in American University Journal of Gender, Social Policy & the Law, Vol. 19:1, 2011. 4 See Dopffel, P. and Scherpe, J., “Gleichgeschlechtliche Lebensgemeinschaften im Recht der nordischen Länder”, in Basedow et al., above note 3, pp. 7-49. Svensk Juristtidning (SvJT) 75 (1990) pp. 491-505. 5 Widegren, B. and Ytterberg, H., “Homosexuella sambor - innebörd och mottagande av en ny rättsfigur”, 6 Cf. Statens offentliga utredningar (SOU) 1984:63, Homsexuella och samhället, Betänkande av utredningen om homosexuellas sitation i samhället, pp. 91, 96, 99. 7 Ibid.; and Broberg, M., “The registered partnership for same-sex couples in Denmark”, Child and Family Law Quarterly, 1996, pp. 149-156. 8 See the amended Article 1:30 of the Dutch Civil Code (“A Marriage can be contracted by two people of different or the same sex.”). 9 Pintens, W., “Belgien: Öffnung der Ehe für gleichgeschlechtliche Paare”, Zeitschrift für das gesamte Familienrecht (FamRZ), 2003, pp. 658-659. 10 Ferrer Riba, J., “Same-sex Marriage, Express Divorce and Related Developments in Spanish Marriage Law”, International Family Law 139, 2006; García Cantero, G., “Family Law Reform in Differing Directions”, The International Survey of Family Law 139, 2006, pp. 431-438; Martín-Casals, M. and Ribot, J., “Ehe und Scheidung in Spanien nach den Reformen von 2005”, Zeitschrift für das gesamte Familienrecht (FamRZ), 2006, p. 1331 ff. 11 Frantzen, T., “Same-Sex Marriages in Norway”, International Family Law, 2009, pp. 220-222; Aslan, J. and Hambro, P., “New developments and expansion of relationships covered by Norwegian Law”, The International Survey of Family Law, 2009, pp. 375-384. 12 Jänterä-Jareborg, M., “Sweden: The Same-Sex Marriage Reform with Special Regard to Concerns of Religion”, Zeitschrift für das gesamte Familienrecht (FamRZ), 2010, pp. 1505-1508; Singer, A., “Equal Treatment of Same-Sex Couples in Sweden”, The International Survey of Family Law, 2010, pp. 393-399. hjúskaparlög), No. 65 of 2010. 13 Lög um breytingar á hjúskaparlögum og fleiri lögum og um brottfall laga um staðfesta samvist (ein 14 Lei Nº9/2010 de 31 de Maio - Permite o casamento civil entre pessoas do mesmo sexo. 15 Cf. Reference re Same-Sex Marriage [2004] 3 S.C.R. 698, 2004 SCC 79; M v H [1999] 2 SCR 3; Halpern v Canada (Attorney General) aspects of legal capacity for marriage for civil purposes”, s.c. 2005, c. 33). On the development see Davies, C., “Canadian Same-Sex(2003), Marriage 65 O.R.Litigation: (3d) 16; Individual and finally Rights, the Civil Community Marriage Strategy”, Act (full title: University “An Act of respecting Toronto Faculty certain of Law Review, 66, 2008, pp. 101-136. 16 Grosman, C. and Herrera, M., “Family, Pluralism and Equality: Marriage and Sexual Orientation in Argentine Law”, International Survey of Family Law, 2011, pp. 27-50. 17 Connecticut, District of Columbia, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington. 18 But also, for example, in Argentina, New Zealand and Uruguay, as well as some of the US states (e.g. District of Columbia, New York, Maine, Maryland, New Hampshire, Vermont and Washington). 19 However, partial recognition (for example for succession to tenancies etc.) was often achieved through litigation. 20 Brazilian Supreme Court, ADI 4277/ADPF 132.

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21 Davies, C., above note 16. 22 Constitutional Court, decisions of 7 February 2007, 29 January 2009 and 26 July 2011. 23 Minister of Home Affairs v Fourie, 2006(3) BCLR 355 (CC). On this case, see De Vos, P., “A judicial revolution? The court-led achievement of same-sex marriage in South Africa”, Utrecht Law Review, 2008, pp. 162-174. 24 See below, section IV. 25 Pintens, W., “Partnerschaft im belgischen und niederländischen Recht”, Zeitschrift für das gesamte Familienrecht (FamRZ), 2000, pp. 69-77. 26 See above, notes 8 and 9.

Gesamtwürdigung und Empfehlungen”, in Basedow et al., above note 3, pp. 391-423. 27 This term was first used in this context by Kötz, H., Dopffel, P. and Scherpe, J., “Rechtsvergleichende 28 In many jurisdictions which have introduced registered partnerships or their equivalent, they are not, thus leaving room for potential challenges based of discrimination because of gender or sexual orientation. See also section IV below. 29 See also the (unsuccessful) challenge in Wilkinson v Kitzinger [2006] EWHC 2022 (Fam). 30 Scherpe, J., “Öffnung der Ehe für gleichgeschlechtliche Paare in Dänemark”, Zeitschrift für das gesamte Familienrecht (FamRZ), 2012, pp. 1434-1437. 31 Proposition de loi visant à l’ouverture du mariage aux personnes du même sexe et à l’ordonnancement des conditions de la parentalité, introduced on 27 August 2012, available at: http://www.senat.fr/leg/ppl11-745.html; the National Assembly approved the bill (329 votes for, 229 votes against) on 12 February 2013. Equal Civil Marriage: a Consultation, 2012 and the Marriage (Same Sex Couples) Bill; the Bill passed its second reading with 400 votes to 175 on 5 February 2013; for Scotland, 32 see Scottish For England, Government, see Government Marriage Equalitiesand Civil Partnership Office, (Scotland) Bill. A Consultation, 2012, available at: http:// www.scotland.gov.uk/Publications/2012/12/9433/downloads; and Scottish Government, The Registration of Civil Partnerships: Same Sex Marriage – A Consultation, 2011, available at: http://www.scotland.gov.uk/ Publications/2011/09/05153328/12. 33 See e.g. the Draft Bill proposed by MPs and the BÜNDNIS 90/DIE GRÜNEN faction, BT-Drs. 17/6343, available at: http://dipbt.bundestag.de/dip21/btd/17/063/1706343.pdf Marriage) Amendment Bill, available at http://www.parliament.nz/en-NZ/PB/Legislation/Bills/2/c/4/00DBHOH_ . See also New Zealand’s Marriage (Definition of 2012, with 80 to 40 votes and one abstention. BILL11528_1-Marriage-Definition-of-Marriage-Amendment-Bill.htm; the Bill passed its first reading in August 34 For Denmark, see above, note 30. 35 For an excellent (and short) exposition of the current (and questionable) position of English law on the places where marriages can be celebrated and some very sound proposals see Eekelaar, J., “Marriage: a modest proposal”, Family Law, 2013, pp. 83-85. 36 Application No. 7525/76, 22 October 1981, (1982) 4 EHRR 149, see in particular Para 52. 37 See also Smith and Grady v United Kingdom, Applications Nos. 33985/96 and 33986/96, 27 September 1999, (1999) 29 EHRR 493; and Karner v Austria, Application No. 40016/98, 24 October 2003, (2004) 38 EHRR 24, in particular Para 37. 38 Application No. 13710/88, 16 December 1992, (1993) 16 EHRR 97, Para 29. 39 Cf. Botta v Italy, Application No. 21439/93, 24 February1998, (1998) 26 EHRR 241, Para 32, referring to Niemietz v Germany, above note 38. 40 Application No. 44599/98, 6 February 2001, (2001) 33 EHRR 205, Para 59. 41 Application No. 56501/00, 10 May 2001. 42 In this paragraph the ECtHR referred to the previous Commission decisions regarding admissibility of complaints in X. and Y. v the United Kingdom, Application No. 9369/81, 3 May 1983, (1986) 8 EHRR CD298, and S. v the United Kingdom, application No. 11716/85, 14 May 1986. This passage was also referred to by Sir Mark Potter in Wilkinson v Kitzinger [2006] EWHC 2022 (Fam), Para 45. 43 Application No. 13378/05 (Grand Chamber decision, 29 April 2008), (2008) 47 EHRR 38, noted by Sloan, Cambridge Law Journal, 2008, p. 484; see also

B., “The benefits of conjugality and the burdens of consanguinity”,

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the judgment of the 4th section of 12 December 2006, (2007) 44 EHRR 51 noted by Sloan, B., “The Burden of Inheritance Tax”, Cambridge Student Law Review, 2007, p. 114. 44 The civil partnership was introduced for same-sex couples by the Civil Partnership Act 2004, and the same prohibited degrees of relationship apply to both marriage and civil partnership. 45 See above, note 43, Para 62. 46 Ibid., Paras 63-65. 47 Application No. 4479/06, 4 November 2008, decision on admissibility. 48 See above, note 2, noted in Scherpe, J., “Same-sex couples have family life”, Cambridge Law Journal, 2010, p. 463; and Henrich, D., Zeitschrift für das gesamte Familienrecht (FamRZ), 2010, p. 1525. 49 Bundesgesetzblatt I Nr. 135/2009, 30.12.2009. The Act entered into force on 1 January 2010. 50 See above, note 2, Paras 17-23; and Aichhorn, U., “Das Eingetragene Partnerschaft-Gesetz in Österreich - ein kritischer Überblick”, Familie – Partnerschaft – Recht (FPR), 2010, pp. 217 ff.; Gröger, K., “Das Eingetragene Partnerschaft-Gesetz”, Österreichische Juristen-Zeitung (ÖJZ), 2010, pp. 197 ff. 51 By contrast, Article 9 of the Charter of Fundamental Rights of the European Union, mindful of the issue of same-sex marriages, was drafted as follows: “The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.” (See above, note 2, Paras 24-25, where the commentary to the Charter is reproduced, as well as Para 60.) 52 It is interesting to note that the current government seems to be of a completely different view, cf. the references in note 32 above. 53 See above, note 2, Para 43. 54 Ibid., Para 44. 55 Ibid., Paras 61-64. not a ceiling”. (See Wikely, N., “Same sex couples, family life and child support”, Law Quarterly Review, 122, 2006, pp.56 542-547.) After all, Seeas Wikely also Scherpe, has put J., it, “Family the ECHR and is private an international life, ambits instrument and pieces”, which Child provides and Family “a floor Law ofQuarterly rights but, 2007, pp. 390-403. 57 But see above, note 2, the concurring opinions by Judge Malinverni, joined by Judge Kovler, who considered Article 12 inapplicable to persons of the same sex. 58 Ibid., Paras 65, 76-78. 59 Ibid., Paras 79 and 81. 60 Ibid., Paras 92-94. 61 But only by four votes to three. It is well worth reading the powerful joint dissenting opinion of Judges Rozakis, Spielmann and Jebens. 62 See above, notes 36 and 39. 63 See above, note 39, Para 37. See also Petrovic v Austria, Application No. 20458/92; 27 March 1998, (2001) 33 EHRR 14, Para 30. 64 Ibid., Para 41. 65 On this see the recent case of S.H. and Others v Austria, Application No. 57813/00, Grand Chamber decision 3 November 2011. 66 In M v Secretary of State for Work and Pensions [2006] UKHL 11 at Para 113. 67 Lebenspartnerschaftsgesetz (LPartG; Act on life partnerships) which was introduced by the Gesetz zur Been digung der Diskriminierung gleichgeschlechtlicher Lebensgemeinschaften: Lebenspartnerschaften (LPartDisBG) of 16 February 2001, BGBl. I 2001, pp. 266 ff. 68 For an overview of the legal development and the LPartG in general see Scherpe, J., “The Legal Status of Same- sex Relationships in Germany”, in Basedow, J., Kischel, U. and Sieber, U. (eds.), German National Reports to the 18th International Congress of Comparative Law, Mohr Siebeck, 2010, pp. 75-107; and Scherpe, J., “National Report Germany”, American University Journal of Gender, Social Policy and the Law, Vol. 19:1, 2011, pp. 151-186.

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69 See e.g. Bundesverfassungsgericht (BVerfG) 21.7.2010, Entscheidungssammlung des Bundesverfassungsgerichts (BVerfGE) 126, 400 (concerning inheritance tax) and BVerfG 7.7.2009, BVerfGE 124, 199 (concerning social security law/pensions); and most recently BVerfG 19.2.2013, 1 BvL 1/11 and 1 BvR 3247/09 (on step-child adoption). 70 Tadao Maruko v Versorgungsanstalt der deutschen Bühnen, Case C-267/06, 1 April 2008, [2008] E.C.R. I-1757. 71 See above, sections II and III.1.

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Marriage Equality in Indonesia? Unruly Bodies, Subversive Partners and Legal Implications

Saskia E. Wieringa1

Introduction

The Indonesian Constitution guarantees that of a heterosexual marriage, this is not ex- everybody has the right to establish a fam- plicitly spelt out. After all, other means of ily. However the Marriage Law of 1974 re- getting children, such as adoption, would do stricts this right to a man and a woman. Un- as well. I know several lesbian couples who have adopted children. However, they can- division of sex and subversive partners who not marry legally in spite of their desire to challengeruly bodies society’s that don’t right readily to deny fit them the binary their do so and the Indonesian Constitution grant- constitutional right to marry complicate this ing them that right. The 1974 Marriage Law seemingly universal entitlement. I will pre- restricts marriage to a union of a man and sent two case studies of people who married a woman. This law further allows polygyny legally yet whose right to form a family was husband as the head of the household and same-sex couple. One of the partners de- hisunder wife certain as the circumstances manager of that and household. defines the2 claredcontested. she Thewas first a male case and concerns was initially a women’s ac- No wonder that this law is being debated. cepted as such. The second case concerns a However, the opening up of marriage to all couple of which the biological sex of one of Indonesian citizens is not being considered, the partners was questioned. In both cases although the issue has been widely debated the accusation of document fraud was a ma- of late. The general feeling is that “Indone- jor issue. Yet not all people committing docu- sian traditional culture” doesn’t allow that.3 ment fraud for the purpose of marriage are persecuted. In this article I will analyse the - legal implications of these cases. Marriage where I have argued that “traditional culture” equality for whom? But who defines “traditional culture”? Else promote a so called “original” Indonesian Constitutional Right? traditionis being redefined of gender by harmony Islamist andhardliners happy famwho- ily (keluarga sakinah).4 Below I will give sev- Article 28b of the Indonesian constitution eral examples which belie the idea that Indo- stipulates that every citizen has the right to nesian culture was always-already based on form a family and acquire offspring via legal the heterosexual binary model of male and marriage. Although the emphasis on acquir- female sexes corresponding with masculine ing children already points in the direction and feminine genders.

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Lesbian Couple on the Run just as Angga did and marry their partners. The danger is that they are found out and are In Batam, an Indonesian island close to Sin- charged with document fraud, which carries gapore, the house of Angga Sucipto, 21 and a maximum sentence of seven years, as we Ninies Ramiluningtyas, 40, was raided in Jan- will see below. Sadly, Angga and Ninies are uary 2013. They had gotten married in 2012, on the run now, and it is not clear how they will be able to survive. The Ardhanary Insti- Riau islands. Angga carried papers stating tute, an NGO that defends LBT people, has at the Sei Beduk Religious Affairs Office, in not doubt. They had followed an express pro- has not been able to help them. cedure,she was formale which which they the paid official 2 million in charge rupiah did not been able to find them so far, and thus (around US $200) in which it is not necessary Alterina Hofan, an Intersex or Transgen- to take the long route through the neighbour- der Husband?

house and lived there initially without any Under the headline Alterina latest proof of problem,hood office. keeping The coupleto themselves. settled in However, Ninies’s transgender problems, the Jakarta Post of 14 Angga did not socialize with other men as was May 2010 carried the story of Alterina Hofan expected of him and the neighbours felt justi- (or Alter), the husband of Jane Hadipoespito, who was imprisoned on the charge of “iden- they discovered that Angga was female; she tity fraud”.7 Other newspapers also reported wasfied inchased raiding out the of house the house. of the Ninies couple. was There al- on the case, with Vivanews of the same date carrying a photograph of the couple in hap- At present their whereabouts are unknown.5 pier days.8 Thelowed Ministry to stay, of but Religious she fled Affairs with her quickly partner. an- half-long hair looks up admiringly at her nounced that it would annul the marriage husband Alter, Jane smart in a fluffyin a jacket, dress shirt and withand and that in order to prevent such things from tie, short hair, square shoulders. The article happening again it would step up its regular pre-marriage counselling sessions.6 baritone voice. Alter looks to all appearanc- esspecifies a man that and Alter that smokesis the assumption heavily and under has a Two issues are striking in this case. In the which the pair married, their “truth”. Yet, at

diagnosed with Klinefelter syndrome, one of factfirst they place are the stimulated role of theto do neighbours just that by who the thebirth, intersex Alter was conditions classified presently a girl and recognised. only later 2008feel justified anti-pornography in raiding the law, couple’s which stimulates house. In After operations for gynaecomastia and for communities to take the law into their own hypospadias Alter was happy with his body, hands in issues involving sexual morality. and changed the identity on his documents without going through a lengthy legal pro- Secondly the ease with which Angga could cedure.9 When Jane and he fell in love and - married nothing seemed to impede their bian) women in Indonesia can indeed quite happiness. However Jane’s mother objected passeasily aspass a man. as men: Butch short (male-identified hair, masculine les clothes and a masculine swagger are gener- her son-in-law for “document fraud” as the ally enough to convince people that they deal to the marriage and fielded a case against with a man. Some butches are tempted to do mentioned on his wedding form. The police sex of his birth certificate didn’t match that

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originally detained him in the men’s prison with all kinds of twisted arguments. Second, of Cipinang in January 2010. Not trusting the he had not shown remorse and third, the ac- Klinefelter diagnosis that Alter presented, cused had denied the fraud.14 In November, the police carried out their own investiga- Alter was acquitted from all charges on the tion and decided that Alter was a woman.10 ground that he had Klinefelter syndrome and In spite of his manly appearance, on 30 April thus, though he had tampered with his birth 2010 they moved him to a cell of his own in the women’s prison of Rutan Pondok Bambu, crime in this case.15 awaiting his trial. Jane herself declared that certificate, this could not be considered a A number of issues can be gleaned from the want is for my husband to be freed as soon as possible”.she didn’t11 care And how added Alter Alter: was “I’m classified: a real man,“All I I can ejaculate. Sperm is getting out, just ask tonewspaper substantiate reporting. the charges The firstagainst issue Alter, is the or my wife if you don’t believe me.”12 converselyuse of (albeit to argue conflicting) for his medicalrelease. Though “proof” Klinefelter is diagnosed as a biological con- So far the discussion was waged in biomedi- dition, pertaining to one’s sex, reporting focal terms. If Alter was declared intersex, the cused on Alter as a transgender person. This confusion at birth was understandable. He confusion of terminology opens up a totally was a “real man” and he would walk free. But different discourse, that of human rights and if Alter was diagnosed as female and thus af- prevailing notions of “normality”. The Indo- ter the operations as a transsexual person, he nesian Human Rights Commission took this a step further and declared that this case was a change his status. In both cases the sex on his violation of Alter’s rights and referred to the should have received official permission to International Covenant on Civil and Political In the Klinefelter case, this shouldn’t have causedbirth certificate many problems, would havebut still to bea legal changed. pro- government in 2005. Josef Adi Prasetyo, the cess was required. In the case of a “female” commissionerRights which was in charge ratified of bythe the case, Indonesian declared Alter undergoing sex change, the procedure that Alter “has the right to say he is a man”. would have been much lengthier, involving psychological testing. In that case, Alter This position provides an excellent oppor- would be called a transsexual person. tunity for a revolutionary development in the struggle for intersex, transgender, and His defence team pursued a different line transsexual people’s rights. However in the and called upon a member of the National end, this line was not accepted by the court. Rights Commission to declare that Alter’s Alter was seen as a “true man”, and adjust- rights were violated under the International Covenant on Civil and Political Rights.13 The simply mean that a perceived mistake was court accepted this argument and Alter was righted.ing one’s The “wrong” biomedical birth argument certificate was would in provisionally released on 31 May but still line with the legal verdict. Earlier, a legal had to face trial. In October 2010, the pros- expert from the University of Indonesia had explained this position.16 in prison on the charge of “document fraud”. Theecution prosecutor demanded mentioned a sentence three of fiveaggravat years- In this whole procedure, multiple contra- ing circumstances. The accused had come up dictory concepts were applied to the same

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person. The police initially declared that discourse has become dominant in juridi- Alter was a “true woman”, so the prosecu- cal and even in religious circles. Human tor demanded a stiff prison term for docu- and sexual rights activists deploy a differ- ment fraud. The intersex team stated he was ent set of discursive tools. a man born with an intersex condition, and a school friend declared that Alter always The cultural discourse on “sacred gender” had been a tomboy, although he consented which I will outline below produces yet to wearing a school skirt.17 The association again a different set of truth claims. Below of the word “tomboy” with a butch person - is very clear in Indonesia, where male-iden- nesian tradition” on the grounds of which anI will always-already focus on what binary is classified heterosexual as “Indo nor- relations are often called “tomboi”.18 Thus, malcy is proclaimed. To illustrate my posi- tified female-bodied persons in same-sex tion I will discuss examples of gender vari- transsexual, and homosexual. The mar- ance in Asia in situations in which “sacred riageAlter between was variously Alter and classified Jane, depending as intersex, on gender” was an established worldview. I which label was applied, would then be ei- will then return to the human/sexual rights ther a same-sex marriage, which is illegal, or discourse, which was deployed successfully a heterosexual marriage, which is accepted. to get Alter out of jail. But while Alter was In this case, Alter was ultimately seen as an saved by his intersex condition, Angga and Ninies have no such recourse. wrong, for a Klinefelter person is usually intersex person, so his birth certificate was- The Cultural Discourse on Gender Variance demned for document fraud even though he didn’tclassified follow as a the man. required Thus, Alter procedure. was not If, con on Social stigma has not always been associated the other hand, he would have been a bio- with gender variance or intersex. In various logical female, the sex on his marriage paper Asian countries, pre-colonial people who in- would be “wrong”, as he had not yet com- habited a realm of gender and sexual liminal- pleted the whole court procedure to change his sex and he could have faced a hefty jail ambiguity”, or “transvestism”, depending on sentence (up to a maximum of seven years). whichity fulfilled concept certain was religiousused by observers, roles. “Gender has Plus, the marriage of Alter and Jane would played a major role in rituals throughout - Southeast Asia; there were reports of her- ents had wanted. In both cases Alter had to maphrodites, eunuchs, or transvestites who takehave sides:been nullified.he could onlyThis beis what“man” Jane’s or “wom par- played important roles in courts and reli- an” – classifying as intersex and marrying gious festivals, mediating between the world Jane on that ground was impossible. of gods and humans.19 In some cases “gender switching” only took place in a ritual context; The case of Alter then raises fundamental in other cases, it exceeded the sphere of rit- questions on how important it is to clas- ual. These people were known as transgen- sify human beings as intersex, transsexu- dered, such as the manang bali of the Iban al, transgender, or homosexual. All these in Sarawak or the bissu among the Bugis terms at present refer to non-normatively in Sulawesi.20 gendered and sexed positions that carry many cases such stories referred to people various forms of stigma. The biomedical with ambiguous It genitalia, is difficult as to the guess sources in how are

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often unclear and as such a distinction may male, half-female Hindu deity combines not always have played a determining role. It male (right side, Siva) and female (left side, appears that gender liminal positions could Shakti) characteristics and attributes. Origi- be inhabited in various ways. Colonialism nally from India, this god/dess is known in and the emergence of monotheistic religions Indonesia as well. The National Museum in have destroyed or eroded the importance of Jakarta has three statues of Ardhnarishvari this so called “ritual transvestism”.21 Kathoey in its central yard.29 In pre-Islamic Javanese in Thailand, hijra in India, bissu in Bugis so- epic court poetry, the so-called kakawin, Ar- ciety, and warok in Ponorogo, East Java are dhanarishwari is mentioned in a tantric form remnants of what used to be a more wide- of the yoga of love in which the divine union spread tradition.22 The religious context of of Siva and Shakti creates the “seed of the the gender switching in the cases mentioned world” (windu). This cosmic union provides above has often been lost in the course of the intervening centuries. the land; it ensures abundance of life in general.both30 sexual This fusion gratification of male and and thefemale welfare in one of This development refers to a process that form referred both to spiritual prowess and Blackwood, following Andaya, more broadly the physical enjoyment of love. calls the decline of “sacred gender”.23 Sacred gender is associated with a worldview in Colonialism with its strongly patriarchal gender division (or communism in the case such a way that there is a direct link between of Siberia) and monotheistic religions such sacredwhich powers gender and is defined (a third) cosmologically sex/gender.24 Sa inas Christianity and Islam weakened the sacred gender more widely refers to cosmolo- cred origins of gender, resting upon a unity gies that “constitute gendered meanings and practices through sacred beliefs about Gender came to rest on individual beings and the nature of the cosmos and the origins of lostthat itsneeded connection to be periodicallyto the sacred reconfirmed. world. Sex- humanity”.25 Origin myths frequently stress an original unity (a snake, or an egg) from and gender relations divided in a binary and which diverse beings originate. The Bugis hierarchicalual bimorphism way. becameThese binary fixed andbodies bounded didn’t myth about creation, La Galigo, speaks of allow any space for gender transgression as originally “androgynous” deities that pro- earlier cosmologies had. These processes duce various sacred beings, including bissu.26 have progressed unevenly and in some cases In a later form of creation the primordial unity is split, and female and male beings early Islam in Java for instance was able to are created. These became the ancestors of accommodatepartially. The Sufi the tradition old Javanese which dominatedgoddesses the Bugis dynasties.27 Thus Bugis cosmology and transgender practices for a long time. rests upon a primordial oneness, of which The union of Siva with Shakti, his female the bissu are a manifestation. Later, they are consort, has led to Siva variously being seen split into opposite genders. The bissu remain as androgynous, hermaphroditic, bisexual, necessary to ensure the original oneness, or ambiguous with respect to sex, gender through their participation in regular rituals. or both.31 This seems to suggest that there might have reigned a climate of pluralism Ardhanarishvari (also called Ardhanari) is concerning sex and gender in several South another good example of this.28 This half- and Southeast Asian societies, as evidenced

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by the many lingga-yoni (phallus rising from The bissu a vulva) statues found. Another indication of instance in ceremonies related to marriage the importance and the recognition of an- and childbirth, fulfilled often various entering ritual into a roles, trance. for39 drogyny is the spread of tantric cults in the Indeed, these were the functions also de- region with their emphasis on the reconcilia- scribed in the Bugis origin myth, La Galigo. tion of opposing forces.32 The predominantly One became a bissu through a supernatural Hindu island of Bali has remnants of these calling. Both high and low placed persons belief systems, with Siva, the prime deity, be- could become bissu. In the spirit world, a ing considered a hermaphrodite, or wandu.33 bissu had two partners, a woman and a man. Interestingly, the Javanese word wandu is In Pelras there is no mention of a physical still used for an effeminate man who engages condition, other than psychosomatic symp- in sex with other men.34 Thus it appears that toms underlying the calling. Kroef used the in several Asian contexts, transgendered rit- terms androgyny, bisexuality, and hermaph- ual specialists symbolized an original unity roditism indiscriminately without referring between heaven and earth and could com- to genitalia. He describes bissu being dressed municate with the spiritual world in order to half male and half female for ritual purposes, ensure the fertility of the land and the pros- similar to the Ardhanarishvari concept. perity of its people. The ambiguous gender and sexual status of Bissu the bissu was and still is highly appreciated. As Andaya writes, “...in their ritual roles the A classic example of gender pluralism which bissu assume a symbolic androgynous state is thriving today in Indonesia is the case of that re-establishes primordial conditions(…) the Bugis.35 Their gender system is not based Performed by the bissu, such rituals are indispensable in ensuring the well being and can be distinguished, male, female, calabai, prosperity of the ruler and the community.”40 calalai,on a binary and bissu division..36 Calabai Indeed, are fivemale-bodied genders persons who dress like women, perform The bissu tradition experiences a revival, women’s roles, and often have male partners. with the current process of regional auton- They are still highly visible in society and omy in Indonesia. To justify its claims for perform various functions in marriage cere- autonomy from the national state often local monies. Calalai are much rarer and much less culture is invoked, with the bissu symboliz- visible. They are female-bodied and may live ing Bugis authenticity.41

roles. They don’t perform in ceremonies.37 There are more examples of gender variance, Althoughwith their some woman calabai partners become and fulfilbissu , malethis variously called androgyny, hermaphrodit- latter category must be regarded on its own. ism, or bisexuality in Indonesia. Schärer for A bissu has a much more important ritual instance uses the term “hermaphrodite” to function. They used to be the keepers of the refer to the basir or balian of the Ngayu Day- sacred royal ornaments and in that function ak in Kalimantan. These balian are powerful were seen to be bisexual, as these ornaments healers and diviners; they are male-bodied required communion with the other sex, and dress like women.42 and the sex of the ornament was generally not known. The bissu is thus regarded as the “hermaphroditic partner of the ornament”.38 similar stories. In Burma transgendered fe- In other parts of Southeast Asia, we find

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male bodied ritual specialists, the nat kadaw, Yet when sexual rights activists manage to (“wives of the spirits”), played important link up with human rights activists, there is roles in local ceremonies, and were even re- a higher possibility of the acceptance of gen- ported to assist in the war against the invad- der variance.47 ing British.43 The present wave of sexual rights activism Apart from Bugis society, in Indonesia, ritual has its roots in the struggles for the legalisa- transvestism is generally in decline due to tion of homosexuality and abortion trans- - nationally. The successful UN international ence of hardliner monotheistic groups who conferences on women (Nairobi 1985; Bei- politicalperiodically processes want to andpurify the Indonesian growing influsoci- jing 1995) and on population (Cairo 1994) - provided a major impetus. Major interna- ences. A major event in this regard was the tional instruments, going back to the 1948 cleansingety from pre-Islamicof the Indonesian and pre-colonial society from influ all Universal Declaration of Human Rights, provide a critical framework within which to in the political context of the creeping coup locate struggles for the acceptance of gender oftraces General of communist Suharto in and 1965-1966. socialist44 influence, In order variance. These include the already men- to discredit President Sukarno, he wiped tioned International Covenant on Civil and out the communist party and all its associa- Political Rights (1976), which enabled Alter tions, including the cultural association.45 to achieve his release from jail, pending his Transgender practices for instance in reog trial (although it didn’t help lift the charges and kethoprak groups became suspect, their against him). Similarly, the 1979 Convention adherents murdered or imprisoned, their for the Elimination of all Forms of Discrimi- practices banned.46 The space for gender nation against Women is an important in- pluralism became constricted; people were strument. Debates on population growth and encouraged to give up the older rituals and the HIV epidemics are other factors, which beliefs and to conform to a stricter form of resulted in almost all UN agencies discussing Islam based on a binary sex/gender model. If several aspects related to sexuality.48 Alter had been born in Bugis society, or elsewhere, where “ritual transvestism” would At an international seminar of many legal still be important, he would not have been experts that took place in Yogyakarta, Indo- punished, but lauded and seen as embodying nesia, at Gadjah Mada University, from 6 to sacred powers. 9 November 2006, the so-called Yogyakarta Principles were drafted. These are a set of The Rights Discourse principles on the application of international human rights law in relation to sexual orien- Even if sacred gender is not revisited in its earlier manifestations, new discourses of binding international legal standards for gender and sexual multiplicity are being alltation states and to gender comply. identity The Yogyakarta and they Princi affirm- advanced by the many sexual rights groups ples address a broad range of human rights springing up all over Asia. Their voices are standards and their application to the issues as yet not clearly heard everywhere. In fact, of sexual orientation and gender identity. As conservative discourses, including those of each principle is accompanied by detailed heteronormative feminists, do not welcome recommendations to the states, they are a their contribution to the rights discourses. very useful tool for sexual rights activists.

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National human rights institutions, the me- 49 The introduction of electronic dia, non-governmental organisations, and IDs complicated the procurement of these firstfake IDs, wife. but polygamous husbands still tried internationally binding principles. If these to have fake e-IDs made at such a large scale principlesother parties would are calledbe consistently upon to affirm translated these (for instance by producing photographs with into national laws, gender and sexual plural- false beards) that the ministry feared the ism would be a legitimate category. Howev- whole system would collapse.50 To my knowl- er, conservative social and religious groups edge, none of the owners of these fraudulent strongly oppose the implementation of inter- IDs has ever been charged with document national principles that would guarantee the fraud as Alter was and with which Angga is rights of people living non-normative lives. threatened if s/he ever gets caught.

rights advocate the right to engage in safe sex Discursive Contestations betweenBasically, consenting those fighting adults, for and sexual the rights human to information and association. At present, the dominance of the bio-medical discourse results in its appropriation If the Indonesian judicial system would up- of a large discursive space. In discussions hold this right, the marriage of Alter and Jane on assigning a body and a gender to per- would never be criminalised and Alter would sons born with atypical genitalia, often the not have had to spend many months in jail. “wellbeing” of the persons concerned takes Neither would Angga and Ninies have to be central stage. This notion of “wellbeing” is on the run at the moment. For although the rooted in a heteronormative model of soci- Yogyakarta Principles do not explicitly call ety that may ultimately limit the choices of for so called “gay marriage”, the principle of the people concerned.51 marriage equality for all, as stipulated in the Indonesian Constitution, would imply that In societies which made the transition from a no category of people would be excluded. model based on sacred gender with an original sacred unity, the ritual specialists who A related issue is whose fake ID cards are used to enact the ceremonies to restore the seen to be related to punishable offenses. communication between gods and humans Men marrying polygynously are known to and embodied this unity have either disap- have false ID cards made. On each of them peared or their importance has been under- one of the wives is stated to be “the” wife. mined. With it, the possibility for acceptance of transgender people and for children born wife is not informed of her husband’s marry- with ambiguous genitalia has been eroded. This seems to happen particularly if the first The bissu tradition is going through a revival their consent to their husbands’ request to in Bugis society, but elsewhere in Indonesia marrying again. another Although wife, firstaccording wives haveto the to 1974 give and Southeast Asia at large, tolerance for Marriage Law, in practice this regulation is sexual and gender variance is on the decline. often ignored and men marry their following wife or wives in a religious ceremony (so What relevance does this cultural discourse they don’t contract a civil marriage, meaning have on discussions on what is called “Indo- that the new wife and her offspring have no nesian culture”? It is clear that there cannot rights at all), without the knowledge of the be a return to the cosmological system of

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sacred gender. Yet the historical and mythi- a conference and interrupted a human rights cal possibility of sacred gender, with its em- training of transgenders (on 30 April 2010).57 phasis on gender variance including intersex Their discourse is based on the Qur’an and persons, might stir the imagination towards the hadith, the heritage of the Prophet Mu- a society in which the present binary forms hammad. Defending their action to disband a of heteronormativity will decline in impor- human rights training of transgender people, tance and social stigma related to gender they declared that: “Islam has a place for peo- pluralism reduced. To achieve this, a critical ple who naturally have double sexual organs dialogue with major social actors, includ- but not for those who intentionally exchange ing the religious establishment and human their given gender.”58 So in this interpreta- rights groups is necessary.52 In Indonesia, tion, Alter’s Klinefelter diagnosis would have the present climate is unfortunately not very won him the acceptance of the hardliner conducive. There are growing currents of Muslim community, but Angga would never conservative Islam in society, which for inbe accepted. stance strongly support the Anti-Pornogra- phy law victimising women and criminalis- Clerics also use biological arguments to ing traditional customs based on non-binary strengthen their case that sexual dimorphism and non-heteronomative practices.53 It is is the preferred state of being. The secretary reported that Muslim militias such as the of the conservative Ulama council (MUI), Ah- FPI (Muslim Defenders’ Front) feel embold- ened by this law to harass gay men, lesbian one pees” determines in which sexual cat- women, and transgenders.54 Recently a re- egorymad Rofiq, a person judged must that be placed.the “tool59 Progressivewith which ligious group, the Forum of Muslim Schools Muslim scholars in Indonesia, however, such for East Java, prohibited waria (male-bodied as Prof. Musdah Mulia, use a different argu- transgenders) to cut the hair of women.55 mentation to maintain that there is a place Another hardliner group, the FPI, dispersed in Islam for transgenders, intersex persons, a beauty contest for waria in Makassar, the and for gay men or lesbian women. Islam is home town of the Bugis.56 not concerned with sexual orientation but only with sexual behaviour, she argues. The The rights discourse seems to offer most major criterion is that this behaviour cannot scope for acceptance of gender pluralism. be violent or irresponsible. Both hetero- and However, it is not always clear whose rights homosexual persons are condemned if they are being defended. What if parents insist engage in violent or cruel sexual acts. In a hu- on their “right” to have a “normal” child? manist interpretation of Islam, based on the Religious specialists have also joined in the central principles of equality, wisdom, and rights choir. The human rights discourse is a compassion there is no place for discrimi- strongly contested issue in Indonesia, hard- nation and hatred.60 Yet even this liberal in- liner Muslim groups providing their own terpretation of Islam leaves little space for interpretations of these rights. Recently the a plurality of gender and sexual positions, major Muslim militia, the FPI, has arrogated though Mulia mentions that the literature on to themselves the right to declare what is the Muslim fiqh mentions 4 gender variants: women, men, khunsa (effeminate men) and incidents occurred in one of which FPI mem- mukhannit or mukhannat (manly women). bers“normal”. forcibly In the evicted first monthsgays and of lesbians2010, several from Another feminist Muslim scholar, however,

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Dr Suad Joseph, in her contribution to the scholars, and biomedical scholars all engage Encyclopedia of Women in Islamic Cultures, translates khunsa as intersex, and mukhan- - nath as bisexual or effeminate.61 ality.in this In fierce the process, debate onthe who broad has liminal the right space to indefine which what transpeople is “normal” moved in gender is carved and up sexu into Conclusion own medical codes and legal instruments. Only when both sex and gender are seen as Political,neatly defined cultural, categories, religious, each and withbiomedi their- continua (which do not necessarily run par- cal developments have led to the gradual allel to each other), we can hope for the ac- closing down of the liminal spaces in which ceptance of people with non-normative bod- transgender people, intersex persons, or ies, desires, or social roles. The discursive those attracted to people of their own gender contestations between biomedical and con- or sex could move. The consequences are an servative religious and political leaders on the one hand and feminists, gay and lesbian to be diffuse, liminal, and at times sacred; the rights activists and human rights defenders medicalisationurge to define and of categorisethose persons that whichwith atypi used- cal genitalia; and the stigmatisation of those what is “normal” gender, a “normally” sexed who insist on an in-between space, or who bodyon the and other, “normal” centres sex. around In this the process, definition gen of- refuse to accept the binary sex-gender mod- der and other forms of pluralism are under el. Intersex persons are singled out for treat- threat and a “history’’ is being created from ment to “normalise” them. People who desire which references to sacred gender and gen- to marry their same-sex partner are denied der pluralism have been removed. The early a right that is constitutionally guaranteed to modern ritual centrality of goddesses and all Indonesians. transgendered people has faded away, surviving only in very small pockets of the world. A coalition of human rights defenders, sexual rights activists, and advocates of Asia’s cul- The arena in which these contestations are tural heritage of tolerance for non-normative being enacted has changed. It is no longer persons has the potential to stop the advance the spiritual world of pre-modern times; the of conservative bio-medical and hardliner struggle takes place in the streets with thugs religious thinking that is now sweeping over like the FPI, in the mosques with its religious many parts of Asia and which closes down discourses, in which medical arguments the liminal spaces that once existed. Progres- sive medical personnel, who do not want to rooms, and the media. Alter was the subject be “moral guardians” and who don’t advo- offlourish an elaborate beside TV religious programme ones, on the 23 courtMay cate surgery when none is needed for health 2010, in which the old medical argument, reasons, can help. that he was sick, also surfaced. Angga and Ninies received a lot of media attention; no- In the court and in the hospitals, intersex body protested to their house being raided, conditions are separated from transgender their privacy being invaded and to them have or transsexual persons, as intersex is seen been chased out of their house. to be located in biology. Yet the decision to operate is based on a child’s gender identi- Sexual and women’s rights activists, Muslim ty. If sex and gender cannot be separated so militias, human rights advocates, religious clearly, they should be seen as overlapping.

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Consequently, the clear separation between intersex and transgender/transsexual, Angga sees himself as a man, though being which was postulated for Alter’s case, can- bornfied as female? inter- orTheir as transsexual, bodies may or be whether unruly, not be upheld. There should be more space or their documents subversive, but their for the liminal, the in-between, and the non- love is genuine. Indonesia’s Constitution is heteronormative. The issue is not so much welcome: all (adult) citizens are allowed to the confusion in relation to the diagnosis form a family. This right should be upheld in of Alter, but the constricted space in which other laws as well – the Marriage Law in the he had to move. Alter and Jane love each other, as do Angga and Ninies. Why should tradition of gender pluralism – a heritage it matter to others whether Alter is classi- Indonesiafirst place. should This is be in proud line withof. Indonesia’s

1 Saskia E. Wieringa holds the chair of Women’s Same-Sex Relations, University of Amsterdam, Amsterdam Institute for Social Science Research. This article is partly based on “Gender Variance in Southeast Asia: discursive contestations and legal implications”, in Katjasungkana, N. and Wieringa, S.E. (eds.), The Future of Asian Feminisms: Confronting Fundamentalisms, Conflicts and Neo-liberalism, Newcastle upon Thyme: Cambridge Scholars Publish- ing, pp. 447-476. 2 Katjasungkana, N., “The Indonesian Family as a Contested Site of Women’s Rights: Implementation of the Domestic Violence Act”, in Mohamad, M. and Wieringa, S.E. (eds.), Family Ambiguity and Domestic Violence in Asia: Concept, Law and Process, Eastbourne: Sussex Academic Press, 2013, pp. 169-192. 3 See, for instance, the worried insistence of Taufan Eko Nugroho Rotosariko, Chair of the Global Youth Forum held in Bali in December 2012, that he would not allow the discussion of same-sex marriage at that Forum. The other delegates had to respect Indonesian culture, he insisted. (By Rohmat. Okezone news. Ada issue aborsi & perkawinan akan dilegalkan? 06 Dexember 2012.) 4 See Wieringa, S.E., “Gender harmony and women’s rights: the passionate aesthetics of heteronormativity in post-reformasi Indonesia”, Mimeo, University of Amsterdam, 2013. 5 The case got wide media coverage. (See, for instance, AFP, “Lesbians chased from Indonesian home for ‘marrying’”, InSing.com, 17 January 2013.) 6 Okezonenews, 10 January 2013. 7 Krismantari, I., “Alterina latest proof of transgender problems”, 14 May 2010. Taufik Budi, “Kemenag akan ajukan pembatalan pernikahan sejenis”,Jakarta Post, the law or fate?”, VIVAnews, 14 May 2010. 8 Maryadie, Lutfi Dwi Putji Astuti, Mutia Nugraheni; and Eko Priliawito, “Alterina with two sexes, a matter of - tal in Semarang, dated 12 June 2010. Gynaecomastia means development of breasts in a male; hypospadias means 9that the This opening is confirmed of the urethrain a lett eris locatedto me by on Prof. the Drlower Sultana side Faradz,of the penis, head ratherof the intersexthan at the clinic tip. of the Kariadi hospi 10 The police carried out a DNA investigation, which apparently did not give this information. As Prof. Faradz explained (above note 9), the police laboratory used a buccal smear (so that is not a DNA test), which cannot detect the Y chromosome. Only a chromosome analysis can give the correct diagnosis. 11 See above, note 7. 12 Mei, E. and Amelia R., “Alter: I am a Man, can ejaculate”, DetikNews, 4 May 2010.

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13 See above, note 7. The article did not specify which Covenant articles were invoked. Articles 26 (freedom from discrimination) might apply. 14 Novi Christiatuti Adiputri, “Sentence of 5 years in Prison sought for Alter”, Detiknews, 12 October 2010. 15 Jakarta Post, “Court acquits Alterina’s case”, 23 November 2010. DetikNews, 2 August 2010. 17 Siswanto, “Semasa SMS Alter Dikenal Cewek Tomboy” (During high school days Alter was known to be a tom- 16 Saputra, A.,“Legal Expert: Changing birth certificate is no legal offence”, boy), VIVAnews, 9 May 2010. 18 Blackwood, E., “Transnational sexualities in one place: Indonesian readings”, in Wieringa, S. E., Blackwood, E. and Bhaiya, A. (eds.), Women’s Sexualities and Masculinities in a Globalizing Asia, Palgrave/MacMillan, 2007, pp. 181-203; Blackwood, E., Falling into the Lesbi World: Desire and Difference in Indonesia, University of Hawaí’i Press, 2007; Wieringa, S.E., “If there is no feeling…The dilemma between silence and coming out in a working-class Butch/Femme community in Jakarta”, in Padilla, M.B, Hirsch, J.S., Muñoz-Laboy, M., Sember, R.E. and Parker, R.G. (eds.), Love and Globalization: Transformations of Intimacy in the Contemporary World, Vanderbilt University Press, 2007, pp. 70-93. 19 Karsch-Haack, F., Das Gleichgeschlechtliche Leben der Naturvölker, Reinhardt, 1911 ; Andaya, L.Y., “The Bissu: Study of a Third Gender in Indonesia”, in Andaya, B.W. (ed.), Other Pasts: Women, Gender and History in Early Mod- ern Southeast Asia, University of Hawai’i, 2000, pp. 27-47; Andaya B.W., The Flaming Womb: Repositioning Women in Early Modern Southeast Asia, University of Hawai’i Press, 2006; Peletz, M.G., Gender Pluralism: Southeast Asia since Early Modern Times, Routledge, 2009. 20 Less is known about the “hermaphrodite” statues of the Dayak in Kalimantan. (See Kroef, J.M. van der, “Trans- vestism and the Religious Hermaphrodite in Indonesia”, in Dynes, W.R. and Donaldson, S. (eds.), Asian Homosexual- ity, Garland, 1992, pp. 98-99.) 21 Ibid.; see also Blackwood, E., “Gender transgression in colonial and postcolonial Indonesia”, The Journal of Asian Studies 64(4), 2005, pp. 849-879; and Andaya B.W., above note 19. 22 For kathoey, see Jackson, P.A. “Kathoey>

(See Boswell quoted in Herdt, G., “Introduction: Third Sexes and Third Genders”, in Herdt G. (ed.), Third Sex Third Gender:26 The Beyond term “androgynous” Sexual Dimorphism was oftenin Culture used and conflating History a, Zoneterminology Books, 1993.) for hermaphroditism In this case, it probably and homosexuality. referred to hermaphroditism only. 27 See Andaya, L.Y., above note 19; Pelras, C., Manusia Bugis, Nalar, 2006; Graham, S., Hunters, Wedding Mothers and Androgynous Priests: Conceptualising Gender among Bugis in South Sulawesi, Indonesia, University of Western Australia: PhD Thesis, 2004. 28 See Pande, above note 22. 29 The attraction the symbol of Ardhanarishvara still has for transgender and lesbian persons is demonstrated by the establishment of the Ardhanari Institute in Jakarta. 30 This is evidenced by inscriptions from the 14th century Javanese realm of Majapahit, which was ruled at the time by queen Tribhuwana. (See Creese, H., Women of the Kakawin World: Marriage and Sexuality in the Indic Courts of Java and Bali, Sharpe, 2004, p. 204.) 31 See Peletz, above note 19, p. 24. 32 See also O’Flaherty, W.D., Women, Androgynes and Other Mythical Beasts, University of Chicago Press, 1980.

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33 See Covarrubias quoted in Peletz, above note 19, p. 30. See also Belo J., Bali: Rangda and Barong, University of Washington Press, 1949. 34 The same goes for the originally Batawi word banci. A manly woman also used to be called a banci or wandu,

35 The Bugis are an ethnic group in South Sulawesi. but both terms are at present hardly used to refer to female-bodied male-identified persons. 36 Other Asian ethnic groups might have even more genders in pre-modern times. The Chukchi of Siberia for instance counted nine genders, according to their ethnographer Bogoras who lived among them in 1890-1908. 37 See Graham, above note 27; and Pelras, ibid. 38 See Chabot quoted in Kroef, above note 20. 39 See Pelras, above note 27, p. 97. 40 See Andaya, L.Y., above note 19, p. 36. 41 See Graham, above note 27. 42 See Blackwood, above note 21. 43 See Peletz, above note 19, p. 64 ff. 44 Roosa, J., Pretext for Mass Murder: the September 30th Movement and Suharto’s Coup d’Etat in Indonesia, Uni- versity of Wisconsin Press, 2006; Wieringa, S.E., Sexual Politics in Indonesia, Palgrave/McMillan, 2002. 45 In 2008, I witnessed a Kuda Lumping performance in Malang, East Java. It is a trance dance, in which some dancers cross-dress; it used to be very popular. The group hardly performs any more after their reputation was linked to communism in the heyday of the anti-communist genocide perpetrated by General Suharto. (See Wier- inga, S.E., “The Birth of the New Order State in Indonesia: Sexual Politics and Nationalism”, Journal of Women’s His- tory, 15 (1): Spring 2003, pp. 70-92.) 46 Kethoprak is a drama form developed in Central Java around the beginning of the 20th century. Their reper- toire ranges from Javanese folk stories to Indian epics. In East Java, the ludrug theatre groups depicted stories from daily life. In both cases, cross-dressing actors participated. Both were discredited after 1965. On reog, see Boell- storff, above note 22; and Wilson I., “Reog Ponorogo: Spirituality, Sexuality and Power in a Javanese Performance Tradition”, in Intersections: Gender, History and Culture in the Asian Context, 1999. 47 The decriminalisation of homosexuality by the Delhi High Court in July 2009 is an example of a successful collaboration between human right lawyers and sexual rights activists. (See Narrain and Eldridge, “The right that dares speak its name”, Alternative Law Forum, 2009, available at: http://www.scribd.com/doc/18552529/Naz- Foundation-The-Right-That-Dares-to-Speak-Its-Name.) 48 Correa, S., Rosalind, P. and Parker, R., Sexuality, Health and Human Rights, Routledge, 2008. 49 See Katjasungkana, above note 2; and Wieringa, S.E., “Passionate Aesthetics and Symbolic Subversion: Heter- onormativity in India and Indonesia”, in Queer Asian Subjects: Transgressive Sexualities and Heteronormative Meanings, Special Issue, Asian Studies Review, 36(4), December 2012, pp. 515-530. 50 Saragih, B.T., “Rampant polygamy leads to fraudulent e-IDs: Minister”, The Jakarta Post, 8 January 2013. 51 A parallel can be drawn with earlier sexological discourses in which a wish for “sexual progress” resulted in the biological underpinning of patriarchy. (See, for instance, Havelock, E., Studies in the Psychology of Sex, Random House, 1936; and Krafft Ebing, R. von, Psychopatia Sexualis, Ferdinand Enke, 1912.) This approach was later de- nounced as “biological determinism” naturalising women’s oppression by eroticising male aggression and female masochism. (See Weeks, J., Sex, Politics and Society: The Regulation of Sexuality since 1800, Longman, 1981; and Jef- freys, S., The Spinster and her Enemies: Feminism and Sexuality 1880-1930, Pandora, 1985.) 52 According to Agustina, Islam approves of operations on people with ambiguous genitalia, as it is done for purposes of healing, while it is not allowed in the case of transsexuals, as those operations are related to sexual desire. (See Agustina, N.N., Penentuan Jenis Kelamin Penderita Ambiguous Genitalia dengan Androgen Insensitivity Syndrome Menurut Islam, Faculty of Medical Sciences, Diponegoro University, 2007, Mimeo 37.) 53 See Katjasungkana, above note 2. 54 Author’s conversations with various lesbian and gay activists in Indonesia, members of Ardhanary Institute, Institute Pelangi, and others.

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55 Mazaya, H., “Forum Pesantren: waria potong rambut wanita haram” (It is prohibited for waria to cut women’s hair), Arrahmah.com, 24 May 2010. 56 Abdurrahman, M.N., “FPI disperses Waria contest in Makassar”, Detik News, 1 December 2010. 57 4th Asia meeting of the International Lesbian and Gay Association, scheduled for 26-28 April 2010 in Sura- baya, East Java. At the same time the secretariat of the organising group, Gaya Nusantara, was closed down by the

closed down and called ‘moral terrorist’”, detikSurabaya, 26 March 2010.) FPI, who wrote on its walls that lesbians and gays were “moral terrorists”. (See Jajeli, R., “Office of Gaya Nusantara 58 This was said by FPI leader Habib Idrus Al Ghodri to the police of Depok, who interrogated the leaders of the FPI after their raid on the transgender group. (See Jakarta Post, “Raid of Transgender workshop necessary: FPI”, 5 May 2010.) Tempo.co. Interaktif, 17 May 2010. 60 Mulia, M., “Understanding Sexuality in Islam: Promoting the Appreciation of Human Dignity”, undated, avail- 59 Rofiudin, “MUI tolak perkawinan waria” (MUI prohibits waria to marry), able at: may-2009/Understanding_Sexuality_in_Islam.rtf. http://www.asiapacificforum.net/support/issues/sexual_orientation/downloads/apf-regional-workshop- 61 Joseph, S., “Family Law”, Encyclopedia of Women in Islamic Culture, Brill, 2003, p. 419.

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In Pursuit of Marriage Equality in Ireland: A Narrative and Theoretical Reflection

Katherine Zappone1

1. Kick-starting the Irish Debate on Mar- - riage Equality plishments and our failures. We committed ourselvesour fears, ourto eachfinancial other resources, and we ourdiscovered accom With the introduction of a civil union law unimaginable joy. in the world to recognise legally same-sex We moved to Ireland in 1983 where Ann Lou- relationships.in 1989, Denmark2 Nordic became countries the first followed country ise re-assumed her teaching position at Dub- suit with similar laws and a global debate lin City University. In 1995 I had the privilege ensued about same-sex relationship rec- of becoming an Irish citizen and so now hold dual USA and Irish citizenship. The European country to make civil marriage available to and global debate on relationship recognition same-sexognition. couples The Netherlands in April 2001. was3 While the first the had not reached Ireland at this stage. This UK extended the Civil Partnership Act 2004 lack of debate was a part of the context with- to Northern Ireland in 2005, the Republic of in which we later made the decision to take Ireland continued to ignore same-sex rela- what was to become a landmark legal case for tionships in its laws. When my spouse, Dr. the recognition of our relationship. Ann Louise Gilligan, and I sought to have our Canadian marriage recognised through 2. Ireland and Homosexuality the Irish courts we sprung to international attention and kick-started the domestic de- Ireland is a constitutional democracy based bate in Ireland on the legal recognition of on its 1937 constitution. This constitution same-sex relationships. - lic mind-set of its time and has undergone Ann Louise, an Irish citizen, and I have relevantlywas reflective little ofreform the conservative since it came Catho into shared a parternership for the past 30 years. force. In 1977, Senator David Norris initi- We met in Boston College when we both ated a case to decriminalise homosexuality. started a PhD programme together. She came At the time, homosexual relations between from Dublin and I came from New York City, men were prohibited by law.4 Norris argued though I am originally from Seattle. A year that his constitutional right to privacy was after we met, in 1982, we gathered a small violated. In 1980 the Irish High Court ruled group of friends to celebrate with us a life- against him. In 1983, the Supreme Court, by partnership ceremony. That day we found laws did not contravene the Constitution, and life-long cherishing of each other into havinga three-to-two regard to majority, the Christian affirmed nature that of the theour future. voice toWe proclaim promised a to promise share our of dreams, fidelity state, the immorality of the deliberate prac-

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tice of homosexuality, the damage that such Irish Constitution as well as those laid out practices cause to the health of citizens and in international treaties that the Irish state the potential harm to the institution of mar- is party to. Under the Agreement the gov- riage.5 Senator Norris, with the assistance ernment in the Republic is also obliged to of future Irish President, Mary Robinson take steps to further strengthen the protec- (his senior counsel at the time) then took tion of human rights within its jurisdiction. the case to the European Court of Human The Agreement stipulates that any meas- Rights. Norris won the case in 1988 with a ures brought forward “would ensure at least judgment that Irish laws contravened Arti- an equivalent level of protection of human cle 8 of the Convention for the Protection of rights as will pertain in Northern Ireland”.10 Human Rights and Fundamental Freedoms (ECHR) (the right to respect for private UK and Northern Ireland, at the turn of the and family life).6 millennium,When civil unions the debate were hadfirst little mooted impact in theon through the campaigning of a national non- discourse in the Republic. Few questions governmental organisation It took five calledyears –Gay largely and were raised around equivalence of rights Lesbian Equality Network (GLEN) – to get south of the border in the context of the Good the laws changed to decriminalise homo- Friday Agreement. sexual behaviour in 1993.7 The explicit issue of partnership rights for Coming to a more recent context, Ireland - prides itself on its robust equality legislation cal agenda with the publication of a report introduced in the late 1990s and early twen- bysame-sex Ireland’s couples statutory first body, came the onto Equality the politi Au- thority.11 The Equality Authority gathered a within the civic sphere (lobbying and cam- group of civil servants and representatives of paigningty-first century. by a number In light of of equality effective groups) activity NGOs to produce a report which argued that and various government-sponsored reports, Irish laws should be amended to extend part- Ireland enacted comprehensive equality leg- nership rights to same-sex couples. This was islation. This focused on equal pay; protec- followed by another report of the National tion in employment and against harassment; Economic and Social Forum (established by and protection for the equal provision of statute) of civil servants, NGOs and politi- goods, services, accommodation and edu- cians, which came to similar conclusions and cation across nine grounds: gender, marital made similar recommendations.12 However, status, family status, sexual orientation, re- neither report went as far as to recommend ligious belief, age, race, disability and mem- directly any form of legal recognition of part- bership of the traveller community.8 nership between same-sex couples. While the National Economic and Social Forum’s In 1998 the Good Friday Agreement was report did argue that extending rights to signed in Belfast. This established the North- same-sex couples such as the right to nomi- ern Ireland Assembly with devolved legisla- nate a partner, pension and next of kin rights tive powers and a power-sharing executive. would have a profound impact on achieving Under the agreement national human rights equality, it also said that: institutions were established in both North- ern Ireland and the Republic.9 The govern- “It was the strong view of the Team that ment in the Republic is obliged to promote State recognition of these partnerships was and protect human rights as laid out in the not essential for the Government to make

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progress in relation to implementing greater the property and inheritance rights afforded equality for LGB people.”13 to married couples and that the Equality Au- thority’s group had endorsed similar chang- 3. Taking a Case for Marriage Equality es in the law.14

This was the context and backdrop, then, Over the next two years you could count on against which Ann Louise and I began to con- one hand the number of articles published in template the possibility of taking a legal case that same newspaper on this topic. With the to have our relationship recognised. While knowledge we had about the very tenuous we were both active within the civic sphere relationship between recommendations in in relation to many human rights issues, es- policy documents and subsequent, substan- pecially those related to the poverty and eco- tive change, we discerned that little was go- nomic inequalities in the lives of Irish people, ing to happen unless there was a grass-roots we had no involvement in LGBT (Lesbian, mobilisation to bring pressure to bear on Gay, Bisexual, Transgender) rights work. lawmakers or some kind of legal challenge The personal origins of our case began late within the courts. This is how things had in 2001 – after 19 years of life-partnership – been changed in other jurisdictions and so when an impending visit to Chile prompted we assessed that the same would be true for a visit to our solicitor to update our wills. Ireland. In April 2002, we took a decision to We jointly owned our home, and we also jointly owned another property together. and wrote to the Equality Authority to see We thought it would be wise to organise our iffind they a pathcould to help legalise us to ourdiscern life-partnership what might affairs just in case anything happened to us be the best possible route. In the meantime I during our time abroad. What we discovered met a couple of times with members of GLEN that day was that, unlike married couples who were working on a bill for “domestic who jointly own property, we could not will partnership” legislation that they hoped the half of our property to the other upon death independent senator, David Norris, would of one of us without major capital acquisition bring into our parliament.15 Unfortunately taxation implications. Effectively, the surviv- the bill in question read more like a proposal ing partner would have to sell the property for a business contract between two people in order to pay the tax; what we thought was who co-habit, something which did not at

nor did there appear to be any mobilisation Onfinancial that securityday we wasstarted clearly on not. a long road behindall reflect the the effort. nature Further, of our Norris’ life-partnership, independ- through the valley of fear. One of the primary ence as a Senator – as distinct from being a reasons that we eventually decided to take a member of government – did not place him case was because of the public silence about in a strong position to get such a bill enacted. partnership recognition between same-sex Consequently, Ann Louise and I decided to couples in Ireland. If one were to review the form a legal team in 2002 and in July of 2003 Irish Times newspaper archives today, one we decided to take a constitutional case. About a week later the miraculous possibil- any mention of rights for Irish same-sex cou- ity opened up that we could marry in British pleswould was discover in December that the 2002.first time The there editorial was Columbia, Canada. At the time it was the only commented on the fact that the British gov- place in the world (apart from two other Ca- ernment intended to extend to gay couples nadian provinces) where same-sex couples

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could marry without being citizens or resi- - dents.16 So in September 2003 we married stance of marriage. We married each other each other in the presence of our American becausenificant, wethey wanted are not to thebind full ourselves sum and in sublaw, and Irish families in the great country of as well as in love, to receive societal support Canada with its Charter of Human Rights and for our commitment and the generativity Fundamental Freedoms. - cause in that one act we were able to exercise Our decision to take a legal case to have our ourthat humanflows from freedom it. We for married the single each othermost imbe- marriage recognised in Ireland was a mul- portant choice of our lives. A psychic well-be- tifaceted one. We decided to go to court to ing accrues when oppression and prejudice seek justice for ourselves as is our right to lift. That is why we are taking a court case, do so within a democracy. The Irish Con- for ourselves, as well as for others. stitution states that “all the powers of government, legislative, executive, and judicial, We believed that interplay between the judi- derive, under God, from the people”,17 and cial, civic and legislative processes in Ireland proclaims further that “[j]ustice shall be administered in courts established by law the issue forward. In going to court, the fact by judges appointed”.18 At a personal level would have a significant impact on moving we wanted to ensure that our fundamen- Instead of seeking a marriage license, we tal rights are protected in the same way as simplyof our marriage wrote to influenced the Irish Revenue our legal Commis strategy.- other citizens. The courts structure is there sioners to ask for a change in our marital sta- precisely to provide citizens with this way tus. When they refused (within a very polite of practicing democracy. letter that addressed us “dear ladies”!) we sought and were granted a judicial review in Our senior counsel informed us that the November 2004, with public coverage both Irish Constitution is not “permafrost” in the nationally and internationally. That was period of 1937, when it was written, and when the public debate in Ireland ensued. that it is a “living document” that requires We went to court in October 2006, and in De- re-interpretation as society changes and cember we lost the case.19 We also lost our evolves over time. We asked ourselves, how costs because Justice Dunne deemed there to is this foundational document to maintain be no exceptional circumstances to justify an its life, if “we the people” do not engage with order for costs against the state.20 it? We went to court in 2003 because we felt there was a lack of civic and statutory activ- Our primary legal arguments included that ity and because we believed that the courts homosexual identity is a normal way of be- played a crucial role in the protection of ing human and that as such we have a human minorities. We also held an ethical vision right to marry the person we choose to love. that combines a commitment to equality (a We argued that this right is implicit within substantive, not “incremental” notion), free- the Irish Constitution and that the Constitu- dom, liberty and love. - tween a man and a woman, also guarantees Marriage, for us, is not simply about a basket ustion, equality which beforedoes not the define law.21 marriageWe were asof thebe - view that the Constitution could be re-interpreted to recognise our Canadian marriage, lifeof rights, decision. responsibilities While these and are financialextremely bene sig- otherwise our human rights are not protect- fits that come in the wake of such a profound

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ed and we are being discriminated against Constitution excludes the possibility of mar- because of our sexual identity. riage equality through legislative reform.

Irish Constitutional lawyer, Dr. Conor O’Mahony, posits that the High Court, in theThe Constitution High Court it ruled is understood against us, to refer finding to our case, effectively reversed the estab- marriagethat while between marriage people is not of defined the opposite within lished order of constitutional interpreta- sex and that this understanding has been tion.24 Justice Dunne had accepted that the reinforced in recent judgments of the Irish Constitution is a “living” document and that courts. Justice Dunne did not engage with it should evolve in light of societal change. the discrimination argument and expressed O’Mahony points out that legislation passed her concern for the “welfare of the children”, by parliament attracts a presumption of thereby justifying that the state take a cau- constitutionality but that the Constitution tious approach on the issue. The Court found - assessed against this interpretation. In our sensus” which would support displacement casemust O’Mahony be interpreted suggests first thatand the Courtlegislation sub- ofinsufficient the opposite evidence sex rule of andany it“emerging pointed to con the verted this supremacy of laws and held that limited number of jurisdictions in which the ban on marriage for same-sex couples extended because of how the legislature de- had been lifted. In particular, Justice Dunne the constitutional definition could not be a woman in the CRA 2004.25 The Minister for Ireland’s Civil Registration Act 2004 (CRA Justicefined marriage of the time, as being Brian betweenLenihan, acomment man and- took the definition of marriage contained in- ed to media that the government could not tween a man and a woman as an indication legislate for marriage for same-sex couples 2004) which defines marriage as being be as the legal advice they had received from of marriage. the Attorney General (the government’s le- of the “prevailing view” as to the definition gal advisor) was that any such legislation It was only after we received permission to would be unconstitutional.26 The Minister take our case that the CRA 2004, which de- also stated that, based on this legal advice, a constitutional referendum would be re- woman, was quietly passed by parliament.22 quired to provide for marriage equality and Thefines effective marriage ban as beingon marriage between equality a man andwith a- further expressed his view that holding such in this piece of legislation was added by way a “divisive” referendum would be unsuc- of a last minute amendment that was not de- cessful. Therefore, the government refused bated in either house of parliament nor did it to hold a supposedly necessary referendum appear to come to the notice of NGOs work- and the courts held that the legislature had ing in the equality sector.23 expressed the will of the people through legislation which had never even entertained The High Court judgment in our case estab- the possibility of marriage equality in its lished that the Constitution does not require drafting due to the supposed ban. In the ab- marriage to be opened to same-sex couples sence of leadership from the political realm and suggests that the appropriate avenue of and with undue deference to the legislature reform lies with the legislature which had ex- from the courts, where did that leave the pressed its will in the CRA 2004. The Court question of marriage equality? It seems the never addressed the question of whether the

answer was very firmly: “Catch 22”.

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4. Advocacy Activity for Marriage Equality marriage for same-sex couples. A group of younger citizens formed LGBT Noise, and Enormous activity has taken place in the last other civic groups are participating in the seven years, since we started the case. Soon civic debate – all advocating that marriage is after we received permission to take the the “full equality” option, though some hold case, an advocacy group, the KAL Initiative, the view that “incremental steps” towards was formed to build public support for the equality, in the form of a civil partnership right to marriage for same-sex couples. The scheme, were better than none at all. then Minister for Justice, Michael McDow- ell, established an expert group to outline 5. Civil Partnership in Ireland to the state the various options to legalise “domestic partnerships”.27 This expert group Central to incremental change was the intro- explored various forms of legal recognition duction of the Civil Partnership and Certain for opposite-sex, same-sex and non-conjugal Rights and Obligations of Cohabitants Act relationships. The group examined the ques- 2010 (CPCROCA 2010). Though the measure tion of civil marriage for same-sex couples as rightly attracted criticism from within the well as a limited civil partnership scheme and LGBT community for being inadequate and a full civil partnership scheme that would be segregationist, it became law with cross-par- equivalent to marriage. The group was of the ty support in the Irish Parliament31. The CP- view that civil marriage may be vulnerable CROCA 2010 provides for a civil partnership to constitutional challenge and stated that registration scheme for same-sex couples judgment was awaited in our case.28 How- only, as well as a presumptive scheme for co- ever, the group’s report went on to state that: habitants which can be for either same-sex or opposite-sex couples. It extends a number “The introduction of civil marriage for of rights and duties to same-sex couples in- same-sex couples would achieve equality of cluding taxation, succession and immigra- status with opposite-sex couples and such tion. It further provides for a redress scheme recognition that would underpin a wider equality for gay and lesbian people.”29 lived together for three years) to claim from thefor “qualifiedestate of the cohabitants” deceased partner (those whoor for have the During this same period (after we had plead- economically dependent cohabitant to claim ed our case and before judgment) one of the maintenance, accommodation and pension opposition parties put forward a limited civil rights when the relationship breaks down. union bill which was rejected by the government.30 In each case of discussion of options rights, the civil partnership envisaged under for same-sex couples, the government has theWhile CPCROCA providing 2010 for isa notnumber equivalent of significant to civil argued, on the basis of advice from the Attor- marriage. An audit conducted by Marriage ney General, that marriage for same-sex cou- Equality found that there are over 169 dif- ples is unconstitutional, even though this has ferences between the rights available in civil not been determined by the Supreme Court. partnership and those accruing in civil marriage (excluding constitutional rights, case- After our loss in the High Court, the KAL law and social welfare legislation).32 Initiative evolved into the advocacy group Marriage Equality, which has been building The CPCROCA 2010 provides for dissolution public awareness and acceptance for civil of a civil partnership but there is a lower

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threshold for dissolution than there is for di- - vorce in the case of civil marriage. Married cial legislative programme and it remains to couples are required to wait for four years in besuch seen legislation if marriage is not equality currently will onbe thein place offi order to divorce whereas civil partners must before its enactment. wait for only two years. This distinction is arguably indicative of the greater value the 6. Civil Partnership and Civil Marriage state places on the institution of marriage compared with civil partnership. In May 2011, I was appointed as an independent Senator to the Irish Senate by An The CPCROCA 2010 creates a new designa- Taoiseach (Prime Minister) Enda Kenny. This tion for same-sex couples’ family homes, immense privilege gave me the opportunity calling them “shared homes”. The denial of to become, not only a law challenger, but a the term “family home” means that same- law maker. This opportunity has allowed me sex families are not brought within the to engage directly in the legislative process protection of the Family Home Protection and to have an impact on the lives of people Act which prevents the sale, mortgage or and particularly LGBT people. as a “family home”.33 - An opening arose to amend the Irish Nation- re-mortgagependent child of extends a property beyond that biological is defined or ality and Citizenship Act in order to reduce legally adopted children, The anddefinition includes of anon- de some of the discriminatory elements be- biological children, “where one spouse has tween the institutions of civil partnership knowingly treated a child as a member of the and civil marriage in July 2011.38 I put for- family”.34 - ward three successful amendments to the tion, dependent children in LGBT families Act. Under the law as it stood, spouses of are omitted Despite from this such existing protections broad definiunder Irish citizens seeking naturalisation could the CPCROCA 2010.35 This differentiation avail themselves of more favourable eligi- bility conditions than applied to civil part- under the Irish Constitution as being based ners of Irish citizens. For example, spouses onis rooted marriage; in the therefore fact that a civil“family” partnership is defined is needed only to reside in Ireland for three excluded from the constitutional protections years in order to be eligible for citizenship afforded to the marital family.36 when the requirement for civil partners was

There is little to no provision for same-sex longer the case. My amendments also ensure couples with children under the CPCROCA thatfive years.the death This of form an Irishof discrimination citizen or the is loss no 2010. Joint adoption is not available to same- of his or her citizenship does not impact on sex couples in Ireland and guardianship can- the citizenship of his or her civil partner or not be extended to a non-biological parent. children. The third amendment makes cer- Although same-sex couples cannot apply tain that when an Irish citizen enters into a to adopt jointly, a single LGBT person may civil partnership with a non-national, they do apply to be considered as an adoptive par- not lose their Irish citizenship due to the civil ent. The Minister for Justice, Alan Shatter, partnership even if they acquire the nation- recently indicated that his department was ality of the non-national. This amendment, working on legislation to address the rights as with the previous amendments, simply of children and parents in separate legisla- mirrors the provisions relating to married tion.37 While this announcement is welcome, couples in the Act.

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be given a date for an appeal to the Supreme of taxation. I put forward a number of rec- Court. Our legal team decided that, in light ommendationsI also effected significant on the Finance change inBill the No. area 3 of the High Court judgment, our strategy (2011) to the Minister for Finance, Michael should incorporate a direct constitutional Noonan, in order to achieve parity between challenge to the section of the CRA 2004 same-sex and opposite-sex couples in the tax code. The Minister agreed that I had man and a woman. In late 2011, the Supreme Courtthat defined heard our marriage motion asto beinginclude between this chal a- relief on maintenance payments. Tax relief lenge but we were turned down. Justice Liam onidentified maintenance a disparity for a spouse with regard in marriage to tax McKechnie suggested that the best thing to attracted tax relief at the time of a deed of separation or a judicial separation, but, in new proceedings. In June 2012, we initiated the case of civil partners, tax relief was not ado new was case to returnin order to to the challenge High Court directly and sec file- a possibility on maintenance payments un- tion 2.2(e) of the CRA 2004 as well as the til a statutory dissolution or an annulment. corresponding ban in the CPCROCA 2010 The Minister undertook for his department, that prevents same-sex couples from mar- the Revenue Commissioners and the Attor- rying.42 We will also challenge section 5 of ney General to examine my recommenda- the CPCROCA 2010 that covers recognition tion. Subsequently, the Finance Act 2012 of foreign registered relationships and has provides that in cases where a civil part- the effect of downgrading marriages that nership breaks down and a legally binding take place in other jurisdictions by recognis- agreement between the parties is drawn up, ing them as civil partnerships in Ireland. My this agreement will be recognised for tax spouse and I are considered to be civil part- purposes.39 The Act also places civil partners whether we want to be or not. In taking nerships on the same footing as married this new case and dropping our appeal to the relationships, whereby it is accepted that Supreme Court we no longer risked being following the break-up of a relationship pursued by the state for its costs, as well as people may continue to live under the same our own, stemming from the original case. roof but may be considered separately for income tax purposes.40 8. The Current Climate

During the debate on the Finance Act 2012 - groups such as Marriage Equality and LGBT tween civil partnership and civil marriage Noise,Significant together on-going with grass advocacy roots mobilisation work by andI identified the Minister further undertook areas of inequalityfor remaining be of the LGBT community and its allies, has re- gaps to be addressed in as far as constitu- shaped the social and political landscape in tionally possible.41 Meetings between my of- Ireland. Successive polling has shown that - ing with a view to the issues being addressed fice and the various departments are on-go ofthe marriage general public for same-sex are very firmlycouples. on43 the At sidethe endof equality of 2012 with the majoritysignificant of marginsparties in in Ireland favour 7.in Aforthcoming New Case forfinance Marriage bills. Equality support marriage equality: the Labour Party, Fianna Fail, Sinn Fein, and the United Left After the High Court ruled against us in De- Alliance, leaving only the main government -

cember 2006, we waited five long years to party, Fine Gael, to come to a firm policy posi

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tion. All parties appear to be operating under ples” and that the right to marry in Article the assumption that a constitutional amend- 49 ment would be required to make provision In Schalk and Kopf v Austria the ECtHR rec- for marriage equality. The two government 12ognised is not that confined a same-sex to opposite-sex couple in couples.a de facto parties, Fine Gael and the junior coalition relationship was entitled to be protected as a partner, Labour, reached agreement in the 2011 Programme for Government that the the Court ruled that the ECHR does not oblige question of provision for same-sex marriage memberfamily under states Article to provide 8. Despite access these to marriage findings would be put to the Constitutional Conven- for same-sex couples and that member states tion (a body of politicians and citizens), that have a wide margin of appreciation when it would examine various issues designated for comes to the introduction and nature of oth- reform.44 The government has committed to er means of relationship recognition.50 addressing the decision of the Constitutional Convention within four months of it report- Currently eight European Economic Area ing but any subsequent action is dependent (EEA) countries provide for marriage equal- on cabinet approval.45 The government has ity, namely Belgium, Denmark, Iceland, the not committed to holding a referendum on Netherlands, Norway, Portugal, Spain, and the issue despite the Tanaiste (Deputy Prime Sweden. A further thirteen countries pro- Minister) Eamon Gilmore indicating that he vide for a form of partnership.51 While civil is in favour of such a vote.46 Happily, an in- marriage rights tend to be relatively uni- creasing number of senior politicians, when form from country to country, various forms asked for a view on marriage equality, are of partnership laws exist which range from voicing their own personal views (in favour) equivalence with marriage to a limited selec- and this is certainly an advance on the de- tion of rights and responsibilities, for exam- fault position of pointing to a supposed con- ple, the Pacte Civil de Solidarité (PACS, Civil stitutional impediment.47 Solidarity Pact) in France.52 Currently LGBT couples and families experience a disjoint- 9. European Protections? ed set of laws across the EU. This veritable - In the past, Ireland was helped on the pro- gal uncertainty regarding mutual recognition gressive path by efforts at a European Un- ofpatchwork civil status of laws and gives second rise parent to significant adoption le ion (EU) level. Arguably Ireland would have when same-sex couples exercise their right taken considerably longer to amend its laws to freedom of movement. The Freedom of in relation to homosexuality and women’s Movement Directive53 provides for the free- rights if it had not been a member of the EU. dom of movement of EEA citizens and their However, apart from the areas of employ- - ment, health and education there are few tered same-sex partner if the host country binding legal measures at EU level that ad- treatsdependents, that registered specifically partnership a spouse oras aequiva regis- dress discrimination against LGBT people lent to marriage.54 According to the Freedom and families.48 Despite the politically divi- of Movement Directive unmarried or unreg- sive nature of relationship recognition in istered partners in a “durable relationship” some member states, the European Court of can be included by way of national legisla- Human Rights (ECtHR) has recognised that tion.55 It would appear that, at a minimum, there is an “emerging European consensus member states are obliged to “facilitate entry towards legal recognition of same-sex cou- and residence” for a dependent or “member

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of a household” of a citizen,56 however rights In 2010 the European Council agreed the group ILGA Europe believes the meaning of EU’s direction on justice issues for the the provision to be unclear and the right to next five years with the Stockholm Pro- freedom of movement to be curtailed.57 In a gramme.62 Under this plan the European 2009 resolution, the European Parliament Commission published a Green Paper on expressed concern about the restrictive in- the freedom of movement to open a debate terpretation used by member states of the on the mutual recognition of civil status records.63 Proposals on the recognition of particularly in relation to same-sex part- certain civil status documents (e.g. filiation ners.definition58 Given of “familythat EU member”secondary and legislation “partner” is and adoption) so that legal status granted either silent on the rights of same-sex cou- in one member state can be recognised ples or leaves the determination of recogni- and have the same effect in another are tion to member states, the fundamental right expected in 2013.64 There is more hope for of freedom of movement is rendered largely these proposals than the stalled 2008 Anti- illusory for such families. Discrimination Directive which would have extended protection from discrimination Similar issues arise when LGBT families on the grounds of religion or belief, disabil- with children relocate to EU Member States ity, age, or sexual orientation in the areas which do not recognise second parent adop- of social protection, social advantages, and tion. While a durable relationship may ex- access to goods and services.65 ist between all of the family members, the destination country may not recognise the Such measures are indeed promising but parental rights of non-biological parents.59 the wheels of the EU legislative process grind slowly and it may be some time be- as denying a non-biological parent the right fore ordinary citizens feel the benefit of toThis make can leaddecisions to numerous in relation difficulties to a child’s such the Green Paper proposals. As the Court - of Justice of the European Union recently cation Directive does little to address the reiterated in Römer v Freie und Hansestadt problemseducation facing or health. LGBT families. The Family60 This Reunifi Direc- Hamburg, “the marital status of persons tive applies when both individuals are third falls within the competences of the Mem- country nationals and neither is a citizen of ber States”.66 While it remains the charge of a member state of the EU. It allows spouses national governments and domestic courts who are third country nationals to be unit- to protect and vindicate the rights of LGBT ed with third country nationals residing people and their families, they must not lawfully in the territory of a member state. shirk this duty. However, member states retain discretion on whether to extend this right to same-sex It is hoped that the Zappone/Gilligan legal registered (or unregistered) partnerships. case, Irish advocacy efforts and the grow- If same-sex couples do not have the option ing social consensus emerging as a result to enter into a legal partnership that will be will ensure that Ireland fulfils that duty, recognised by the EU country where they and in doing so acts as a catalyst for greater protections of LGBT people throughout discriminated against.61 all of Europe. are seeking reunification they are indirectly

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1 Dr. Katherine Zappone currently serves as a Senator in the Irish Senate and is Director of the Centre for Progressive Change, Ltd. She has recently been nominated to the Irish Delegation to the Parliamentary Assembly of the Council of Europe. She was a Commissioner with the Irish Human Rights Commission from 1999 to 2011. 2 Danish Registered Partnership Act D/341- H- ML Act No. 372 of June 1, 1989. 3 Act of 21 December 2000 amending Book 1 of the Civil Code, concerning the opening up of marriage for persons of the same sex (Act on the Opening up of Marriage). 4 Offences against the Person Act 1861; Criminal Law Amendment Act 1885. 5 Norris v A.G. [1983] IESC 3. 6 Norris v Ireland, European Court of Human Rights, Application No. 10581/83. 7 Criminal Law (Sexual Offences) Act 1993. 8 Employment Equality Acts 1998-2011, Equal Status Acts 2000-2011, Equality Act 2004. 9 The Good Friday Agreement (also known as the Belfast Agreement), Paragraph 9 of the Rights, Safeguards and Equality of Opportunity. 10 Ibid. 11 The Equality Authority, Partnership Rights of Same Sex Couples, 2000, available at: http://www.france.qrd. org/texts/partnership/ie/equality200006.pdf. 12 National Economic and Social Forum, Equality Policies for Gay Lesbian and Bisexual People: Implementation Issues, 2003, available at: http://www.glen.ie/attachments/458a2d0f-f316-41ab-942c-d0d623a1097b.PDF. 13 Ibid., p. 7. 14 The Irish Times, “Gay Rights”, 10 December 2002, p. 17. 15 Civil Partnership Bill 2004. 16 Civil Marriage Act 2003. 17 Bunreacht na hEireann (Constitution of Ireland), Article 6. 18 Ibid., Article 34.1. 19 Zappone & Anor v Revenue Commissioners & Ors. [2006] IEHC 404. 20 The Irish Times, “Lesbian Couple set to Appeal Marriage issue to Supreme Court”, 22 December 2006, p. 4. 21 See above, note 17, Article 41.1. 22 Civil Registration Act 2004, section 2(2)(e). 23 Dáil Select Committee on Social and Family Affairs, February 3, 2004, amendment No. 9. 24 O’Mahony, C., “Societal Change and Constitutional Interpretation”, Irish Journal of Legal Studies, Vol. 1, No. 2, 2009, pp. 71-115. 25 See above, note 22. 26 O’Brien, C., “Lenihan rules out ‘divisive’ referendum on gay marriage”, The Irish Times, 5 December 2007. 27 The Working Group on Domestic Partnership, Options Paper on Domestic Partnership (The Colley Report), 2006, available at: http://www.justice.ie/en/JELR/OptionsPaper.pdf/Files/OptionsPaper.pdf. 28 Ibid., p. 49. 29 Ibid., p. 50. 30 Civil Union Bill 2007. 31 Carbery, C., “Dublin Pride celebrations soured by anger over Civil Partnership Bill”, The Irish Times, 29 June 2009. 32 Marriage Equality, Missing Pieces Report, 2011, p. 17. 33 Ibid., p. 13. 34 Family Home Protection Act 1976, section 1(1)(b). 35 See above, note 32, p. 6. 36 See above, note 17, Article 41.3.1.

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37 Speech delivered by Alan Shatter TD, Minister for Justice, Equality and Defence at meeting of Fine Gael LGBT Group 20 November 2012, available at: http://www.justice.ie/en/JELR/Pages/SP12000321. 38 Civil Law (Miscellaneous Provisions) Bill 2011, section 33(c). 39 Finance Bill 2012, section 134(h)(a). 40 Ibid., section 134(c). 41 Finance Bill 2012 Committee and Remaining Stages, 22 March 2012, available at: http://debates.oireachtas. ie/seanad/2012/03/22/00006.asp. 42 CPCROCA 2010, section 7(2A)(7). 43 67% (Behaviour Attitudes poll, The Irish Times, September 2010); 73% (Red C poll, The Sunday Times, March 2011); 66% (Behaviour and Attitudes poll, The Irish Times, October 2012). 44 The Labour Party and Fine Gael, Statement of Common Purpose, 2011, available at: http://per.gov.ie/wp- content/uploads/ProgrammeforGovernmentFinal.pdf. 45 Speech by Taoiseach Enda Kenny at the Launch of the Constitutional Convention, 1 December 2012, available at: http://www.merrionstreet.ie/index.php/2012/12/speech-by-the-taoiseach-mr-enda-kenny-t-d-at- the-launch-of-constitutional-convention/. 46 Carbery, G.,“Gilmore Wants Gay Marriage Vote”, The Irish Times, 13 November 2012. 47 Sheahan, F., “Gilmore’s call for gay marriage supported by Labour”, Irish Independent Newspaper, 3 July 2012. There is also a debate emerging that questions the insistence that a constitutional amendment is necessary “Constitution is not an Obstacle to Legalising Gay Marriage”, The Irish Times, 16 July 2012; see also Daly, E., “Same-sex Marriage doesn’tto provide need for a marriage Referendum equality”, Human when Rights the Constitution in Ireland, 15 does July not 2012.) define marriage. (See O’Mahony, C., 48 Directorate-General for Internal Policies, Towards an EU Roadmap for Equality on Grounds of Sexual Orientation and Gender Identity, 2012 p. 22, available at: http://www.statewatch.org/news/2012/oct/ep-report- on-sexual-orientation-gender-equality.pdf. 49 Schalk and Kopf v Austria, European Court of Human Rights, Application No. 30141/04, 2010. 50 Ibid. 51 ILGA Europe, Annual Review of the Human Rights Situation of LGBTI People in Europe, 2011. 52 Loi No. 99-944 du 15/11/99 relative au Pacte Civil de Solidarité. 53 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States (The Freedom of Movement Directive). 54 Ibid. 55 Ibid., Article 3(2)(b). 56 Ibid., Article 3(2)(a). 57 See above, note 51; see also ILGA Europe, Lesbian, Gay, Bisexual and Transgender Families and the Free Movement Directive: Implementation Guidelines, 2009. 58 European Parliament Resolution of 2 April 2009 on the application of Directive 2004/38/EC. 59 Ibid., p. 43.

61 See above, note 48, p. 42. 60 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. 62 The Stockholm Programme (2010/C 115/01), available at: http://eurlex.europa.eu/LexUriServ/LexUriServ. do?uri=OJ:C:2010:115:0001:0038:en:PDF. 63 Green Paper: Less Bureaucracy for Citizens Promoting Free Movement of Public Documents and Recognition

64 See above, note 48, p. 45. of the Effect of Civil Status Records, COM(2010) 0747 final. 65 Proposal for a Council Directive on implementing the principle of equal treatment between persons

66 Case C-147/08 Jürgen Römer v Freie und Hansestadt Hamburg, CJEU 10 May 2011. irrespective of religion or belief, disability, age or sexual orientation, COM(2008) 426 final.

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Case Note: Indirect Discrimination, Reproductive Rights and the In Vitro Fertilisation Ban

Ariel Dulitzky1 and Hannah Zimmermann

In December 2012 the Inter-American Court practice of in vitro fertilisation (IVF) was of Human Rights (the Court) published its unconstitutional and imposed an absolute decision in a case challenging Costa Rica’s ban on all IVF practices.2 The Constitution- 12-year absolute ban on all in vitro fertilisa- al Chamber’s decision was in response to a tion (IVF) practices. The ban, implemented Presidential Decree, signed by the then-Pres- in 2000, applied to all citizens and prohib- ident J.M. Figueres in 1995, that had author- ited access to IVF techniques within the ised IVF for married couples and regulated country. Couples who were in the middle of its practice.3 IVF procedures were forced to stop all treat- decree and the Constitutional Chamber rul- ments or to choose to travel abroad to pur- ing, couples underwent In the five IVF years procedures between and the sue further treatments. In 2004, ten couples 15 babies were born in Costa Rica as a result petitioned the Inter-American Commission of these procedures.4 on Human Rights (the Commission), alleging that the ban violated the right to private The decision of the Constitutional Chamber and family life, the right to found a family, in 2000 halted attempts to create biological and the principle of non-discrimination en- offspring for several couples, many of whom shrined in the American Convention on Hu- were beginning or in the middle of necessary man Rights (the American Convention). The treatments for IVF. The only Latin American Commission asked Costa Rica to end the ban, state to impose such an absolute ban, Costa but they failed to do so and the Commission Rica’s decision was soon challenged by a referred the matter to the Court. The bulk group of couples who were undergoing or of the Court’s opinion tackles questions re- planning to undergo IVF at the time of the garding the right to life and at what point an ban.5 After the imposition of the ban, cou- embryo or foetus becomes protected under ples were either unable to pursue the only the American Convention, but it also devotes possible path to procreation or were forced some analysis to the question of indirect to go abroad to seek treatment. Travelling discrimination, thereby making important to undergo IVF is a complicated and costly in-roads into equal access to reproductive undertaking, and one that is available only health treatments and protecting the autonomy of couples to make decisions regarding do so. As a result, many couples waiting to when and how to have a child. undergoto those couplesIVF at the with time sufficient of the ban resources were left to with no recourse, and no ability to conceive 1. Case Background a biological offspring.6

In 2000, the Constitutional Chamber of the When the Commission was petitioned in Costa Rican Supreme Court ruled that the 2004, it found that the absolute ban on IVF

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was an arbitrary interference into the right not explicitly include disability or health to private and family life, the right to found a status as a prohibited ground for discrimi- family, and the right to equality.7 Additionally, nation. Thus, the Court was asked to rule if the Commission found that the ban dispro- those grounds were covered by the words portionately impacted women.8 In 2010, the “all other status”. Commission issued a series of recommendations to Costa Rica, asking them to end the According to the Court’s case law, laws and absolute ban that was violating the above policies can be discriminatory when distinc- rights.9 In the absence of real, implemented tions among social groups arise and lack “ob- change, one year later the Commission sub- 14 Rea- mitted the case to the Court.10 sonableness is determined on a case-by-case basis,jective and and this reasonable involves justification”.the consideration of 2. Recapitulation of Inter-American Non- legality, suitability, the existence of a legiti- discrimination Case Law mate aim and/or less restrictive means, and a proportional balancing of public and pri- The Court examines three primary rights in vate interests.15 their decision: the right to life, the right to private and family life, and the right to found Under inter-American jurisprudence, indi- a family, as well as the principle of non-dis- rect discrimination may arise when a law or crimination enshrined in the American Con- policy that appears neutral has a dispropor- vention.11 Article 1 of the American Conven- tionate impact on certain sectors of the pop- tion requires states to respect and ensure the ulation in exercising their rights under the enshrined rights, without discrimination re- American Convention, on the basis of pro- garding “race, colour, sex, language, religion, hibited grounds.16 A law or policy may have political or other opinion, national or social a disproportionate and therefore discrimina- origin, economic status, birth, or any other tory effect when its objective or impact dis- social condition”.12 advantages certain groups in society.17

The Commission and the Court have fre- In order to comply with standards of non- quently held that non-discrimination is a discrimination, the Court has held that states fundamental principle of the human rights are obliged not to: system. Although the American Convention “[I]ntroduce discriminatory regula- - tions into their laws, to eliminate regulations nationaldoes not Convention define discrimination, on the Elimination the Court of of a discriminatory nature, to combat prac- Alluses Forms the definitionof Racial containedDiscrimination, in the which Inter tices of this nature, and to establish norms and other measures that recognise and en- exclusion, restriction or preference,” based sure the effective equality before the law of ondefines enumerated discrimination grounds as such any as “distinction, race, sex, each individual.”18 religion, or “other status, and which has the purpose or effect of nullifying or impairing While the primary inquiry of the Court in the recognition, enjoyment or exercise by the IVF decision related to interferences all persons (...) of all rights and freedoms”.13 with the right to private and family life, and the right to life, in relation to discrimi- used by the Court in other decisions, does nation they ultimately concluded that the Importantly, this definition, which has been

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absolute ban did have a disproportionate to be an overly broad provision22 that has a discriminatory impact on infertile indi- discriminatory, disproportionate impact on viduals, women, infertile men, and couples women and infertile couples in the exercise with limited economic resources. of their rights to private and family lives, and to found a family.23 To determine the propor- 3. The Decision tionality of the ban, the Court balanced the severity of the interference into the right to The primary argument in the Court’s deci- private and family life and the legality of the sion focuses on the question of the right to disproportionate impact of the ban.24 life.19 In the Constitutional Chamber judgment, the Chamber reasoned that the right The Commission and the victims alleged that to life was of utmost importance and should the ban discriminated against women and be protected above other implied rights, against people with reproductive disabili- such as the right to found a family and the ties, highlighting the clear distinction that right to private and family life. In 2000, the the ban created between married couples Constitutional Chamber held that life begins who conceive naturally and infertile married when the egg is initially fertilised, even prior couples who rely on assisted reproductive to implantation in the mother’s uterus. Be- techniques.25 In response, the state argued cause IVF necessarily involves the destruc- tion of non-viable fertilised eggs, under the in pursuing the legitimate aim of protecting state’s interpretation the embryo’s right to embryonicthat the ban life. was26 justifiedWhile the and facially proportional neutral life would be violated by the practice of IVF. ban impacted infertile couples distinctly, the By contrast, the Court held that conception state claimed that infertility was not a rec- occurs only after successful implantation of ognised social condition which would merit an embryo, not merely fertilisation, disput- protection under the American Conven- ing state claims that the right to life protection.27 The state alleged that infertility was tion prevails over protecting a couple’s right not a recognised disability or disease that to private life or right to found a family.20 In required the provision of medical treatment doing a balancing test the Court found that in the form of IVF procedures.28 In order to protection of life at early stages of concep- determine whether the ban constituted a tion was a legitimate state aim. They then violation of rights, the Court conducted an examined the proportionality of the absolute analysis of the severity of the interference ban, weighing the private and state interests into the right to private and family life and involved. While the Court found protecting other involved rights as well as an analysis of the right to life for the earliest stages of life the disproportionate impact of the ban. to be a legitimate aim, it held that this protection was gradual and incremental, that In analysing the severity of the state’s inter- personhood did not take effect until implan- ference into the right to private and family tation and that there were less restrictive life the Court looked at the impact of the ban measures available to protect life and regu- on couples’ lives. The Court considered the late IVF practices.21 stress and expense related to travelling out of Costa Rica to obtain services, the effective Because the right to life does not imply an ab- removal of decisions related to family and re- solute right to protection for non-implanted productive choices from married adults, and embryos, the IVF ban was ultimately found the psychological effect of the ban on couples

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and individuals. Ultimately, the Court found that reproductive failure constituted a dis- that the ban was indeed a severe interfer- ability, it allows for the possibility of repro- ence into the exercise of the right to private ductive disability being considered a “social and family and the right to found a family.29 condition” for the purpose of the enumer- Subsequently, an analysis of the dispropor- ated grounds contained in the prohibition tionate impact of this severe interference on against discrimination in the American infertile men and women was conducted. Convention.36 The Court explained that societal barriers to infertility, such as the ab- The Court examined indirect discrimination solute ban on IVF, put infertile individuals relating to disability, gender and economic in a more vulnerable position, meriting spe- situation, concluding that the ban had an cial protections from the state.37 The Court impermissible disproportionate impact on found that the absolute ban prohibited infer- people with disabilities, women, infertile tile couples from accessing these treatments and from effectively exercising the right to resources.30 Discrimination, the Court ex- found a family and the right to private and plained,men, and occurs couples when with states insufficient create economicarbitrary family life, therefore having a disproportion- differences that undermine human rights ate effect on those couples and constituting and can occur indirectly when an otherwise indirect discrimination.38 neutral law has a disproportionate effect on one group of individuals in the exercise of In an interesting analysis of the indirect dis- their protected rights.31 crimination relating to gender, the Court examined traditional gender stereotypes and Relying on the Convention on the Rights of how infertility affects the perception of those

Rica in 2008,32 the Court concluded that in- the ban has a disproportionate effect not fertilityPersons is with a disability Disabilities, necessitating ratified by access Costa onlyafflicted because individuals the procedures in society. are For invasive women, to to treatment and techniques that can help a woman’s body, but also because they often resolve the resulting reproductive health have severe social consequences.39 As wom- problems. According to the Court, disability en are seen as the nurturers and mothers in is not simply a physical or psychological de- society, it is often shameful to be unable to produce a child and women are often blamed for this inability.40 Furthermore, the Com- impedeficiency, thebut rathereffective the exercise interaction of rights between by mittee for the Elimination of Discrimination thethis disabled. deficiency33 and the social barriers that Against Women has held that protecting a World Health Organization, is a reproductive foetus at the expense of the mother’s health disorder resulting Infertility, in the inability as defined to conceive by the constitutes discrimination.41 The Court con- a biological child after twelve months.34 The sidered that in the present case, the ban, Court held that infertility as a medical con- which protects embryos without consid- dition constitutes a functional limitation to eration for the mother’s disability, appears those suffering from it, and is a recognised to constitute this kind of discrimination.42 - The absolute ban on IVF undermines the tile individuals to be protected under rights woman’s mental and emotional health, her ofmedical disabled infirmity individuals, therefore including requiring access infer to societal status, and her place in the family techniques that could help them overcome in order to protect an embryo that has yet to their condition.35 Because the Court held be implanted into her uterus.43 Similarly, the

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Court also considered male victims’ testimo- necessary for the disadvantaged to enjoy nies regarding the detrimental effect that the equal enjoyment of rights. infertility had on their identities and concep- tions of self-worth.44 While this argument is Reparations included the immediate removal based almost entirely in societal stereotypes, of the ban, implementation of less-restrictive regulations relating to IVF practices, provi- because of these stereotypes that the state’s sion of mental health treatment, implemen- interferencethe Court ultimately has a disproportionate finds that it is precisely impact tation of educational programs related to on women and infertile men.45 assisted reproductive techniques and monetary damages.48 The Court ordered Costa Rica to implement all necessary measures discrimination and economic class. Of the and regulations in order to ensure that those nineFinally, couples the Court involved looked in briefly the case, at indirect many individuals who desire to undergo IVF can could not afford to pursue treatment abroad access treatment.49 Additionally, the Court and had no possibility of conceiving bio- ordered the Costa Rican Social Security Fund to include the availability of IVF within its resources could go abroad to obtain IVF.46 programmes, in conformity with the prohi- Whenlogical comparedoffspring, whileto similarly those with situated sufficient cou- bition of discrimination.50 Included in these ples with the resources to seek treatment orders is a reporting requirement, which mandates that the state must report to the economic resources are disproportionately Court every six months regarding measures impactedabroad, the by affected the absolute couples ban. with47 insufficient implemented to ensure available services to those requiring IVF.51 While the analysis of indirect discrimination in the Court’s decision is considerably 4. Conclusion shorter than the analysis of the right to life, This decision brought inter-American ju- through disproportionate impacts on cou- risprudence on reproductive rights and the plesthe Courtsuffering did from find indirectinfertility, discrimination women, in- right to private and family life in line with the fertile males, and infertile couples with few European Court of Human Rights’ jurispru- economic resources. The Court’s recognition dence on the subject. While the ability to de- of infertility as a disability requiring spe- cide when and how to have a child is fundamentally protected under the right to private important step in ensuring that individuals and family life, the European Court of Human withcific protectionsreproductive for health disabled problems persons have is ac an- Rights has also found that states do have an cess to necessary treatments, allowing them interest in protecting life in its earliest stages, autonomy over decisions about how and including restricting and regulating IVF prac- when to procreate. Furthermore, recognis- tices.52 This state interest, however, does not ing the societal impact that infertility has on allow an absolute ban on IVF techniques that men broadens protections for men’s rights in prohibit couples from utilising necessary the areas of reproductive and family rights. treatments to produce biological offspring. Finally, while the Court limits its analysis of As a result, the Court ordered Costa Rica to - immediately remove the ban, create less re- stances, its opinion strengthens the idea of strictive regulations relating to the practice equaleconomic access discrimination to medical and to other specific treatments circum of IVF, provide mental health treatment for

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the victims involved, promulgate educational donations for use in IVF. Arguably, this programmes regarding reproductive rights would still have a disproportionate dis- and assisted reproductive techniques, and criminatory impact on men and women award monetary damages to the victims. who wish to be third party donors and infertile individuals who are not in a rec- Unfortunately, while this decision will sig- ognised, monogamous relationship. While nificantly improve access to reproductive it remains to be seen how Costa Rica will health techniques for infertile couples, regulate IVF in the future, the recent deci- it still limits access to IVF to adult, mar- sion allows the possibility that independ- ried couples only. Following European ent adults can legally be prohibited from jurisprudence, the Court indicated that a making decisions on whether they want to permissible regulation may be to restrict donate eggs and/or sperm as well as pro- IVF practices to married couples only, and hibiting single or unmarried individuals feasibly to ban third party egg or sperm from obtaining access to IVF.

1 Ariel Dulitzky is Professor in the Faculty of Law at the University of Texas at Austin, TX. 2 Inter-American Court of Human Rights (IACtHR), Caso Artavia Murillo y Otros (Fecundación IN VITRO) v Costa Rica, (IACtHR, IVF Decision) Preliminary Objections, Merits, Reparations and Costs, Judgment of November 28, 2012, Paras 71-72; Center for Reproductive Rights, Inter-American Court of Human Rights Declares Costa Rica’s Ban on In Vitro Fertilization A Human Rights Violation, 12 December 2012. 3 IACtHR IVF Decision, above note 2, Paras 68-71. 4 Ibid., Para 70. 5 Ibid., Para 67. 6 Ibid., Paras 85-125. 7 Inter-American Commission on Human Rights (The Commission), Gretel Artavia Murillo et al v Costa Rica, Merits Report No 85/10, Case 12.361, 14 July 2010, Paras 111-134. 8 Ibid., Para 128. 9 IACtHR IVF Decision, above note 2, Paras 1 and 84. 10 Ibid., Para 1. 11 Organization of American States, American Convention on Human Rights, “Pact of San Jose”, Costa Rica, 22 November 1969, Articles 1(1), 4(1), 11 and 17. 12 Ibid., Article 1(1). 13 IACtHR, Juridicial Condition and Rights of the Undocumented Migrants, Advisory Opinion, OC-18/03, 17 September 2003, Para 85. 14 IACtHR, Case of YATAMA v Nicaragua, Preliminary Objections, Merits, Reparations and Costs, 23 June 2005. 15 IACtHR, Escher et al v Brazil, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 6 July 2009, Series C No. 199, Para 129; IACtHR, Tristan-Donoso v Panama, Preliminary Objections, Merits, Reparations and Costs, Judgment of 27 January 2009, Series C No. 193, Para 76. 16 IACtHR, Case of the Girls Yean and Bosico, Judgment of 8 September 2005, Series C No. 130, Para 141; United Nations, Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-discrimination in economic, social and cultural rights (Article 2, paragraph 2 of the International Covenant on Economic, Social and Cultural Rights), 2 July 2009; Declaration on Principles of Equality, The Equal Rights Trust, London 2008, Principle 5.

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17 The Commission, Access to Justice for Women Victims of Violence in the Americas, OEA/Ser. L/V/II. doc. 68, 20 January 2007, Para 93. 18 See above, note 14, Para 184. 19 IACtHR IVF Decision, above note 2, Paras 163-264. 20 Ibid., Para 264. 21 Ibid. 22 Ibid. 23 Ibid., Para 314; see also Paras 294-304. 24 Ibid., Para 276. 25 Ibid., Paras 265-267. 26 Ibid., Para 270. 27 Ibid., Paras 270-271; and above note 11, Article 1(1). 28 Ibid., Para 271. 29 Ibid., Paras 277-284. 30 Ibid., Para 276. 31 Ibid., Paras 285-286. 32 Convention on the Rights of Persons with Disabilities, 13 December 2006, A/Res/61/106, Annex 1. 33 IACtHR IVF Decision, above note 2, Para 292. 34 Ibid., Para 288. 35 Ibid., Para 291-293. 36 Ibid. 37 Ibid., Para 292. 38 Ibid., Para 293. 39 Ibid., Paras 299 and 295-296. 40 Ibid., Paras 295-296. 41 Ibid., Para 297. 42 Ibid. 43 Ibid., Para 297-298. 44 Ibid., Para 301. 45 Ibid., Para 302. 46 Ibid., Paras 85-125 and 303-304. 47 Ibid., Para 303. 48 Ibid., Para 381. 49 Ibid., Para 336-338. 50 Ibid., Para 338. 51 Ibid. 52 European Court of Human Rights, Pretty v The United Kingdom, Application 2346/02, 29 April 2002; Evans v United Kingdom, Application 6339/05, 1 April 2007; Dickson v the United Kingdom, Application 44362/04, 4 December 2007.

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The Equal Rights Review, Vol. Ten (2013) 131 TESTIMONY

“Although legal change to protect intersex people is vital, it is only the first step in what must be broad and deep social change that accepts diversity of every kind.”

Gina Wilson

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Equal Rights for Intersex People

Testimony of an Intersex Person

The term intersex describes human beings who have naturally occurring differences of sex anatomy and whose biological sex cannot be classified as clearly male or female. An intersex person may have the biological attributes of both sexes or lack some of the biological attributes considered necessary to be defined as one or the other sex. Intersex is always congenital; the term is not applicable to situations where individuals deliberately alter their own anatomical characteristics. Intersex people are marginalised both in society and in law. Many human rights instruments fail to identify intersex people as rights holders, rather protecting “men” and “women”. Even where their rights are explicitly protected in law, intersex people are often unable to enforce those rights. They suffer from many forms of discrimination in all aspects of life, including their family life. Gina Wilson is the President of Organisation Intersex International Australia (OII Australia), a national organisation which promotes the human rights of intersex people in Australia, and provides information, education and peer support.

1. My Background

My name is Gina Wilson and I am President ing diagnoses of intersex. When I discovered of OII Australia and campaign for the equal this, I looked for groups that could provide right of intersex people to have their human peer support and came across Organisation rights recognised and enforced. I am inter- Intersex International (OII), which was just sex. As is often the case, for quite a while I starting. Initially, I joined their online forums was not aware that I was intersex. I have and then got more and more involved, be- congenital adrenal hyperplasia (CAH), and coming an outreach worker providing sup- although I knew that this involved having an- port and information to people who were atomical differences of sex, it was not made coming to terms with intersex. immediately clear to me that CAH was connected with being intersex. It was only once Many of the challenges faced by the intersex the internet became available that I found community are borne out of a lack of under- that CAH is one of the most common underly- standing and awareness of what it means

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to be intersex, and the problematic ways in have these negative connotations; it merely suggests difference, and that we are neither male nor female. which it has been defined and addressed usedwithin in the the medical early field.20th century,OII prefers over the other term Through my involvement with OII and re- terms“intersex”, which a scientifichave been term used, which both was histori first- cally and more recently. “Hermaphrodite” is to realise that viewing intersex through the lensflection of medicine on my personal and “disorder”, experience, as had I came tra- a person has fully functioning reproductive ditionally been the case, was stigmatising organsscientifically of both inaccurate sexes. It asalso it indicatesfetishises thatour - sex, encouraging notions that we have two ple, but rather shame and secrecy. Surgery, and delivered no benefits to intersex peo

sets of sex organs and can “have sex with drugs, or a combination of both have often ourselves”; “intersexed” implies that some- been used to try to “cure” or “normalise” thing has been “done” to a person; and the intersex people without their informed con- recently introduced “disorders of sexual de- sent. Following a change of government in velopment” is stigmatising and implies that Australia in 2008, the incoming Prime Min- the differences of intersex people constitute ister instituted an Australian Human Rights an illness or a disease. Use of this kind of Consultation. I thought that this might pro- language leads society to believe that there vide an opportunity to start to view inter- is something wrong with being intersex and sex through the correct lens, namely that of that it is something that should be altered, human rights. I decided, with some friends, or prevented. The term “intersex” does not to establish OII Australia, with the primary

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goals of offering support to intersex peo- ferences of sex anatomy would be subjected ple and of tackling the lack of rights and to homophobia. But it became apparent to protection for intersex people in Australia me that the desire to normalise us, and to do and around the world, by taking the debate away with ambiguity by “invisibilising” our about intersex out of medicine and stigma intersex, was to see us as “normal” males and females. The goal was to see us living heterosexual lives, whereas if we engaged in same- and2. OII into Australia the field of human rights. sex relationships, this was seen as a failure of our sex assignment. I came to see that we In the early days of OII Australia, I spent a lot were often seen as either partly or complete- of time developing a network of supporters. ly homosexual, and were faced with homophobic prejudice. We therefore had a lot of issues in common with those being advocated by LGBT groups. Society’s second prejudice is based on a fear of the “monstrous”. Society often sees differences as negative, or even “monstrous”, and wants to erase them if at all possible. This links to some issues faced by people with disabilities, particularly those born with disabilities. In forming alliances with groups working in the area of disability and of LGBT rights, OII was welcomed with open arms. We were able to learn about activism and to speak to law makers and other activists about issues surrounding intersex, as well as bringing these issues to the attention of society as a whole. Many of the challenges faced by the intersex community arise from a lack of understanding and awareness of what it means to be intersex, and OII Aus- tralia seeks to educate people about intersex and issues affecting the intersex community.

Today, OII Australia is thriving as the Austral- As I started to become involved with political - lobbying and human rights activism and to est intersex organisation, with members rep- build this network, I found that our strong- resentingian affiliate almost of OII. OIIall isknown now the intersex world’s varia largest allies were LGBT groups and also activists in the area of disability. I believe that continents, speaking ten languages including this is due to the two most common preju- Mandarintions and affiliates Chinese inand twenty Arabic. countries, OII Australia on six dices that people have about intersex. Firstly, - intersex people are discriminated against, stitution and currently has many members, marginalised and victimised essentially be- includingis a not-for-profit intersex company individuals and and charitable non-inter in- cause of homophobic prejudice. It may not sex supporters. OII have been strong advo- be immediately clear why people with dif- -

cates in the fight for marriage equality, espe

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cially since an Australian federal court deci- intersex people by intervening in our lives to sion bars intersex people from marriage and or female. try to make us identifiable by them as male bethe used currently under current available marriage non-specified law. We birthhave In a wider sense, the sex binary is unhelpful alsocertificates engaged and with passports government, are not lobbying allowed for to given that it disadvantages half the world’s the inclusion of intersex as a protected characteristic in anti-discrimination law; for hav- you are more likely to be disadvantaged than ing intersex covered in laws related to health advantaged.population. IfThere you areis somethingclassified asfundamen “female”,- and aging; and for providing that sex is not - ings into male and female for the purposes oftally social flawed standing. about Two categorising sexes is one human sex too be specified3. Understanding in documentation. the Issues many. I do not believe in a “third gender” for intersex people, but rather would like to see As mentioned, many of the key challenges no categorisation on the basis of sex or gen- faced by intersex people are the result of a der, although I am not sure that that will hap- lack of understanding and awareness of what pen soon. it means to be intersex. The whole nature and relevance of sex is framed incorrectly in OII advocates for the right for anyone over our society, with the systems by which we the age of 18 to be able to choose to have are regulated relying on this incorrect basis. an X on their passport, rather than being There are a number of key issues. has already instituted this. In Australia, you a) Intersex and the Sex Binary areidentified currently as maleonly allowed or female. to have New an Zealand X on your passport if you meet certain require- Society generally views sex as a binary no- ments. We want everyone to have the right tion, assuming that human beings are either to choose an X, which, rather than this being male or female. Society, including the rela- a third gender designation, is the right to re- tionships between these males and females, main silent – and hopefully to be judged on is then regulated on the basis of the binary. character, rather than sex. However, Foucault argued effectively that the way we categorise on the basis of sex is a so- b) Intersex and the Medical Approach cial construct. Not all people can be catego- rised as absolutely male or absolutely female Intersex differences are so confronting to a and the key problem is that this inability to society which operates on the basis of a sex categorise some individuals is that it both- binary that such differences have often been ers some people. To be more certain of the category of those individuals, normalisation in much the same way that homosexuality through intervention and medicine is often usedconsigned to be topathologised. medicine as The a problemproblem tois the fix, seen as necessary. Not long ago, homosexual- inability of individual parents and friends to ity was seen as a tragedy which could be rec- accept intersex persons as they were made. Their lack of acceptance is perpetuated by longer acceptable, as LGBT people have ar- doctors who would rather reshape a new- guedtified theirusing case medicine through and human therapy. rights. This Howis no- born’s body, than address a parent’s phobias, ever, people still abuse the human rights of and a medical establishment that prefers

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to offer “cures” and surgeries than help in- An amendment to the South African Consti- dividuals understand that their differences are natural. In third world countries where against discrimination, thanks to the efforts access to medicine is limited and expensive, oftution an activist specifically there. protects In other intersex parts peopleof the societies have to adapt to accept such differ- world, only males and females are granted ences as they are untreatable. rights and we, intersex people, are tenuously included as long as we say that we are truly That “cure” offered by the medical estab- male or female. When our status as male or lishment takes the form of surgery often female is challenged, we are unprotected by followed by more surgery and a lifetime of the law. hormonal reinforcement. Intersex genital mutilation (IGM) is conducted on newborn In some parts of the world intersex babies babies when their external genitals do not are routinely left to die, or young people who look “normal” enough to pass unambiguous- are discovered to be intersex chased out of ly as male or female. IGM, like female geni- the community. This is largely a remnant tal mutilation (FGM), is surgery carried out of historical western, colonialist attitudes. upon the genitals of newborn babies, infants We must have worldwide acknowledgment and children for cultural or religious reasons. Both are forms of infant genital surgery. The are not adequate to protect people’s rights surgical procedures conducted can cause ir- onthat grounds definitions of sex of “male”discrimination. and “female” First onlyand reparable damage to children. foremost, the UN must recognise the existence of intersex people and include their Medicine has come to act as the “normalisation police” where intersex is concerned. The of Rights and in their treaties. I realise that medical establishment has never attempted specific protection in the International Bill to argue for the acceptance of intersex. Rath- protection for intersex people is “othering” er, it argues against the right to anatomical ourselves,having a definition but unless of we intersex do this, and we specificwill re- autonomy, and risks physical and psychologi- main invisible, unprotected and at the whim cal damage to intersex persons. of the law. c) Invisibility in Human Rights Law d) State Regulation of Family Life: Mar- riage, Children and the Obsession with At the same time as the obsession with a Biology medical approach to intersex, there is still a widespread failure to take a human rights Intersex people are at the coalface of the approach to the issue. Currently, worldwide, state’s regulation of relationships. This is there is a complete lack of human rights pro- largely due to the problem of the sex binary tection for intersex people, and anti-discrim- and the fact that regulation of bodies is the ination laws are generally inadequate to protect intersex people from rights violations The aim of normalisation of intersex people resulting from their intersex. For intersex isfirst to make step in us the “marriage-ready”. regulation of relationships. If our bodies people to have rights at all, they are required to submit to the myth that they are wholly male or wholly female. Only in South Africa seeare unregulated,us a properly-married it is difficult people to classify when ourwe are intersex people explicitly granted rights. arerelationships married. and society finds it difficult to

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There have been legal cases in Australia enthood, are particularly important for us. where marriages were dissolved on the ba- For example, my partner brought children sis that one of the parties was intersex, not into our family from a previous relationship. seen as truly a male or a female, and there- The government and society do not make it easy to recognise extended families like this. as being between a man and a woman. Inter- It is almost impossible to live an intersex life sexfore people ineligible are toonly marry. able Marriageto marry isas definedlong as and have a family, because it is only possible we agree with the sex that we have been as- for intersex people to have a family life if we signed and then, irrespective of our anatomy, accept the erasure of our differences. - posite sex. In order to be accepted in society Under our current system of family regula- andfind by a partnerthe institution who is of notionally marriage, of we the must op tion, these inequalities cannot be easily recti- “invisibilise” our differences, or pretend we have none, effectively living a lie. It is often to move away from the centrality of biologi- said that most intersex people live as nor- calfied. connections However, I strongly to the regulation believe that of we what need is mal males and females, but, in my opinion, deemed to be a family relationship. The idea

normality, and which is different to what is the nature of a family is increasingly unhelp- expectedif you have of an a male anatomy or a thatfemale, defies then notions in order of ful,of “shared given the genes” many being other criticalways that to definingfamilies to live a so-called normal life, you must go are constructed in the modern world, and of along with a lie. course this does not just affect intersex people. Society needs to have a broader idea of Same-sex marriage is currently being de- what makes a family, and I would like to see bated in Australia, as elsewhere. OII Aus- tralia has advocated strongly for marriage damagethe legal that definition can be done of family by the widened. state’s fail For- between two people, and if we succeed then ureexample, to adequately I have experiencedrecognise the firsthand relationship the intersexto be defined people as will a consensualqualify for marriage relationship un- between a carer and the person they are caring for when there is no blood relationship in terms of the sex binary, so that marriage between the two, only a relationship of love, needsder that to bedefinition. between If, a manhowever, and ait woman, is framed or care and friendship. We need to move away a man and a man, or a woman and a woman, from the obsession with blood ties and cre- then we would be excluded. OII Australia supports the right of same-sex couples to social reality. marry, but we are engaged with the broader ate an understanding of family which reflects - 4. The Future: Towards Human Rights sex people, and indeed all consenting adults, Protection for Intersex People havefight forthe fullright marriage to marry. equality, so that inter We have moved intersex rights more in the last Intersex people also face discrimination four years than they have moved in the last with regard to their opportunity to be par- four hundred. OII Australia continues to lobby ents. Intersex people are more frequently in- and advocate for rights for intersex people. fertile than others, and the regulation of the “non-traditional” routes to parenthood, i.e. To speak of just one recent positive example: those other than traditional biological par- OII Australia has been heavily involved in

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campaigning and advocacy around the pro- spectrum of identities that the rest of human- posed Human Rights and Anti-Discrimination ity has. Prejudice is not about how we see Bill 2012 which is currently being reviewed ourselves, but how others see us – and this before its introduction into parliament in is based on a visible physical reality. There is Australia. Legislators initially did not have a a lot more to be done to eradicate this preju- clear understanding of what intersex was, but dice. In terms of the vital legal protections, having given evidence to Senate Committees the Human Rights and Anti-Discrimination and spoken with legislators individually we Bill 2012 offers an excellent development in are hopeful that intersex will be a protected Australia. However, the ultimate goal would be for intersex to be included in UN trea- intersex as an identity different from male ties as this would pressure on the rest of the orattribute female. under The passage the Bill, of with the Bill a definition is currently of world to follow suit. the gold standard and potentially the most OII Australia is putting the rights of intersex intersex people in Australia to date. people on the agenda and is always encour- significant advance towards the protection of aging others to do the same and to make the However, there is more to be done both in call for these rights louder. Once we are seen terms of cultural change and in terms of legal change. Most discrimination against intersex rights, people will know that we exist and the people is not as a consequence of us iden- communityto be fighting at for large our willrights hopefully and are becomegranted tifying as intersex, but on the basis of our more sympathetic to our cause. Although le- physical appearance and difference. It will gal change to protect intersex people is vital, ultimately be important to get us out of the frame of intersex “identity”. Intersex people and deep social change that accepts diversity have all kinds of identities – the same broad ofit is every only kind.the first step in what must be broad

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The Equal Rights Review, Vol. Ten (2013) 141 INTERVIEW

“In many ways the trail-blazing countries are just showing that, after the initial furore has died down, equal marriage soon just becomes part of the furniture and means that other discrimination issues affecting people can be more effectively tackled.”

Stephen Gilbert

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Developing Law and Policy: Progressing towards Equal Rights to Family Life

We are experiencing a period of significant change in the way that states regulate family relationships. In particular, at the national level, new laws are being introduced across the globe to permit same-sex marriage. These moves mark a significant shift towards achieving an equal right to recognition of family relationships, at least for same-sex couples, and this progress is to be welcomed. In some parts of the globe, notably Europe, progress at the national level is developing in part as a result of regional conversations and jurisprudence in which the notion of “family life” is increasingly recognised as extending beyond “traditional” notions of a man and woman in a marriage raising their own biological children. The path of progress in this area has not always been smooth and, while advances have been made, more remains to be done at the national, regional and international levels to ensure that all people, without discrimination, have a right to recognition of and respect for their family life.

ERT spoke with Dr Ian Curry-Sumner, owner of Voorts Juridische Diensten, former Senior University Lecturer at Utrecht University in the Netherlands and expert on comparative family and private international law, and Mr Stephen Gilbert MP, Member of Parlia- ment for the Liberal Democrat party in the UK and strong propo- nent of legislating for same-sex marriage.

ERT: Your interest and expertise on mat- Ian Curry-Sumner: Having studied family ters relating to equal rights to family life law in my second year at University, I went are widely recognised. Dr Curry-Sumner, to the Netherlands on an Erasmus scheme your expertise in international and com- and took an introductory course on Dutch parative family law is well-known and Mr family law. This sparked my interest and I Gilbert, your work on the issue of equal subsequently applied, and was accepted, rights for same-sex couples in the UK has for a PhD position researching the recog- been well publicised. How did you be- nition of established partnerships. Since come involved in these areas? then, over time I have become increasing-

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ly specialised in private international law ERT: A debate about equal marriage as well as the comparative law aspects of rights is taking place in a number of coun- family law. tries at the moment. Most recently this debate has been before Parliament in the Stephen Gilbert: On this issue, like many UK. Could you say a bit about the current others, my political campaigning has been situation as regards the right to equal shaped by my personal experiences. Coming marriage in the UK and, specifically, your from a working class background and grow- view on the Marriage (Same Sex Couples) ing up in rural Cornwall made it hugely dif- Bill 2013?

friends and family about my sexuality and it Stephen Gilbert: - ficult for me to be open and upfront with my posed a policy of equal marriage to the Lib- felt able to tell people that I was gay. It’s sim- eral Democrat PartyAs Conferencethe MP who in first Septem pro- plywas not only right in mythat early many twenties thousands that of I peoplefinally ber 2010, I am delighted that the Coalition Government has brought forward this legislation that will end a discrimination and send a signal that the House of Commons values everyone in our country equally. Treating people equally is vital if we are going to tackle some of the other problems facing the LGBT community.

Ian Curry-Sumner: I think that the Bill in the UK is slightly disappointing. It is good that

the UK is finally addressing the idea of one

across the country experience that same level of anxiety about telling people about who they are. It’s also clear that it can be very damaging to individuals and families with people failing to live their lives to the fullest, and being bullied. We don’t accept this level of prejudice in other walks of life, and we shouldn’t accept it based on nothing more than whom people love.

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institute with the same name open to both Ian Curry-Sumner: The position on the is- same-sex and opposite-sex couples but the sue of recognition of same-sex couples in distinctions drawn in the Bill with respect most countries has evolved over time and to religious organisations is disappointing. there are a variety of approaches. The Neth- Of course, the religious debate is important erlands is not a good example and I strongly in the UK, as it is in other countries such as recommended that our system should not be the Netherlands, Sweden and Denmark, but replicated elsewhere. We have two formal the UK government has pre-empted any de- relationship institutes next to each other – bate on this issue by introducing religious marriage and registered partnership. Any- exceptions before these have been properly one can choose to enter into either, and in discussed. It would have been better to have terms of content they are virtually the same, an open discussion before these exceptions but the name of the institute is different. This were included, and it may have become ap- can create huge issues with, for example, the parent that not all of these exceptions are international recognition of a relationship. required. The government had a similar approach with the Civil Partnership Bill, which In Sweden, Norway and Denmark, there I felt was problematic, but which has unfor- were two institutes (marriage for opposite- tunately been carried on with the Marriage sex couples and civil unions for same-sex (Same Sex Couples) Bill. couples), but over time these were both combined into marriage. These systems are In sharp contrast to the UK, in the Nether- better than that of the Netherlands, but not lands, there are no religious marriages – it is perfect as they do not give couples the op- a criminal offence to conduct a religious mar- portunity to choose how to name their re- riage before a civil marriage has taken place. lationship. Some people want legal recogni- There are some exceptions from the obligation of their relationship but do not want to tion to conduct same-sex marriages for inbe married. dividual civil registrars with strong beliefs against same-sex marriage. My view is that I am a strong supporter of the South Afri- registrars are civil servants and should apply can system. Essentially, it provides for one the law, with their own beliefs being irrele- institute which any couple can enter into. vant. However, I am pragmatic about this and However, unlike Sweden, Norway and Den- recognise that the issue of the interplay be- mark, in South Africa couples can determine tween same-sex marriage and religion arises whether they wish to call their partnership a all over the world and needs to be debated marriage or a civil union. This allows couples and discussed. What is disappointing in the to have a say in the naming of their relation- context of the UK Bill is that the UK govern- ship, whilst avoiding problems which arise ment has sought to pre-empt such discussion as a result of having separate institutes such by drafting the Bill as they have. as the inherent possibilities of discrimination where different rights attach to different ERT: How does the situation in the UK institutes. Instead, everyone concerned is in compare to that of other countries in an equal position. terms of equal marriage rights, and is there a particular country (or countries) Stephen Gilbert: It’s great news that many which you believe is a positive example in countries are making the move toward this respect? equal marriage and, in fact, many other

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parts of the world are further ahead than In most countries in the world it is only pos- most European countries. We’ve seen rap- sible for two people to have custody of a id progress in jurisdictions across South child. This means that situations where chil- America as well as in many North Ameri- dren are raised by other than their biologi- can states, and of course South Africa and cal parents, or where a third party is also Australia. Clearly, it confounds the critics involved, as in the case of children raised by of this progressive move that the end-of- a male same-sex couple where the child is world warnings that have come from oppo- born outside of the marriage for example, nents just haven’t happened. In many ways the trail-blazing countries are just showing the UK, more than two people can share that, after the initial furore has died down, parentalare very difficultresponsibility to regulate. for a Unusually,child, which in equal marriage soon just becomes part of arguably provides a more effective way of the furniture and means that other discrim- dealing with the complex situations that can ination issues affecting people can be more arise when a child is being raised in same- effectively tackled. sex families, as well as when relationships break down. ERT: Can you say a bit about some of the issues around the regulation of the adop- As a child advocate, I believe that the start- tion/custody of children with regards to ing point should be the child’s perspective the sexual orientation of the parents? – what does the child need to know, and to have? They should know their biological ori- Ian Curry-Sumner: From a global per- gins, which can be important for a number of spective, it is very interesting to compare reasons, including medical reasons, and also the position in Europe to that in the United who is caring for them. The two are not nec- States. In Europe, we appear to have less essarily the same. Social reality needs to be difficulty with granting rights to the couple themselves. We see an evolution in the area, in order to ensure that the interests of granting of rights. Countries always begin thereflected child arein a protected. more flexible approach in this with rights that are restricted to the parties themselves, e.g. property rights, tax Stephen Gilbert: From a policy perspective, rights, name law, nationality law, i.e. things the most important thing that children need which have no influence beyond the couple. is love and support and it’s quite clear that Normally the last area European countries same sex-couples are as able to provide that legislate upon are aspects which relate to as opposite-sex couples are. children within those relationships. The US is the opposite. In the US many states ERT: What about the issues around assist- permit same-sex adoption, or even foster ed reproduction? care by same-sex couples, but the couples are not permitted to formalise their rela- Stephen Gilbert: The reality is that much tionships. This can be extremely unfair to will depend on the individuals concerned the children and the law will need to catch - up with the reality that children are growing up in same-sex relationships and have and their specific circumstances so it’s dif- been for quite some time. cumstancesficult to make when a it generalisedwill be appropriate statement. for Suffice to say that there are, of course, cir

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same-sex couples to be able to access repro- issues of criminalisation, which is a drastic ductive services. improvement. With “family life” as a human rights convention concept, the court in Stras- Ian Curry-Sumner: Some positive measures bourg has made enormous steps. From an have been taken at a national level in some academic perspective, I can see that overall jurisdictions in the appropriate regulation there is development and positive progress, of assisted reproduction. However, the issue although I imagine that some activists would needs to be discussed at the international disagree with this because there is still work level. There are various domestic approach- to be done in certain areas. es but assisted reproduction techniques cannot necessarily be limited to national cases – Stephen Gilbert: In the same way that ex- in reality, you may have a sperm donor from tending the vote to women or ending apart- one country, an egg donor from another and heid wasn’t the end of the issues facing those the child may be born in yet another coun- communities, delivering equal marriage isn’t try. The legal approach is far too nationalistic and people are not aware that the interna- LGBT people. There’s still work to do in tack- lingthe end homophobic of the road bullying, of fighting promoting for equality good for has even led, in some cases, to people being health and good mental health, encouraging strandedtional ramifications in embassies can or be consulates, enormous. for This ex- diversity in the work place and delivering ample because they are in a foreign country - which requires them to leave due to visa re- ing the mantra of separate but equal, which strictions, but their surrogacy arrangements gavemedia a images“wink andthat nod”reflect that the gay reality. and Bylesbian end are not recognised in their country of origin. people were somehow different, it does This is clearly not in anybody’s best interests mean that all these other issues can be more and the position needs to change. easily tackled.

ERT: Are there other ways in which peo- ERT: In your view, from a global perspec- ple are currently excluded from family tive, which have been the most significant life, on grounds of sexual orientation (or changes in recent years in relation to ad- indeed other grounds), which you would vancing the equal right to family life? like to draw attention to? Ian Curry-Sumner: A lot of the most sig- Ian Curry-Sumner: Of course, in some parts of the world, some countries still have the judgments from the European Court of Hu- death penalty for same-sex relationships. mannificant Rights changes and, tohave a lesser come extent, about followingthe Court However, within Europe, due in part to the of Justice of the European Union. A number European Convention for the Protection of of seminal cases have been heard by the Eu- Human Rights and Fundamental Freedoms ropean Court of Human Rights, for example and, in the European Union, the Charter of Goodwin v United Kingdom. In some ways, Fundamental Rights of the European Union, it could be said that the courts are making certain minimum standards have arisen, slow progress but they understand that which are very proactive towards sexual they have to strike a balance between all orientation laws. The discussion is now fo- of the various member states. If they went cussed around relationship laws, rather than too far, they might face a political backlash.

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Sometimes, to achieve progress, it must groups and sexual orientation lawyers have be accepted that there will be times when formed vast networks in recent years, which movement appears relatively limited from are kept up to date on developments all over the point of view of certain jurisdictions, the world. For example, when a new law was whereas the same developments appear passed permitting same-sex marriage in Ar- very liberal to other states. gentina, people elsewhere were informed about it very quickly through such networks. ERT: Apart from issues relating to fam- This communication is very powerful and ily life, what have been some of the most provides more ammunition for making effective recent strategies for effecting equality arguments. change and advancing the rights of those who have been marginalised on the basis ERT: What would you most like to see in of their sexual orientation? terms of change over the next few years?

Stephen Gilbert: It’s clear that one of the Ian Curry-Sumner: I think that attention most significant ways of getting legislative must be paid to cross-border recognition of change is to get openly LGBT law-makers relationships within the EU. We currently into office. There is some great research have a number of regulations dealing with underway showing a direct correlation cross-border jurisdiction in relation to di- between the measures a territory takes vorce, and recognition of divorce proceed- to end discrimination and the number of ings, but not the relationships themselves. It openly gay, lesbian, bisexual or transgen- needs to be addressed by the EU in relation dered law makers. to both same-sex and opposite-sex relationships. This, for me, is the most important area Ian Curry-Sumner: A lot of progress has in which change is necessary in order to avoid been made through the work of activist discrimination against couples in having their groups lobbying parliament. As an academic relationships regulated across borders. rather than a lobbyist, I can’t comment on - Stephen Gilbert: I want to see equal mar- - riage delivered in the UK and then the Gov- tainlyspecific clear strategies that lobbying of activists is a useful when strategy. lobby ernment to come forward with a comprehen- Iing would or of also their say relative that the efficacy, internet but hasit is been cer sive strategy to tackle the other issues facing instrumental in connecting marginalised the LGBT community. Equal marriage is a groups from different counties, and this step in the right direction, but the battle is has contributed to effecting change. Activist far from over.

Interviewer on behalf of ERT:

Richard Wingfield

The Equal Rights Review, Vol. Ten (2013) 149 ACTIVITIES

■ The Equal Rights Trust Advocacy

■ Update on Current ERT Projects

■ ERT Work Itinerary: July-December 2012

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The Equal Rights Trust Advocacy

In the period since the publication of ERR Volume 9 (September 2012), ERT has continued with its work to expose patterns of discrimination globally and to combat inequalities and discrimination both nationally and internationally. ERT advocacy is based on the Declaration of Principles on Equality which is an instrument of best practice reflecting the modern consensus on the major substantive and procedural elements of laws and policies related to equality. Below is a brief summary of some of the most important ERT advocacy actions since September 2012.

International Australia

On 10 December 2012, ERT issued a state- On 20 December 2012, ERT made a submis- ment to mark Human Rights Day 2012. The sion to the Senate Committee on Legal and theme of Human Rights Day 2012 was inclu- Constitutional Affairs of Australia on the sion and the right to participate in public life. Draft Anti-Discrimination and Human Rights Inclusion and participation – guaranteed in Bill 2012. ERT’s submission, while welcom- particular by the rights to freedom of expres- ing the Draft Bill in principle, made a number sion and opinion, freedom of assembly and of recommendations to ensure consistency association and the right to take part in elec- with international law and best practice, as tions, in public life and decision-making – are represented by the Declaration of Principles key themes in ERT’s work. on Equality. ERT’s submission made a num- - ERT’s statement highlighted the relationship ment to the Bill, including: between equality and public participation in ber of specific recommendations for amend its work, and called on all those working to The addition of a number of grounds omit- ensure inclusion and participation in public ted from, or only partially protected in, the life to place the rights to equality and non- list• of explicitly protected grounds, including discrimination at the heart of their efforts. maternity; civil, family or carer status; health The statement highlighted ERT’s global work status; language; birth; and economic status. to combat statelessness, to ensure that those without a nationality are not deprived of The adoption of a conditionally open list a voice; its work to combat discrimination on grounds of political opinion in countries Principle• 5 of the Declaration of Principles such as Azerbaijan, Belarus and Sudan; and onof groundsEquality. reflecting the approach taken in its work to promote equal participation for LGBTI persons in countries such as Guyana, The adoption of the terms direct and indi- Jordan, Kenya and Malaysia. • rect discrimination, and their definitions as

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provided in the Declaration, rather than the Government of Australia to accept the Com- alternative formulations provided. mittee’s recommendation.

Amendments to the provisions on posi- However, ERT retained serious concerns that tive action, to ensure that positive action in its current form, the Draft Bill still falls measures• are understood as an integral short of the standards required by interna- element to the right to equality, and not an tional law, in respect to several important is- exception to it, and to replace the test of sues (related to grounds, positive action and “objective necessity” with one of “reasona- reasonable accommodation). ERT urged the bleness and proportionality”. Government of Australia to take these rec-

The removal of a number of exceptions the Draft Bill. considered to be inconsistent with interna- ommendations into account when finalising •tional law and best practice. Bangladesh

Amendments to the provisions on reason- On 9 October 2012, ERT made a stakeholder able accommodation to bring these into line submission to the Universal Periodic Review with• international standards, in particular by of Bangladesh, commenting on the human ensuring that the Bill retained a duty to make rights of stateless Rohingya. In this submis- reasonable accommodation. sion, ERT highlighted some of the most sig-

On 21 February 2013, the Australian Senate to the human rights protection of Rohingya Committee on Legal and Constitutional Af- innificant Bangladesh concerns relating and challenges to the populations with regard of fairs published its report on the Draft Anti- Rohingya that arrived since the recent vio- Discrimination and Human Rights Bill 2012, lence in Myanmar in June 2012. marking an important step in Australia’s progress towards enacting comprehensive anti- These concerns relate to the refoulement of discrimination law. In its report, the Com- - mittee adopted a key recommendation from anmar since June 2012, and the treatment ERT’s response to its consultation, which ofRohingya Rohingya fleeing refugees the recentinside violenceBangladesh, in My in- was submitted in December 2012. cluding lack of access to protection and humanitarian aid for Rohingya. ERT also raised - concerns about the treatment of the Rohing- tion for discrimination by religious bodies ya population in Bangladesh including their orThe educational Draft Bill contains institutions. a significant In its report,excep lack of access to a regularised status, security the Committee acknowledged ERT’s argu- of the person and their susceptibility to arbi- ment that this exception was too broad trary detention and labour exploitation. and would be inconsistent with the right to non-discrimination. The Committee recom- Guyana mended that the exception be narrowed so as not to permit discrimination in the provi- At its 52nd session (9-27 July 2012), the UN sion of services. While ERT argued for the Committee on the Elimination of Discrimi- removal of the exception from the Draft Bill, nation against Women considered the state the Committee’s proposal would still im- report of Guyana. ERT had submitted a par- prove the Bill, and ERT therefore urged the allel report focused on the country’s obliga-

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Rights Seminar on Non-Discrimination: to non-discrimination under Article 2 of the From Principles to Practice” in Jakarta, Indo- Conventiontions to respect, on the protect Elimination and fulfil of All the Forms right nesia. At the Seminar, which was attended by of Discrimination against Women. a large number of Indonesian stakeholders, including civil society organisations, mem- The parallel report made recommenda- bers of the judiciary and others, and repre- tions in a number of areas, based on inter- sentatives of the EU Delegation to Indonesia, views with victims of gender discrimina- ERT Executive Director Dimitrina Petrova tion and their representatives and analysis was a keynote speaker, addressing the topic of Guyanese laws conducted by ERT and its of emerging trends in equality law, advocat- partners at the Society for Sexual Orienta- ing for adopting comprehensive equality tion Discrimination (SASOD). legislation, and participating in various discussions on improving protection from dis- The Committee included a number of rec- crimination in Indonesia. The ERT positions ommendations which replicated or echoed - mendations to the Indonesian government. the Committee recommended that Guyana were then reflected in the conference recom enactERT’s recommendations.“comprehensive anti-discrimination Most significantly, Jamaica legislation that includes the prohibition of all forms of discrimination against [women]”, as At its 52nd session (9-27 July 2012), the UN well as decriminalise same-sex relations. Giv- Committee on the Elimination of Discrimina- en that the provisions in Guyanese law have tion against Women considered the state re- been interpreted as relating to same-sex rela- port of Jamaica. ERT had submitted a parallel tions between men only, this is a particularly report focused on gender equality comment- welcome recommendation, in that it recog- ing on the state’s compliance with Article 2 nises the stigmatising effect of criminalisa- of the Convention on the Elimination of All tion on the LGBTI population more generally, Forms of Discrimination against Women. The a point stressed in ERT’s submission. Committee incorporated all but one of ERT’s principal recommendations in its Conclud- Other important areas where the Committee ing Observations. calling on Guyana to: harmonise the various - provisionsreflected ERT’s on equality recommendations and non-discrimina included- mended that Jamaica enact “comprehensive tion at the constitutional and legislative lev- nationalMost significantly, legislation theto ensure Committee the principle recom el; raise awareness of the rights to equality of equality between women and men”. In and non-discrimination among rights-hold- its report, ERT had urged the Committee to ers and duty-bearers; ensure effective access recommend that Jamaica enact equality leg- to justice including through the provision of islation in order to comply with the require- legal aid for this purpose; and ensure the full ments of the Convention, as elaborated in the implementation of the Sexual Offences Act. Committee’s General Recommendation 28. ERT insisted that any such legislation should Indonesia provide protection from direct and indirect discrimination, harassment, discrimination On 24-25 October 2012, ERT participated on the basis of perception and discrimina- in the “EU-Indonesia Civil Society Human tion by association, on all usually protected

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grounds and in all areas of life regulated by The Committee incorporated many of ERT’s law. ERT also recommended that such legis- recommendations in its Concluding Obser- lation should provide measures necessary to vations, including those relating to repeal ensure adequate access to justice for victims of family laws which discriminate against of discrimination; provide effective, propor- women, repeal of provisions of the Penal tionate and dissuasive sanctions and rem- Code which have been widely interpreted as edies; and require the state to take all nec- criminalising consensual sexual activity be- essary measures to eliminate discrimination tween persons of the same sex, and address- and promote equality, including through the ing discrimination against Kenyan-Nubians adoption of special measures. in relation to citizenship and identity cards. The Committee also made recommendations The Committee included a number of other concerning legal aid and data collection, is- recommendations which replicate or echo sues ERT had raised in its submission. recommendations from ERT’s report, including: strengthening the national women’s Despite these positive inclusions, however, machinery within the executive branch of the Committee did not recommend that the Government and establishing a National Kenya enact comprehensive legislation to Human Rights Institution; urging Jamaica to prohibit all forms of discrimination, an obli- take measures to improve protection from gation under Article 26 ICCPR read together gender-based violence; and urging Jamaica with Article 2. ERT and its partners in Kenya, to take measures to improve enforcement including the Kenya Human Rights Commis- and implementation of the Employment sion, the Federation of Women Lawyers and (Equal Pay for Men and Women) Act. the Gay and Lesbian Coalition of Kenya, have developed, and advocated for the adoption Kenya of, a comprehensive equality bill. This effort has been supported by dozens of other non- At its 105th session (9-27 July 2012), the governmental organisations in Kenya, and UN Human Rights Committee considered there is currently a growing consensus that the state report of the Republic of Kenya. adoption of such legislation is necessary for ERT had submitted information to the Kenya to meet its obligations under interna- Committee which urged it to recommend tional law and to give effect to the aspirations a number of specific legislative and policy of its new Constitution. actions to increase protection of the rights to equality and non-discrimination. In its Malaysia Concluding Observations published in late July, the Committee adopted a number of On 12 November 2012, ERT published Wash- these recommendations. ing the Tigers: Addressing Discrimination and Inequality in Malaysia. The report, in part- ERT’s submission was based on its 2011 re- nership with the Malaysian NGO Tenaganita, port In the Spirit of Harambee: Addressing Discrimination and Inequality in Kenya. The discrimination and inequalities on all pro- - tectedis the grounds first ever and comprehensive in all areas of accountlife in Ma of- count of discrimination and inequalities on reportall grounds is the and first in all ever areas comprehensive of life in Kenya. ac and makes a set of detailed recommenda- laysia. It is based on extensive field research

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tions for reforms to law, policy and practice Amend the Federal Constitution to ensure related to equality and non-discrimination. that it complies fully with Malaysia’s international• human rights obligations on the rights The report was published at a moment of to equality and non-discrimination. great importance for the Malaysian people. On 28 April 2012, thousands of people Enact comprehensive equality legislation took to the streets of Kuala Lumpur in Ber- which should: aim at eliminating direct and sih 3.0, the biggest mass opposition rally in indirect• discrimination and harassment in all Malaysia’s history. The protesters demanded areas of life regulated by law; cover all pro- “cleansing” of Malaysia’s electoral system, hibited grounds listed in Principle 5 of the which favours the coalition that has been Declaration of Principles on Equality; and at- in power since Malaysia’s independence in tribute obligations to public and private ac- 1957. Although this rally was violently sup- tors, including in relation to the promotion pressed, as were previous ones in recent of substantive equality and the collection of years, the desire for reform appears undi- data relevant to equality. minished. Washing the Tigers problems which the Bersih movement iden- Myanmar finds that thematic of deep-rooted inequalities which limit On 2 November 2012 ERT issued an Emer- people’stifies within rights the and political aspirations system in are this sympto Asian gency Report on the violence in Rakhine Tiger nation. State, Myanmar, and wrote to the Presi- dent of Myanmar urging action to end the The report made a series of recommendations violence, provide protection and aid for the to the Government of Malaysia. Some of the victims and ensure that perpetrators were key recommendations include that Malaysia: brought to justice.

Join international treaties and other in- As of November 2012, the Rohingya of My- struments which are relevant to the rights to anmar had been subject to systematic, state equality• and non-discrimination, including sponsored attacks in Rakhine State, for a the International Convention on the Elimi- number of months, beginning in June 2012. nation of All Forms of Racial Discrimination ERT had been monitoring the situation (1965), the International Covenant on Civil and reporting on it since the outset of the and Political Rights (1966), and the Interna- violence. In October 2012, a new outbreak tional Covenant on Economic, Social and Cul- of more intense and widespread violence tural Rights (1966). began. The nature and extent of this new violence, together with mass evictions and Review and repeal discriminatory provi- forced relocation of Muslims by security sions in current laws and policies, including forces, resulted in claims of ethnic cleansing • - being made by many advocacy groups. tution which discriminate against members ofaffirmative non-Bumiputera action provisions groups. The in report the Consti also Consequently, on 2 November 2012, ERT recommends amendments to criminal law, wrote to President Thein Sein of Myanmar, employment law, education law and family urging him to take immediate action to end law, among others. the violence, provide protection and aid to all

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victims, allow full access to the international Projects at ERT. The panellists looked at the community and ensure that all perpetrators issue in the context of a Burma that is halt- are brought to justice. ERT also issued an ingly moving towards democracy but still emergency report drawing attention to the unable to move beyond the long shadow of situation and calling on both the government its authoritarian regime. of Myanmar and the international community to respond immediately, to end the vio- Solomon Islands lence, protect victims and bring the perpetrators to justice. The report highlighted the In June 2012, ERT submitted suggestions role played by the government of Myanmar for questions relating to equality and non- and state security forces in inciting hatred discrimination to be included in the List of against Muslims, turning a blind eye to vio- Issues for the Pre-session Working Group of lence perpetrated against them and engaging the 54th session (February 2013) of the UN in the violence. It also raised concern over Committee on the Elimination of Discrimina- the independence and effectiveness of the tion against Women when it considered the government-appointed commission of in- state report of the Solomon Islands. On 3 Au- quiry, and recommended that an independ- gust 2012, the Committee agreed the List of ent, international inquiry be carried out. ERT Issues for consideration at the 54th session.

community to act in accordance with the The Committee included a number of ques- doctrineappealed of to responsibility key figures in to the protect international and ad- tions suggested by ERT, including on the dress the crisis as a matter of urgency. substance of the right to equality and non- discrimination in the draft Constitution, its On 30 November 2012, ERT and the Centre for International Studies and Diplomacy co- of discrimination; the steps being taken to hosted a panel discussion at the School of ensurescope, andall theforms definitions of gender-based of different violence forms Oriental and African Studies in London on are prohibited under the law; and whether the topic of “Democratisation, Securitisation the Solomon Islands was taking steps to es- and Human Rights in Burma: Where do the tablish a National Human Rights Institution in line with the Paris Principles. the crisis faced by Rohingya in Burma, and futureRohingya prospects fit in?” Thefor thisdiscussion stateless focused commu on- Uganda nity in the country. On 11 January 2013, ERT urged Ugandan The discussion was chaired by Stefanie President Yowere Museveni to intervene to Grant, Senior Advisor to ERT and a Founder prevent the Anti-Homosexuality Bill – under and former Director of the Research Depart- debate in the Ugandan Parliament – becom- ment at Amnesty International. Panellists ing law. ERT was prompted to resubmit a included Phil Rees, Reporter and TV-pro- 2009 legal brief outlining how the Bill con- ducer – former foreign correspondent and travenes both international and Ugandan senior producer at the BBC; Maung Zarni, law by reports that a vote on the Bill might Visiting Fellow at the London School of Eco- take place in February 2013. nomics; Tun Khin, President of Burmese Ro- hingya Organization UK; and Amal de Chick- ERT’s letter urged President Museveni to era, Head of Statelessness and Nationality call on Ugandan parliamentarians to reject

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the Bill in its entirety, and, if they failed to non-discrimination as protected under indo so and the Bill passed, to refuse Presi- ternational law, and which establishes that dential assent. The letter reiterated conclu- adoption of the Draft Law would constitute sions, expressed in a 2009 ERT legal brief, a violation of: Articles 2(1), 19 and 26 of the that the Bill is both unconstitutional and in International Covenant on Civil and Politi- breach of Uganda’s international obligations. cal Rights; Articles 2(1), 13, 17 and 24 of the ERT’s brief argued that the right to equal- Convention on the Rights of the Child; and Ar- ity and non-discrimination provided by the ticles 10 and 14 of the European Convention Constitution of Uganda provides protection on Human Rights. In its letter to the Chair- on grounds of sexual orientation and gender man of the Verkhovna Rada and the parlia- identity. The brief provided evidence that the Bill violates Articles 21 (equality and represented therein accompanying the legal non-discrimination) and 27 (privacy) of the opinion,mentary ERTleaders called of thefor fivethe Draftpolitical Law parties to be Constitution. The brief also detailed the ob- rejected in its entirety. servations of UN treaty bodies which have concluded that the International Covenant ERT also wrote to Herman Van Rompuy, on Civil and Political Rights and the Inter- President of the European Council, and Jose national Covenant on Economic, Social and Manuel Barroso, President of the European Cultural Rights provide protection from dis- Commission, as well as to other European crimination on grounds of sexual orientation Commissioners, calling for the European and gender identity. Union to urge the government of Ukraine to comply with its obligations under interna- Ukraine tional and European human rights law and to object to the adoption of Draft Law 0945. On 22 February, ERT called upon the Parlia- ment of Ukraine to reject Draft Law 0945 “On United Kingdom the Introduction of Changes to Certain Legis- lative Acts of Ukraine (regarding protection On 29 August 2012, ERT made a submission of children’s rights in the safe information to the European Committee on the Preven- sphere)”, which, if passed, would discriminate tion of Torture (CPT) - against gays, lesbians and bisexual persons. nite detention of stateless persons in the UK. The purpose of the submissionon the issueswas to ofdraw indefi the In December 2012, Draft Law 0945 (formerly attention of the CPT to relevant issues, in ad- Draft Law 8711) was submitted to the Verk- vance to its visit to the UK in September 2012. hovna Rada (the Ukrainian parliament). The Draft Law would amend a number of existing As a result of having made a formal submis- laws, including the Criminal Code of Ukraine, sion, ERT was invited to attend a civil society with the effect of prohibiting the broadly - construed “promotion of homosexuality” in ber 2012. ERT Head of Statelessness and Na- different media, and would provide for pun- tionalitybriefing for Projects, the CPT Amal in London De Chickera, on 25 Septemspoke at

detention and its impact on stateless persons ERTishment submitted of up to to five the years’ Verkhovna imprisonment. Rada a le - inthe the briefing UK. He on alsothe phenomenon presented the of indefinitedelegates gal opinion on the Draft Law assessing its with copies of ERT’s Guidelines to Protect compatibility with the rights to equality and Stateless Persons from Arbitrary Detention.

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On 25 February 2013, ERT made a submis- sations should be free to conduct religious sion to the Parliamentary Committee con- ceremonies in accordance with their beliefs sidering the Marriage (Same Sex Couples) and tenets. However, it noted also that when Bill 2013 in the House of Commons in the conducting state-recognised marriage, these United Kingdom. The Bill opens up access to institutions are carrying out a public function the institution of marriage to same sex cou- and therefore argued that those organisa- ples through civil ceremonies and allows re- tions should not be permitted to discrimi- ligious organisations to “opt in” to conduct- nate against couples based on their sexual ing same sex marriage. orientation, but must carry out that function in a non-discriminatory manner. ERT’s submission to the Committee welcomed the Bill, arguing that it would, if In addition, ERT highlighted that the Bill: adopted, provide the United Kingdom with some of the strongest and most progressive • Leaves same sex couples in Northern Ire- legislation protecting the rights of lesbian, land unable to marry, solely based on their gay and bisexual people. Notwithstanding place of residence; that support however, ERT expressed its serious concerns that the Bill contains a • Reserves concepts such as adultery and number of provisions which would differ- consummation as solely heterosexual, sym- entiate between different sex and same sex bolising a segregation of different sex and couples and which would amount to unjus- same sex couples; and tifiable discrimination. • Makes no amendments to the Civil Part- ERT’s analysis stressed that when religious nership Act 2004 which discriminates organisations conduct marriages which are against different sex couples in denying them recognised and regulated by the state, they access to civil partnerships. perform a public function and that international human rights law and the Equality Act ERT urged the Committee to remove these 2010 require such functions to be carried out remaining areas of discrimination be- in a non-discriminatory manner. The sub- tween different sex and same sex couples, mission recognised that respect for freedom thereby ensuring full equality, regardless of religion requires that religious organi- of sexual orientation.

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Update on Current ERT Projects

I. Thematic Projects report. Research and drafting of the report by ERT is ongoing. An expert roundtable Applying Equality and Non-discrimination consultation on a draft of the report will take Law to Advance Socio-Economic Rights place on 6 June 2013, co-hosted with UCL in

This project started in July 2011 and, through the publication of a report, will contribute to DevelopingLondon. The Resources report will and be finalisedCivil Society in 2013. Ca- building strategies of better enforcement of pacities for Preventing Torture and Cruel, economic and social rights through drawing Inhuman and Degrading Treatment of Per- and communicating lessons from a global sons with Disabilities: India and Nigeria review of jurisprudence and policies which have used equality and non-discrimination This project commenced in November law to advance the realisation of social and 2010 with partner organisations in India economic rights. (Human Rights Law Network - HRLN) and Nigeria (Legal Defence and Assistance Pro- During this period, research has continued. ject - LEDAP). Its objectives include the de- Post-graduate students of the University of velopment of legal and policy guidelines on Cambridge Pro Bono Project have assisted the prevention and remedy of torture and ill-treatment of persons with disabilities, the case compendium for use as part of the based on documentation of abuses and test with the research produced a first draft of

Researchers Anisa Rahim, Veena Kumari, Shampa Sengupta and Ratnaboli Roy speak about evidence gathering techniques at ERT workshop, Delhi, February 2013. Photo credit: HRLN credit: Photo

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litigation, as well as capacity building re- dia and Nigeria, in conjunction with HRLN lated to the intersection of disability rights and LEDAP, for consultation with key stake- and non-torture rights. holders. These Resource Packs describe patterns of torture and ill-treatment of people Since September 2012, the key activities un- with disabilities in the respective country der this project have been: present legal research and analysis, bringing togetheridentified relevant in the international, course of field regional research, and Packs on Disability and Torture for both In- domestic law and jurisprudence on disabil- dia• Finalising and Nigeria. the first drafts of the Resource ity and torture, and make recommendations Continued progress of strategic litigation for change. In February 2013, ERT consulted in India and Nigeria. - • Conducting of training for CSO activists ings and will now use the output from these and lawyers in Delhi and Lagos. with activists and stakeholders on the find • Hosting of roundtable stakeholder meet- the drafts. consultations to further develop and finalise and• Lagos. The strategic litigation component of the ingsPress on theconferences findings in of both the projectDelhi and in Lagos Delhi project continues to progress. The pro- - ject is supporting 10 legal cases which •search and the recommendations agreed by are currently before the courts in India tostakeholders announce theat the findings roundtable of the meetings project rein and the development of 13 cases which the respective jurisdictions are due to be filed before Nigerian courts. It is intended that ERT will submit ami- cus briefs where possible, and a number Packs on Disability and Torture for both In- are being prepared. ERT has prepared first drafts of the Resource

ERT’s Joanna Whiteman (4th from right) with participants at training workshop, Lagos, February 2013. Photo credit: Oliver Lewis Oliver credit: Photo

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The project also involves training to equip with its partners, interview prospective CSOs and lawyers in India and Nigeria to collaborators, and conclude project agree- tackle problems of ill-treatment of persons ments. ERT also held an international strate- with disabilities. ERT has worked in col- gic planning meeting in Bishkek, attended by laboration with two senior advisors and - partner CSOs to design and deliver a workers from the region. shop for CSOs and lawyers working in the approximately fifteen human rights defend fields of equality, disability and/or torture Greater Human Rights Protection for in India and Nigeria. Following up on a first Stateless Persons in Detention round of workshops held in January 2011, a second round of workshops took place in Since the publication of Volume 9 of the ERR February 2013 in both India and Nigeria, (in September 2012) the key activities on building the capacity of more than 70 CSO this project have been: activists and lawyers. The launch of ERT’s Guidelines to Protect Also in February 2013, stakeholder round- Stateless Persons from Arbitrary Detention. table meetings were hosted by ERT in both • The use of these Guidelines as a training Delhi and Lagos. Each brought together rep- resource around the world. resentatives of government departments • The publication of the Special Issue on Statelessness of the European Journal of Mi- both cases, recommendations for action that gration• and Law. needsto discuss to be thetaken findings by various of the branches research. of the In The activities of the European Network of government in each country were agreed. Statelessness (ENS) of which ERT is a founding• organisation. recommendations for use in advocacy and The formation of a Working Group on directlyERT will by finalise the government and circulate representatives the agreed in their relevant ministries. The stakeholder Rights• Network (APRRN) of which ERT is a roundtable events were followed by press foundingStatelessness member. at the Asia Pacific Refugee conferences. The result has been good na- - The Guidelines to Protect Stateless Persons ings and the agreed recommendations for from Arbitrary Detention accompanied by a policytional change. press coverage of the research find detailed (26,000 word) Commentary to the Guidelines authored by Amal de Chickera Empowering Human Rights Defenders in were launched in mid-July at an event in Lon- Central Asia to Combat Discrimination on don. Since their launch, the Guidelines have the Basis of Ethnicity and Religion generated a great deal of interest. 200 copies were shipped to the International Deten- This project started in January 2013 in part- tion Coalition headquarters in Australia, 200 nership with two NGOs based in Central Asia, copies to Lawyers for Human Rights (South and the participation of further local activists Africa) and 100 copies to the Greek Refu- and experts. Its purpose is to address ethnic gee Network, for training purposes. Conse- and religious discrimination in some Central quently, the Guidelines have been and will be Asian countries, and publicise studies on the used to train participants at regional train- subject. In February 2013, ERT travelled to ing workshops on immigration detention in the region to engage in detailed discussions Asia, Africa and Europe. In November 2012,

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the International Detention Coalition utilised venian, and was covered by national media the Guidelines to train the participants of the in various European countries including Bel- European regional training workshop on im- gium, Denmark and Italy. migration detention which was held in Ath- ens. The Guidelines were also used as a train- - ing material at the inaugural statelessness gee Rights was conducted in South Korea in training workshop organised by the Euro- AugustThe fourth 2012. Asia However, Pacific aConference statelessness on workRefu- pean Network on Statelessness in Budapest, ing group was established at the conference also in November 2012. and ERT is a founding member of the working group. This means that ERT has played a The Special Issue on Statelessness of the key role in establishing the only two regional European Journal of Migration and Law was statelessness networks in the world – ENS published in late July. The issue, co-edited by and the APRRN Working Group, another ex- Amal de Chickera, contains articles by lead- ample of the leadership role ERT continues ing academics, activists and experts on state- to play on the issue of statelessness. lessness in Europe, an interview with Thom- as Hammarberg and the ERT’s Guidelines ERT has similarly played an active role in hav- to Protect Stateless Persons from Arbitrary ing the International Detention Coalition prior- Detention. It also contains articles by Claude itise statelessness as one of its key focus issues. Cahn, René de Groot and Olivier Vonk, Gabor Gyulai, Mark Manly, and Laura van Waas. Strengthening Human Rights Protection of the Rohingya The European Network on Statelessness – of which ERT is a founding member - contin- The period since September 2012 was ex- ued its activities during the reporting period. tremely busy for the team of this project, Amal de Chickera attended many ENS meet- primarily due to the human rights and hu- ings and has contributed to the growth of the manitarian crisis faced by Rohingya in Rakh- network through recruiting new members, ine state of Myanmar where they have been developing its law and policy pillar and con- subject to discriminatory violence and abuse tributing to policy development, awareness- and have been denied freedom of movement raising and capacity building activities of the and restricted to camps where they receive Network. The primary activity in this regard little or no humanitarian aid. was the hosting of the inaugural ENS Train- ing workshop for European statelessness ad- During this period, ERT’s research has been vocates in Budapest in November 2012. ERT carried out and completed by team mem- contributed via Skype link. bers working in the six project countries: Bangladesh, Indonesia, Malaysia, Myanmar, ENS also issued a statement to mark inter- Saudi Arabia and Thailand. Bangladeshi national human rights day on 10 December senior researcher Ranajit Dastidar conduct- 2012. This statement, which called for greater inclusion of stateless persons in Europe, Chittagong Hill Tracts in September 2012. was initiated and drafted by ERT. The state- Saifuled a 10 Huq day Omi,field visitProject in Cox’s photographer Bazar and andthe ment was widely publicised by ENS member researcher, did research in Malaysia also organisations (68 at the time), translated in September. The Malaysia and Thailand into Danish, French, Italian, Serbian and Slo- -

research is being finalised, under the guid

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ance of ERT’s Project partner, the Institute and the denial of humanitarian aid. In re- of Human Rights and Peace Studies of the sponse to this most recent spate of violence, Mahidol University (Bangkok). in early November ERT wrote to the Presi- dent of Myanmar and issued an emergency In September 2012, ERT participated in a report. ERT urged the President of Myanmar conference on the Plight of the Rohingya or- to take immediate action to end the violence, ganised by the Perdana Global Peace Founda- provide protection and aid to all victims, tion in Kuala Lumpur. Saiful Huq Omi made allow full access to the international com- a multimedia presentation on the Rohingya munity and ensure that all perpetrators are issue which was well received by the audi- brought to justice. ERT also issued an emer- ence. Additionally, senior research consult- gency report, drawing attention to the role ant Sriprapha Petcharamesree spoke about played by Myanmar and the failure of the the situation faced by Rohingya populations international community to respond to the in Malaysia and Thailand, and the ASEAN re- situation in a strong and decisive manner. sponse to the crisis. - tional community to act in accordance with In October, ERT hosted a panel discussion on theERT doctrine appealed of to responsibility key figures into theprotect interna and the Rohingya crisis at the South East Asia Hu- address this crisis as a matter of urgency. man Rights Network Regional Human Rights Conference in Jakarta. The panel comprised In November 2012, ERT in collaboration with presentations by members of the project SOAS hosted a panel discussion on the Roh- research team, including Zam Askandar, Na- ingya crisis chaired by Stefanie Grant. Speak- talie Brinham, Pei Palgrem, Sriprapha Petch- ers were Amal de Chickera, Tun Khin, Phil aramesree (chair), Yanuar Sumarlan and Rees and Maung Zarni. A multimedia presen- Veerawit Tianchinin. tation by Saiful Huq Omi was also screened. The event was well attended (about 70 peo- During the report period, ERT has also played ple) and well received. a lead advocacy role in bringing together different civil society voices and conducting ad- In November 2012, ERT also submitted a vocacy on the Rohingya issue. In September memo to the U.S. Department of State prior 2012, ERT attended a roundtable discussion to President Obama’s visit to Myanmar. The on the issue hosted by the US Embassy in memo called on the USA to exercise more London. Similarly, ERT briefed the European pressure on the Burmese government to ad- - dress the Rohingya issue, protect Muslims fore their visit to Myanmar. ERT has also con- in Rakhine state and end statelessness. In a ductedDelegation meetings in Brussels with theon ERT’sUK FCO findings, and other be speech made at Yangon University, President representatives of the diplomatic and INGO Obama made direct reference to the Rohing- community during the reporting period. to use the word “Rohingya” at a public event Since 21 October 2012, Muslims in Rakhine inya Myanmar.crisis – and became the first public figure state, including stateless Rohingya and Ka- man Muslims who are citizens of Myanmar, The project team met at the Mahidol Univer- have been subject to intense, large-scale and sity in Thailand on 16-17 February 2013 for sustained violence including killing, burning a second research and advocacy workshop. of homes and property, forced displacement The workshop reviewed progress in the

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drafting of a series of reports envisaged to local CSOs. At the meeting, participants dis- be published under this project, discussed cussed and agreed a number of priority areas key issues and themes to be addressed the for joint action combating discrimination. reports, and agreed the publication schedule. With regard to the advocacy and training In September 2012, ERT conducted training components of the project, the team identi- workshops in three cities (Baku, Ganja and - Guba). The training focussed on familiarising vocacy opportunities, discussed advocacy participants with the key concepts related strategy,fied national, planned regional training and workshopsinternational and ad a to discriminatory torture and ill-treatment. - It included sessions on: (i) basic concepts in cacy and training schedule. equality law; (ii) basic concepts on torture project conference, and finalised the advo and ill-treatment and associated internation- II. Country Projects al law; (iii) Azerbaijan’s international obligations with respect to equality and to torture Azerbaijan: Developing Civil Society Ca- and ill-treatment; (iv) Azerbaijani law, policy pacity for Preventing Discriminatory Tor- and practice with respect to equality and to ture and Ill-treatment torture and ill-treatment; (v) practical exer- cises in identifying discriminatory torture This project began in November 2011, and is and ill-treatment; (vi) human rights moni- implemented in partnership with the Azer- toring and evidence gathering techniques; baijani women’s organisation Tomris. The (vii) submissions to international and na- project seeks to (1) increase the capacity of tional human rights monitoring mechanisms civil society organisations (CSOs) and other on discriminatory torture and ill-treatment; professionals to understand and apply anti- and (viii) developing advocacy and aware- discrimination and human rights law in chal- ness-raising strategies relating to discrimi- lenging discriminatory torture and ill-treat- natory torture and ill-treatment. Feedback ment; (2) create an institutional framework from the training was extremely positive, for civil society dialogue and advocacy on and trainers were pleased both with the level issues relating to discriminatory torture and of learning exhibited by training participants ill-treatment through establishing a CSO Fo- and their interest in incorporating an equal- rum; and (3) increase awareness and under- ity perspective into their work. standing among CSOs and other key stakeholders of the link between discrimination Following the training workshops, a third and the occurrence of torture and ill-treat- round of CSO forum meetings were held in ment. The project features training work- the three host cities. After a brief review of shops in three major cities in Azerbaijan the training workshops and a restatement of (Baku, Ganja and Kurdemir), the publication the project’s aims and objectives, the meet- of a report on discriminatory torture and ill- treatment in Azerbaijan, the establishment joint concern and the formulation of collec- of a CSO Forum, and an advocacy campaign. tiveings responses. focused on Issues identification discussed of issuesincluded of the treatment of political prisoners, and the Following the second round of regional CSO approach of the authorities to issues of do- forum meetings in Ganja and Guba, the sec- mestic violence. Participants also began the ond meeting of the Eastern region CSO forum process of identifying potential advocacy op- was held in Baku in August, attended by 12 portunities at both the national and interna-

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tional levels. The Forums were well attended and Guba, each of which has convened three by a mixture of civil society organisations, meetings attended by a number of civil soci- media organisations, lawyers, and repre- ety actors, media and legal representatives, sentatives of local and national authorities. and representatives of the local and national authorities. Participants at these meetings - have, as planned, shared their experiences of pact on the capacity of civil society to combat - discriminatoryThis project has torture had a significant and ill-treatment positive andim mon problems and agreed joint actions to ad- has delivered – or is in the process of deliv- dressdiscriminatory these problems. ill-treatment, The result identified is that com civil ering – on each of its objectives. The three society dialogue and cooperative working on credit: ERT credit:

Novella Jafaroglu, Chair of the Society for the Protection of Women’s Rights, at ERT training in Baku, September 2012. Photo Photo planned training workshops successfully discriminatory torture and ill-treatment has provided participants with grounding in key been established. concepts relating to torture and ill-treatment, equality and non-discrimination law, and the Belarus 1: Empowering Civil Society in nexus between the two areas, followed by Belarus to Combat Discrimination and discussion of effective strategies for combat- Promote Equality ing discriminatory ill-treatment within the context of the CSO Forum. The result is a sig- This project is implemented in an informal - partnership with the Belarusian Helsinki ganisations to apply anti-discrimination and Committee (BHC) in Minsk. The project’s humannificant rightsincrease law in inthe challenging capacity of thesediscrimi or- objectives are to improve knowledge of anti- natory torture and ill-treatment. ERT and discrimination law among NGOs in Belarus Tomris have successfully established three to enable them to monitor and report on regional CSO Forums, based in Baku, Ganja discrimination and to bring discrimination

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cases to courts; and to create a coalition of project’s impact. The expert visited Belarus NGOs with a joint advocacy platform on is- and completed the evaluation in February sues of discrimination. 2013. The evaluation is very positive and

Since June 2012, ERT’s work under this pro- achieved its objectives in a cost effective and - confirms the feeling that the project has sive report on addressing discrimination and inequalityject has focused in Belarus. on finalising Materials a comprehento be incor- Belarusefficient 2:manner. Empowering Civil Society to porated in the report were produced by BHC Advocate Collaboratively the Adoption of Anti-discrimination Legislation has worked to revise, update and expand thein the report first forhalf publication. of 2012 and This since has then included ERT This project began in April 2012, in infor- a thorough review of available literature on mal partnership with the Belarusian Hel- discrimination and the situation of different sinki Committee (BHC). The project aims to groups exposed to discrimination, a compar- build on the Belarus 1 project by: (i) provid- ative analysis of laws and policies on equal- ing training on the development of advoca- ity and non-discrimination and consultation cy campaigns and engaging in international with civil society stakeholders. advocacy on equality issues for civil society organisations; (ii) establishing a National This project has had a major impact in high Equality Forum; (iii) developing and imple- lighting the nexus between discrimination menting a strategic paper and action plan and the ongoing political repression in Be for the National Equality Forum; (iv) creat- larus. Through providing training, exper- ing an online equality forum; (v) supporting tise and material support, the project ena international advocacy actions by Forum bled Belarusian human rights defenders to members; and (vi) generating new evidence challenge state-sponsored abuses through of discrimination through documentation the courts; to resist the victimisation of the and research. political opposition and their supporters, including defence lawyers, following the disputed presidential election in Decem this project was held in September 2012. ber 2010; and to successfully overturn the InThe advance first Equalityof the meeting, Forum BHC meeting developed under a imposition of travel bans on prominent dis- strategy paper on strengthening cooperation sidents and human rights defenders, includ- between Belarusian civil society organisa- ing the members of ERT’s partner NGO. As tions (CSOs). The paper set out a proposal importantly, this project has enabled civil society in Belarus to coalesce around the goals, objectives and areas of work of such a right to equality, providing a vital space for Forum.to establish It also an examinedEquality Forum, options defining for further the joint work and activism. In late 2011, ERT cooperation between CSOs, and made practi- and BHC agreed to continue their successful cal proposals on how to schedule and man- partnership, and in April 2012 launched a age meetings. Following this meeting, it was second project which aims to build on the agreed that the paper would be amended to achievements of this project. goals and approaches for the Forum. Partici- In January 2013, an independent expert was pantsreflect also the agreementsagreed to a reached BHC proposal on the values, that a appointed to carry out an evaluation of the website should be developed to provide a

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virtual platform for consultation and interaction between member organisations. rights perspective on equality, and the impor- tantgiven differences an understanding between of thisthe unifiedapproach human and the traditional non-discrimination approach took place in November 2012, and was deliv- with which they were more familiar. Finally, The first training workshop under the project credit: ERT credit: Dimitrina Petrova (ERT) and Aleh Hulak (BHC) at seminar on procedural aspects of discrimination law, Minsk, November 2012. Photo Photo ered by the Executive Director of ERT, assisted the workshop included a session on tech- by the Executive Director of BHC. The work- niques for successful advocacy at the national shop focused on developing participants’ ca- and international levels. Feedback from the pacity to identify and document cases of dis- training was extremely positive, and 85% of crimination, and to advocate for the introduc- participants reached the pass mark on the tion of comprehensive anti-discrimination post-workshop test designed and administered by ERT. focused on ensuring that participants had a stronglaw in Belarus.understanding The first of day the of rightthe workshop to non- The primary impact of this project to date has discrimination, by discussing grounds, forms been in increasing the capacity of staff from civil society organisations to understand and material scope and relevant exceptions. The apply anti-discrimination law. Representa- of prohibited conduct and their definition, tives of Belarusian civil society have received exercise where participants worked in pairs training in identifying and documenting cas- tofinal identify session different of the day forms included of discrimination an extended es of discrimination, and techniques for ad- in 16 case studies. On the second day, the pro- vocating for the introduction of comprehen- gramme focused on extending participants’ sive anti-discrimination law in Belarus. As a understanding of many of the other key sub- result of the training – which provides the stantive and procedural elements of effective foundation for future work under the project and comprehensive anti-discrimination law, – the capacity of civil society organisations as outlined in the Declaration of Principles to effectively advocate for greater protection on Equality. In so doing, participants were from discrimination has been increased.

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Bosnia and Herzegovina: Developing Civil vulnerable to discrimination including eth- Society Capacity to Combat Discrimination nic and religious minorities, women, LGBT and Inequality in Bosnia and Herzegovina persons, the disabled and returnees.

This project began in December 2011 with In July 2012, ERT travelled to BaH to consult two partners, the Helsinki Committee for with civil society organisations and produce Human Rights in Bosnia and Herzegovina an updated action plan for the project. As (HCHR) and the Centre for Informational and part of this visit, ERT conducted an extended credit: ERT credit: Photo Photo Director of BHHCHR Vera Jovanović and ERT expert Adnan Kadribašić at training, Sarajevo, August 2012. Legal Aid (CIPP). This project seeks to (1) in- focus group with a sample group of CSOs to crease the capacity of civil society organisa- assess their knowledge of anti-discrimina- tions (CSOs) and other professionals to un- tion law. As a result of these activities, a re- derstand and apply anti-discrimination and vised Baseline Study was completed in mid- human rights law in challenging discrimina- August, which contributed – as intended – to tion and inequality; (2) create an institution- the planning of civil society training work- al framework for civil society dialogue and shops and the development of a comprehen- advocacy on issues relating to discrimina- sive report on discrimination and inequality. tion and inequality through establishing an Equality Forum; (3) enhance and strengthen Two civil society training workshops were the implementation of the new anti-discrim- conducted on 27-28 August 2012 in Sara- ination law in Bosnia and Herzegovina (BaH) jevo and 29-31 August 2012 in Banja Luka. through training, advocacy and strategic liti- The training was delivered by ERT together - with a local consultant. In total, 44 persons titudes towards minority groups and those participated in the two workshops, repre- gation; and (4) positively influence social at

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senting 42 organisations. Over the course of raised included the discrimination and dis- two days, each workshop covered: (1) intro- advantage experienced by the Roma commu- duction to the theory of equality law from nity, issues arising for the country’s different an international and national perspective: major ethnic groups (Bosniaks, Croats and major ideas and trends; (2) the right to non- Serbs), and the lack of support for disabled discrimination; (3) scope, rights-holders and persons in education. obligations; and (4) enforcement. In each of these areas, the trainers examined inter- In preparation for the launch of an advocacy national law and best practice and the legal campaign, HCHR and CIPP developed a draft framework in BaH, followed by a compara- advocacy plan. The draft plan focused on lo- tive analysis highlighting gaps and inconsist- cal and national level advocacy and aware- encies between international best practice ness-raising. ERT contributed elements and the laws and policies in BiH. After each on international advocacy and awareness- workshop, participants completed a test to raising and the plan was discussed by par- assess the impact of the training. The train- ticipants at the second Equality Forum in ing was highly effective in increasing partici- August, with a view to collecting the input pants’ knowledge, as evidenced by the fact of CSOs in the target group. The action plan that 87% of those who completed a post- workshop test devised by ERT reached the pass mark. Awas stakeholder finalised in SeptemberRoundtable 2012. convened by HCHR and CIPP took place on 30 October Between the two training workshops, on 29 2012, in Vogosca. It brought together mem- August 2012, HCHR and CIPP held, in Banja bers of the Equality Forum with representa- Luka, a second meeting of the Equality Forum tives from key government departments and which had been established in May 2012. In agencies. The Roundtable was attended by a total, 30 organisations attended the Forum total of 30 people, representing civil society meeting, with 5 of these participating as ob- organisations, government ministries and servers. An additional 6 organisations were institutions – including the Ministry of Jus- accepted as members of the Forum, taking tice, the Institution of the Human Rights Om- the total number of Forum members to 29. budsman and the Association of Judges, as well as the media. The keynote presentation cases for strategic litigation, research meth- odologyTopics discussed for collecting included: information identification towards of a in anti-discrimination law, who spoke about - thewas legal made and by political Adnan Kadribašić,framework governing an expert sation of a draft advocacy plan. equality and non-discrimination in BaH. He country report, and development and finali also gave a review of relevant international On 30 November 2012, HCHR and CIPP held standards on non-discrimination and equal- a third meeting of the Equality Forum. In to- ity, the previous practice of CSOs in advocacy tal, 34 people representing 27 organisations and litigation in this area and the work of attended this meeting. The meeting included government institutions in protection from a review of research undertaken by Forum discrimination. Participants then discussed members, which was followed by a discus- the implementation of the Law on Prevention sion on the most important discrimination of Discrimination and considered steps to - improve enforcement mechanisms, sharing tions in their respective areas of work. Issues their own experiences and problems in the issues identified by participating organisa

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practical application of the law. Participants representatives of the core membership agreed a number of conclusions in the form and additional organisations based in the of proposals to improve implementation and host city for the meeting. A good deal of pro- enforcement of the Law on Prevention of Dis- gress has been made towards the objective crimination. It was agreed that these propos- of strengthening the implementation of the als should form the basis of advocacy efforts new anti-discrimination law in BaH through in the later months of the project. training, advocacy and strategic litigation, through activities focussed on developing Research for a report on discrimination and the foundations for advocacy and litigation. inequality in BaH began in October 2012, being managed through the framework of Croatia: Empowering Civil Society through the Equality Forum. HCHR and CIPP have Training and Establishing a Croatian asked Forum members with a particular ex- Equality Forum pertise or area of focus (on women, disability or sexual minorities, for example) to form This project is implemented with two part- working groups on these areas to undertake ners, the Croatian Law Centre (CLC) and the research. From October to December, each Association for Protection of Human Rights working group reviewed relevant existing and Citizens’ Freedoms (HOMO). The pro- literature, including their own research, and ject’s objectives are to: (i) increase the capacity of stakeholders (including civil soci- testimony from victims of discrimination ety organisations and activists) to improve withundertook whom interviews they work. to This collect research first-hand was the implementation and application of anti- shared with ERT in January 2012, and work discrimination law and policy; (ii) create an towards the production of a draft report is institutional framework for civil society de- currently ongoing. bate on equality and diversity issues through establishing the Croatian Equality Forum - (CEF); and (iii) increase the communication - and coordination of work agendas between ingIn its the first capacity year of ofimplementation, civil society organisa this pro- civil society organisations working on differ- tionsject has in BaH,had awhile significant ERT, HCHR impact and in CIPP increas have ent equality issues and key Croatian decision- made good progress towards the achievement of each of the project objectives. The two training workshops provided partici- ERT,makers CLC in andthe fieldHOMO of anti-discrimination.have jointly drafted a pants with an understanding of interna- Toolkit on Anti-discrimination Law which is tional law and best practice on the rights to intended for use by Croatian lawyers wish- equality and non-discrimination, and of the ing to bring cases under the Croatian Equal- legal framework in BaH, enabling them to ity Act and by civil society actors wishing undertake comparative analysis of the law to advocate for improvements to laws and in BiH – a critical foundation for successful advocacy. The Equality Forum has enabled chapters on international standards on anti- the coordination of activities to promote discriminationpolicies. The finalised law; Croatian toolkit anti-discrim will contain- implementation of anti-discrimination law ination laws; other legislation providing through documentation, litigation and ad- protection from discrimination in Croatia; vocacy. Each meeting was attended by be- - tween 25 and 30 organisations, including encing decision-makers through policy work litigation techniques and processes; influ

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on discrimination; and advocacy for progres- Guyana 1: Empowering Civil Society to sive change in anti-discrimination standards Challenge Homophobic Laws and Discrimi- in Croatia. ERT has contributed sections on nation against LGBTI Persons international and European standards on equality and non-discrimination. This project is implemented in partnership with the Society against Sexual Orientation In November 2012, ERT, CLC and HOMO Discrimination (SASOD), an LGBTI-rights agreed an action plan for the establishment organisation based in Georgetown. The proof the Croatian Equality Forum, which brings ject’s objective is to build the capacity of civil together a key group of Croatian CSOs to ad- society to challenge discrimination against vocate for improved national policies in sup- LGBTI persons, by both increasing the tech- port of equality, in particular to lobby the nical skills and capacity of LGBTI organisa- authorities to undertake a comprehensive tions and by fostering improved coopera- Regulatory Impact Assessment of existing tion between LGBTI organisations and other legislation. Two initial meetings of the Croa- hu man rights NGOs. The project involves a tian Equality Forum were held. The meetings number of activities, including training for focussed in particular on the need to lobby civil society organisations, the establishment the authorities to undertake a comprehen- of a Guyana Equality Forum and the develop- sive Regulatory Impact Assessment of exist- ment of a comprehensive report on discrimi- ing legislation for its compatibility with rele- nation and inequality in Guyana. vant laws on discrimination. The outcome of these meetings was a commitment to work Having completed all other project activi- within the Regulatory Impact Assessment ties, ERT’s focus since June 2012 has been process to ensure that the right to equality is on completing the report on discrimination mainstreamed and taken as a central consid- and inequality in Guyana. Following a well- eration in all current and future assessments attended conference in June 2012 to validate of legislation and policy under this process. a draft of the report, and a series of consultations with stakeholders from government The primary impact of this project to date and civil society, ERT and SASOD sought fur- is that over 25 CSO representatives, law- ther feedback on the draft report through a yers and human rights activists from vari- formal consultation process between July ous regions of Croatia have been trained in and September 2012. Since September, ERT applying current international equality law - and best practice in their work, greatly in- sation of the report. creasing their capacity to contribute to the has been working on the revision and finali implementation of Croatia’s existing anti-dis This project’s principal impacts have been on crimination legislation. The establishment of ERT’s local partner SASOD, and its immediate the Croatian Equality Forum, and the strong network of groups working on behalf of com- working relationship already established munities exposed to serious discrimination, between the Forum and relevant national such as LGBTI persons, sex workers, persons - living with HIV and AIDS and survivors of opment in that it provides a platform for authorities,joint work and is acoordination significant positiveof CSO efforts devel from improved networking and increased towards better implementation of equality knowledgedomestic violence. of key conceptsThis group in has equality benefited law legislation in the country. which has enabled effective advocacy. SASOD

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successfully established a Forum bring- icy, a move which was publically welcomed ing together disadvantaged groups from a by the National Child Care and Protection broad spectrum, increasing their capacity Agency. Aside from the value of this policy to challenge discrimination. This group also as an important area in which to advocate, in civil society actors with knowledge of the partitself, to SASOD counter had public identified perceptions child protection in Guyana keybenefited concepts from in training,equality whichlaw. This provided increased 35 - capacity was further developed through en- philia. On 8 December, SASOD convened a “Walkwhich for conflate Equality” homosexuality with other withNGOs paedounder cases of discrimination on different grounds. the auspices of the Guyana Equality Forum Ingagement part as a in result field of research, the support documenting provided - by this project, SASOD has been undertak- - ing increasingly effective advocacy, entering tionestablished in the mediaunder andthe firstreinforced ERT-SASOD the public pro ject. The event attracted significant atten on the vexed question of decriminalisation of issues by bringing together leading women’s same-sexnegotiations intimacy with senior between government men. figures andpresentation indigenous of rights a unified groups front with on the equality LGBTI community which SASOD represents. Guyana 2: Empowering Civil Society to Address Societal Prejudice and Undertake In respect of raising public awareness, SASOD Advocacy on Discrimination against LGBT has developed concepts and content for a se- Persons ries of public advertisements highlighting issues of discrimination – in particular against This second project on Guyana commenced - nalisation of these advertisements is pending project in Guyana, and is implemented again LGBTI people, but also other groups. The fi in Octoberpartnership 2011, with overlapping SASOD. The with two ERT’s projects first poll conducted by the Coalition Advocating are closely interconnected: the second, fo- forreceipt Inclusion of the findingsof Sexual from Orientation a national which opinion set cusing on media, political and international out to examine public attitudes towards gay, lesbian and transgender people in Guyana. on the development of basic capacities and SASOD believes that waiting for the results toolsadvocacy, for advocacy. builds on the first, which focused of this exercise will allow them to ensure that the advertisements tackle the most impor- Following successful completion of the pro- tant areas of misconception and modify their messages to achieve maximum impact. - ingject’s workshops first activity, in June the 2012,Advocacy ERT Conference, and SASOD Following some delays in implementation, focussedand the completion on the development of the first of of an four Advocacy train this project has made substantial progress Strategy to guide the implementation of an towards its ultimate objective. A week of in- advocacy campaign for the period October tensive advocacy activities in June 2012 suc- 2012 – April 2013. The Advocacy Strategy cessfully built on SASOD’s work to develop a coalition of organisations interested in advocating improved protection from dis- Implementingwas finalised in theOctober Advocacy 2012. Strategy, in crimination. These organisations have then November 2012 SASOD worked with child developed a shared advocacy agenda – and rights NGOs to develop a child protection pol- then a full advocacy strategy – based on the

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recommendations of the report, with repeal discrimination to combat religious discrimi- of discriminatory laws affecting the LGBTI nation and promote religious freedom. The population, and inclusion of sexual orienta- project is implemented in partnership with tion and gender identity as grounds of dis- two of Indonesia’s leading NGOs, the Indone- crimination, as central concerns. The media sian Legal Aid Foundation (YLBHI) and the has been successfully engaged in support Institute for Policy Research and Advocacy of these advocacy priorities, as evidenced (ELSAM) and involves a range of activities by the favourable coverage received for the including training, documentation, produc- - tion of a country report on discrimination lenge remains in securing the active support and inequality in Indonesia with a focus on of“Walk the authoritiesfor Equality” for While reforms, a significant particularly chal on religion-based discrimination, and the devel- the protection of persons of different sexual opment of advocacy strategies. orientation and gender identity, the project has allowed the LGBT community to build - strong foundations, in particular through the port on religious discrimination in Indo- media, to achieve this. nesiaIn the was first developed half of 2012, by aELSAM, draft ofincorpo the re-

Guyana 3: Combating Discrimination through its network of local legal aid insti- through Advocacy and Strategic Litigation tutes.rating ERT field and research ELSAM undertaken cooperated toby furtherYLBHI in Guyana develop the draft between July and October, and since October, ERT has worked on this This third project on Guyana formally started second draft with a view to completing the in January 2013, overlapping with ERT’s sec- report for publication. ond Guyana project, which comes to an end in mid-April 2013. It is being implemented During September and October 2012, YLBHI in partnership with SASOD and the Justice developed an Advocacy Strategy paper set- Institute of Guyana. The project aims to ad- ting out proposals to take forward advocacy to address discrimination on grounds of reli- ERT’s research in Guyana: (1) a failure of im- gion and belief. The paper examines, among plementationdress two major and problems enforcement identified of laws through which other things, the idea of establishing a Forum provide protections from discrimination; on Religious Discrimination bringing togeth- and (2) the stark difference between the er interested NGOs and religious minority legal rights of LGBTI persons and all other groups to develop a coordinated advocacy persons. The project’s activities include fur- strategy. At the same time as developing this ther advocacy for reform of the Prevention of paper, YLBHI planned and organised the Discrimination Act, strategic litigation, and a - judicial colloquium. ence, which took place on 30-31 October 2012.project’s The final conference activity, was an Advocacyattended by Confer 20 of Indonesia: Empowering Civil Society to Use Non-discrimination Law to Combat religious freedom in Indonesia and YLBHI’s Religious Discrimination and Promote Re- 14the local25 largest legal aidNGOs institutes working (one in theon fieldeach orof ligious Freedom Indonesia’s 14 largest islands). During the Conference, YLBHI and ELSAM presented This project aims to build the capacity of In- donesian civil society to use the right to non- aforementioned report, and presented the the initial findings of their research for the

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paper on advocacy to address discrimination grounds; (ii) the different forms of prohib- on grounds of religion and belief. ited conduct; (iii) material scope; (iv) exceptions; (v) enforcement; access to justice; (vii) The main impact of this project has been to remedies and sanctions; (viii) positive ac- add a level of competence on the application tion; and (ix) positive duties. In each of these of the right to non-discrimination among a areas, the paper set out and explained the group of civil society actors which is already relevant principle(s) from the Declaration of highly capacitated and engaged in advocacy Principles on Equality and the relevant inter- on other human rights issues. The project national obligations and standards. Follow- has also provided a platform for ERT to en- ing the analysis of standards in each section, gage in advocacy on the protection of reli- the document set out draft provisions which gious minorities, urging such concerns to might act as a starting point for the drafting be addressed through effective protection of national legislation. from discrimination, as well as protection of the rights to freedom of religion and oth- The second paper, “Global Overview of er rights. As a result of these interventions, Equality Laws” was also based heavily on made both in Indonesia and through the UN the Declaration. The paper provided an in- system, there is an increasing level of aware- troduction to the right to equality in interna- ness of the need to provide protection from tional law, and the status of the obligation to discrimination and discriminatory violence enact anti-discrimination legislation. Based on grounds of religion or belief. on the Declaration, the paper then set out the requirements of comprehensive equal- Jordan: Addressing Discrimination and ity legislation, in order to provide a bench- Violence against Women in Jordan mark to measure states’ compliance. The

The objective of this project, which started in January 2011, is to contribute to the protec- withpaper the further obligation defined to and enact elaborated comprehensive a scale tion of women from all forms of discrimina- equalityof five different law, and degrees provided of selected state compliance examples tion in Jordan at the societal and legal level. of states which fall within each degree group. ERT is implementing this project in Jordan as a partner to Mizan, an Amman-based organi- Kenya 4: Improving Access to Justice for sation which is one of the most prominent Victims of Gender Discrimination and active human rights and legal defence NGOs in the Middle East. This project, which is funded by Comic Re- lief and implemented in partnership with the In August 2012, ERT completed two pieces of Federation of Women Lawyers – Kenya (FI- work to contribute to a report on discrimina- DA-Kenya) aims to increase access to justice tion and inequality produced by Mizan. The for women and girls in Kenya. The project’s central activity involves the establishment of of Comprehensive Anti-discrimination Law” community-based legal advice services (re- soughtfirst paper, to provide “Guidelines a best forpractice the Development guide, based ferred to as Legal Assistance Scheme Part- on the Declaration of Principles on Equality, nerships, or LASPs), situated within existing to the content of anti-discrimination legisla- Community Based Organisations (CBOs). tion. The paper contained sections on each This is pursued through a combination of of the following areas: (i) the treatment of -

training, ongoing support and advice and fi

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nancial support to the CBOs and the lawyers the challenges facing women in their com- with whom they work on the project. munity, and establish the link to practices of discrimination. Following the test visits, ERT Between July and December 2012, ERT and and FIDA-Kenya reviewed the assessment FIDA-Kenya completed the research phase of tools and methodology, and made extensive activities. The aim of this phase of activities improvements based on the lessons learned. was to collect data in order to allow the partners to: (a) develop project outcomes, based From September to November 2012, ERT and FIDA-Kenya conducted a survey using a (b) assess the capacity of CBOs in each area two-step representative sample of 973 peo- toon participate the views of in women the LASPs; in five (c) target develop regions; train- ple in 50 locations. Simultaneously, teams ing materials for use in the latter stages of met with CBOs in over 100 locations, and the project implementation. conducted focus groups with women in the communities which these CBOs serve. On the On 20-23 August 2012, ERT and FIDA-Kenya basis of this extensive data collection, ERT conducted test activities for the methodology and FIDA-Kenya developed a Baseline Study and assessment tools. The team visited four in December 2012. The Study provided an CBOs in two deprived areas on the outskirts assessment of the range of issues affecting of Nairobi (Kariobangi and Kibera). During women in the communities covered by the each visit, the team met with CBO staff and Study and their relative importance to wom- carried out an assessment of their technical, that the project should focus on providing the work of establishing and managing a legalen. ERT assistance analysed tothe address findings the and three concluded most LASP.material In eachand financialcommunity, capacity the team to undertake also con- of gender-based violence; (2) Economic in- by CBOs, in order to assess their views on justice,important including problems in particularidentified: widow(1) All formsdisin- ducted a focus group with women identified

Members of FIDA-Kenya visiting CBO in Kibera neighbourhood of Nairobi, October 2012. credit: ERT credit: Photo

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heritance and eviction; and (3) Deprivation tral campaign events, which is scheduled to of education, in particular resulting from take place in the last week of March 2013. early marriage. At the same time, FIDA-Ken- ya reviewed the outcomes of the CBO assess- one day conference, will bring together key ment, and shortlisted 55 CBOs according to a stakeholdersTwo events have from been government planned. agencies The first, and a pre-agreed scoring system. These CBOs will departments, constitutional commissions be invited to participate in the LASP scheme, and civil society to discuss and debate the and will receive training from ERT and FIDA- principal recommendations in the report Kenya. They will be provided with a manual In the Spirit of Harambee. Discussions will and reporting forms, and will establish and focus in particular on the need for compre- advertise the services in their locality. hensive anti-discrimination law, and the key principles which such legislation must fol- Kenya 5: Promoting Equality Inclusive of low to conform to Kenya’s obligations under Sexual Orientation and Gender Identity international law. The ultimate objective of the Conference is to seek a consensus on the This project builds on work carried out un- need for legal reform on equality to be a major priority for the new parliament. A second, ERT in Kenya, which centred on capacitating public panel discussion event will provide an civilder thesociety first tothree advocate projects for implemented improved legal by opportunity for members of the public and protection from discrimination, developing media to discuss the deliberations of the con- proposals for comprehensive equality law, ference, and provide input on the need for and advocating for the enactment of such a the legislation, as well as its content. law. As a result of these projects, ERT developed and published In the Spirit of Haram- Efforts to establish a pilot legal service for bee: Addressing Discrimination and Inequal- LGBTI persons have been hampered by se- ity in Kenya, - ment of the rights to non-discrimination and partner organization, the Gay and Lesbian equality in thethe country. first comprehensive assess Coalitionvere organisational of Kenya. difficultiesHowever, infaced early by 2013,ERT’s ERT reached an agreement with the National This project is composed of four activities: Gay and Lesbian Human Rights Commission (i) continued civil society campaigning for to establish a service providing legal advice the introduction of comprehensive sub- and assistance for LGBTI persons. stantive equality legislation and policies inclusive of sexual orientation and gender Malaysia: Empowering Civil Society to identity; (ii) distribution of the ERT report Combat Discrimination through Collective on equality in Kenya to a minimum of 250 Advocacy and Litigation Kenyan stakeholders; (iii) convening of a central campaign events featuring a pres- Launched in March 2010, this project in- entation and discussion of the recommen- volved the provision of training to civil so- dations of the report; (iv) establishment of ciety actors, lawyers and the judiciary on a pilot legal service for LGBTI persons who equality law, development of a report on complain of discrimination. discrimination and inequality in Malaysia, and the establishment of a Malaysian Equal- Since the beginning of 2013, ERT has fo- ity Forum. ERT worked with its local partner, cused on planning and organising the cen- the Kuala Lumpur based NGO Tenaganita.

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35 workshop participants of both interna- project, the publication of a country report tional and domestic equality and non-dis- onThe Malaysia, final activity was to completed be delivered in Novemberunder this crimination law, and an increased capacity to 2012. The report, Washing the Tigers: Ad- develop advocacy strategies through which dressing Discrimination and Inequality in their improved knowledge can be used to Malaysia, is the second in the ERT country seek improvements in domestic protections report series and provides a comprehensive of the rights to equality and non-discrimi- assessment of discrimination on a range of nation for all vulnerable groups within Ma- grounds, together with an analysis of laws laysian society; and, through the publication and policies on discrimination. The report of Washing the Tigers, engaging key stake- includes assessment of patterns of discrimi- holders and legal experts in Malaysia with nation on grounds of race and ethnicity, in- regards to improving the protection and im- digenous status, gender, religion and belief, plementation of the rights to equality and sexual orientation, gender identity, health non-discrimination. status, age, disability, citizenship, and political opinion. It also analyses the legal and Nigeria: Discrimination and Torture policy framework related to equality in Ma- laysia and makes recommendations in 10 Under this project, which started in August different areas of law and policy. Among its 2010, ERT supports the work of a Nigerian major conclusions is that ethnic Malays and NGO, the Legal Assistance and Defence Pro- natives in Sabah and Sarawak (the Bumi- ject (LEDAP) with whom it works on anoth- putera er project (Torture and Disability in Nigeria - and India) to provide direct assistance to lived their) continue legitimacy; to benefit that discrimination from decades- victims of discriminatory torture. The fund- old affirmative action policies that have out ing for the project is provided by the United that LGBTI persons suffer criminalisation Nations Voluntary Fund for Victims of Tor- andbased persecution. on religion is very significant; and ture (UNVFVT). ERT’s primary responsibilities involve overseeing the case assessment Following publication, the report attracted process, advising on the discriminatory elements of the torture and ill-treatment with stories appearing online, in print and which has occurred and managing the nar- insignificant broadcast interest media. inOne the of Malaysianthe report’s media, main recommendations – the repeal of constitu- to the donor. - rative and financial reporting of the project ing ethnic Malays – was highly controversial, leadingtional affirmative to calls for actionthe prosecution provisions of favourthe Di- rector of ERT’s Malay partner organisation casesBetween under July the and Torture December and Disability 2012, fifteen pro- and further fuelling interest in the media. ject,cases following were identified some initial as investigations viable strategic and case analyses by Nigerian lawyers. The impact of this project includes the successful establishment of a functioning na- Through providing support to individual tional Equality Forum which provides an torture victims and enabling them to pursue institutional framework for civil society dia- legal claims for torture against the Nigerian logue on equality and discrimination issues authorities, this project has secured redress in Malaysia; the increased understanding of for the individual victims, and contributed to

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efforts to reduce impunity for discriminatory Sudan 1: Empowering Civil Society in Su- torture in Nigeria. dan to Combat Discrimination

Solomon Islands 2: Empowering Civil This project is implemented in partnership Society to Promote Gender Equality and with the Sudanese Organisation for Research Reduce the Incidence of Gender Discrimi- and Development (SORD). The project aims nation in the Solomon Islands to build the capacity of Sudanese civil society organisations to advocate for improved pro- In this project, which began in April 2012, tection from discrimination and for the pro- ERT works in partnership with the Secretari- motion of equality, through training, support with documentation, publication of a country report and support with the development at of the Pacific Community Solomon Islands- of an advocacy strategy. sourceCountry Team Office (RRRT). (SPC-SI) ERT and is responsible the Secretariat for trainingof the Pacific and Communityreport writing Regional activities Rights under Re The implementation of this project was sus- this project. pended between June and September 2012, as a result of escalating protests against - the regime of President Al-Bashir – and the search and preparation for the production crackdown on civil society which followed ofIn a the country final quarterreport on of discrimination 2012, ERT began and rein- the protests – which made it impossible for equality in the Solomon Islands. ERT under- SORD to work on the project activities. In the took desk based research and analysis to de- period after Ramadan (which ended on 18 velop the sections of the report dealing with August 2012), many of those arrested during patterns of discrimination and inequality and the protests were released, the political situ- the legal and policy framework. In February ation calmed and security improved. As a re- 2012, ERT provided detailed guidance to SPC- sult, SORD was able to return to work shortly SI on where and how to conduct additional after the end of the suspension period, and implementation of the project resumed at full and incidences of discrimination. Work to de- strength at the beginning of October 2012. velopfield research and draft and the documentation report is ongoing. of patterns

The key impact and outcome of this project materials towards the report on discrimi- achieved so far is in increasing the capacity nationIn November, and inequality SORD completed in Sudan. a Thefirst mateset ofof 18 training participants in understand- rials contain extensive testimony collected ing and applying anti-discrimination law, and undertaking advocacy. CBOs and activists are better prepared to develop advocacy thethrough restrictions field research on civil society in different activity parts – and of submissions regarding constitutional reform identifythe country discrimination – a significant on a challenge wide range given of as it relates to equality, and to undertake grounds. Since receiving the materials, ERT advocacy at the UN level. Moreover, these has focused on developing it for publication. 18 persons have been trained to act as focal points within their communities, monitoring Following extensive preparations and con- and documenting cases of gender-based and sultation with the target groups, SORD held other discrimination and advocating for im- consultation meetings on issues of discrimi- provements to law and policies. nation in Sudan in mid-December. Meetings

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were convened with three different stake- extremely challenging and at times hostile holder groups: (1) politicians and govern- political environment. the media. The outcomes of these meetings Sudan 2: Equality and Freedom of Opin- werement officials;used to develop(2) religious an outline leaders; advocacy and (3) ion, Expression and Association strategy paper to guide SORD’s work on equality and non-discrimination following This project is implemented in an informal completion of the project. This paper was partnership with the Journalists for Human then the focus of further discussions with Rights (JHR) network which works through civil society partners at an Advocacy Strategy a group of independent journalists and hu- conference convened on 30 December 2012. man rights defenders operating both inside Sudan and abroad. The project aims to sup- In March 2013, ERT travelled to Sudan to port this highly vulnerable group of human rights defenders, and at the same time devel- - op their understanding of the importance of tifyexplore next issuessteps that raised would by themake field possible research, the the rights to equality and non-discrimination publicationvalidate some of ofa countryits findings, report as wellon all as forms iden in responsible journalism. of discrimination and inequalities in Sudan.

Despite the severe challenges which ERT implementing in Sudan, was severely affect- and SORD have faced in implementing this edThis by project, the protests like the against first theone Sudanese which ERT gov is- project, it has had an important impact on ernment and the subsequent backlash by the civil society capacity to combat discrimi- government in June, July and August 2012. nation. A train-the-trainer workshop de- The JHR network and the project staff were livered in October 2011 and two follow-up closely involved in the protest movement, workshops delivered in January and Febru- and were thus particularly exposed to the re- ary 2012 developed the technical capacity pressive tactics employed by state agencies and knowledge of participants in the area and the security services. of anti-discrimination law, and helped to expand the nascent network of organisa- Given the involvement of the JHR members in tions interested in pursuing legal reform the protest movement and their consequent on discrimination. Organisations involved exposure to the human rights abuses visited in field research benefited in terms of in- upon protestors, the provision of support to creased capacity to document discrimina- the JHR network gained pressing importance tion, as evidenced by the range of patterns during the period. The project team devel- of discrimination identified through the re- oped and led an advocacy campaign aimed search. The research itself, once published at the release of detained journalists and as part of the report on discrimination and sought to engage and inform international inequality in Sudan, is expected to make a human rights organisations interested in significant contribution in terms of raised supporting dissident journalists. As a result awareness of discrimination in Sudan. Fi- of extensive networking and engagement, nally, in an important sense, the project has the project coordinator was able to establish enabled SORD to continue its work, both - in the area of discrimination and other cation of journalists who had been detained human rights abuses, in the context of an anda small ill-treated, committee campaign to coordinate for their the identifirelease

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and provide them with practical support the ability of journalists to report on human after their release. The committee raised rights violations and provided a mechanism funds from international funders, colleagues to support and protect those who put them- and other allies in order to address the im- selves at risk in so doing. The impacts of these changes include a modest increase in free- needs of former detainees. dom of the press, greater awareness of the mediate financial, psychological and medical violations of freedom of expression and other In addition, the project staff, through their human rights perpetrated by the Sudanese human rights monitoring work, sought to authorities, and, in a small number of cases, raise awareness of the human rights situ- the release and protection of individuals de- ation in Sudan in the national and inter- tained or otherwise mistreated for challeng- national media, through the publication of ing the regime’s human rights record. Second, through providing training to Sudanese jour- details of human rights violations. nalists, the project has successfully increased statements and media briefings containing the understanding of the importance of the In December 2012, ERT and the JHR held a rights to equality and non-discrimination strategy development roundtable with 25 among the members of this civil society leading members of the JHR in attendance. movement. As a result of the training pro- Over the course of four days this group dis- vided by ERT, Sudanese journalists are able cussed outline proposals for a long-term or- to identify and document cases of discrimina- ganisational strategy and advocacy strategy tion and understand the role which the media for the JHR which had been developed by can play in both combating discrimination the JHR project coordinator together with and ensuring that speech inciting discrimina- ERT’s project manager. As a result, the JHR tion and violence is not perpetuated. At this has largely agreed the main components of critical juncture in Sudan’s history, and in the its organisational strategy for the coming - two years. ist speech in both Sudan and South Sudan, thiscontext is a majorof inflammatory achievement. racist and national In January 2013 ERT and the JHR launched a new JHR website, JHR-online.org. The website Sudan 3: Equality and Freedom of Expres- is intended to provide a platform for the JHR sion in Sudan and South Sudan to promote its advocacy and campaigning, and to provide a hub for the dissemination of This project began in November 2012, in in- information on the human rights situation in formal partnership with the Journalists for Sudan. The site contains statements and re- Human Rights (JHR). The project aims to ports produced by the JHR and its members, build on the success of ERT’s collaboration together with news and reports produced by with the JHR, expanding the work to involve international NGOs. journalists and human rights defenders from South Sudan as well. In addition to providing ongoing support to journalists working ERT and the JHR, this project has continued in the repressive media environment in both toDespite evidence the impact significant in two obstacles critical areas. faced First, by countries, and providing training on human rights and equality, the project aims to in- support to the JHR, the project has enhanced crease collaboration between those working by providing financial, practical and technical

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in Sudan and South Sudan. In so doing, the among CSOs; (3) increasing experience of project aims to make a contribution to tack- documenting cases of discrimination among ling one of the most important human rights CSOs in the target regions; and (4) increas- and security concerns between the two ing cooperation between CSOs in the target countries: the perpetuation of hate speech regions through the creation of a Regional by the political leadership and media in Su- Equality Forum. dan and South Sudan. In May 2012, a Baseline Study was produced Since commencing the project, ERT and the by ERT’s partners in Turkey, following guid- JHR have focused their activities on building ance provided by ERT. The Study provides contacts with human rights defenders and initial research as a basis for all further project activities. JHR organisational and advocacy strategy developedjournalists underin South the Sudan, Sudan and 2 project. finalising These the With support from ERT, SPU organised an in- activities are conducted in anticipation of itial roundtable event for CSOs in the region, - which took place in Izmir on 1 August 2012. ing together leading independent journal- At the event, SPU presented the project’s iststhe firstand human project rights event, defenders a roundtable from bring both aims and objectives, provided an opportuni- Sudan and South Sudan, to discuss coopera- ty for dialogue between stakeholders work- tion to combat human rights abuses through ing on different discrimination issues and the media, with a particular focus on tackling problems, promoted the merits of establish- hate speech. ing a regional Forum to coordinate work to combat discrimination, and discussed how Turkey: Empowering Civil Society to Chal- work to combat discrimination on grounds lenge Discrimination against LGBTI Per- of sexual orientation and gender identity sons in the Aegean and Marmara Regions can be incorporated into the work of other of Turkey organisations. Feedback from participants suggested enthusiasm for work in this area This project began in January 2012 and is and that most organisations were open to implemented in partnership with a Turkish the possibilities of joint working. LGBT rights organisation based in Izmir, the Black Pink Triangle (SPU). It seeks to ad- In October 2012, ERT travelled to Izmir dress the lack of capacity among civil soci- and Bursa to deliver two three-day train- ety organisations (CSOs) in two of Turkey’s ing workshops on anti-discrimination law regions to challenge discrimination against and policy. Topics covered included: (1) an LGBT persons and to advocate for improved introduction to international and Turkish legal protection from discrimination, in- law on equality and non-discrimination, cluding on grounds of sexual orientation including Turkey’s international commit- and gender identity, through (1) improving ments; (2) practical sessions focussed on documentation of all types of discrimina- - tion, including against LGBT persons, from ferent examples of discrimination; and (3) presentationsissue-spotting, onand casesthe identification of discrimination of dif of a published report; (2) increasing knowl- experienced by participants. As the focus of edgea unified of anti-discrimination perspective on equality law and in conceptsthe form this project is on the mainstreaming of LGBT

The Equal Rights Review, Vol. Ten (2013) 182 credit: ERT credit:

Members of the women’s organisation Ka-der Bursa at ERT training in Bursa, Turkey, October 2012. Photo Photo credit: ERT credit: Photo Richard Wingfield, ERT (left) conducting an exercise at training in Izmir, Turkey, October 2012.

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of Turkish activists to mainstream LGBTI perspective on equality, LGBT persons were groups within the national human rights and particularlyrights through encouraged the application to share of theirthe unified expe- equality discourses. riences, and care was taken to draw parallels with discrimination suffered by other vul- Ukraine: Empowering Civil Society to nerable groups, including women and ethnic Challenge Discrimination against LGBTI minorities. Feedback was very positive, and Persons in Ukraine a number of groups expressed an interest in being further involved with the project both This project, which commenced in November as researchers and members of the Regional 2012, is implemented in partnership with an Equality Forum. LGBTI organisation, Nash Mir, based in Kiev. The project involves the delivery of training The initial meeting of the Regional Equality to civil society organisations, support to an Forum (REF) was held in November 2012 in existing Coalition on Combating Discrimina- Izmir. The meeting brought together over tion, and the development of a report on dis- 30 CSO representatives and activists from crimination and inequality in Ukraine. across the region to discuss areas of common concern, with a focus on mainstream- ERT travelled to Ukraine on 17-18 January ing LGBTI concerns into the discourse of 2012 to meet with Nash Mir for an in-depth regional civil society. In particular, attitudes discussion on all aspects of the project. In ad- displayed in the media towards minor- dition, ERT conducted a focus group discus- ity groups were discussed, with this be- sion with representatives of civil society organisation, in order to assess their knowledge advocacy work. A further two meetings of and understanding of equality law and their theing identifiedREF took placeas a possiblein February area 2013, for future with capacity to work on discrimination issues. the third meeting being brought forward to coincide with SPU’s annual “March against United Kingdom: Greater Protection for Hate Crime”. All meetings were well attend- Stateless Persons in the UK ed by CSO representatives from across the project regions, who have actively engaged Under this project, ERT continued to be an ac- in discussion on strategies for joint working tive member of the UK Detention Forum. ERT and advocacy. attended quarterly Detention Forum meetings throughout the reporting period and The primary impact of this project to date is contributed to the Detention Forum advocacy that over 30 CSO representatives and human rights activists from the two target regions of UK. In this regard, ERT continues to play a Turkey have been trained in applying current strategy to combat indefinite detention in the- international equality law and best practice ness issue in the UK. ERT is a member of the in their work, greatly increasing their capac- key role in raising the profile of the stateless of the ity to advocate for the rights of all marginal- Detention Forum, and contributed towards ised groups in society. Through establishing theWorking strategy Group and on theory Indefinite of change Detention to end in- strong links with organisations working on a variety of grounds, this project has made Working Group and presented to the Deten- tiondefinite Forum detention in October that 2012.was developed by the a significant contribution to the efforts

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July – December 2012

July 2, 2012: Published Burning Homes, Sinking Lives: A situation report on violence against stateless Rohingya in Myanmar and their refoulement from Bangladesh.

July 3, 2012: Participated in UNHCR Roundtable Discussion on Statelessness with Civil Soci- ety Organisations, in Geneva, Switzerland.

July 4-5, 2012: Participated at UNHCR Annual NGO Consultations and spoke at the special session on statelessness at the NGO Consultations, in Geneva, Switzerland.

July 4-5, 2012: Conducted a series of advocacy meetings on the deteriorating human rights - nent missions and NGOs, in Geneva, Switzerland. situation for Rohingya in Myanmar and Bangladesh, including joint-NGO briefings for perma July 16, 2012: Issued a joint NGO statement condemning the abuse and violence carried out by state authorities in Myanmar against the Rohingya community for over one month.

July 18, 2012: Launched ERT Guidelines to Protect Stateless Persons from Arbitrary Detention, in London, UK.

July 24, 2012: Participated in the UK Detention Forum, - tion meeting, in London, UK. Working Group on Indefinite Deten July 26, 2012: Published – as co-editor – the Special Issue on Statelessness of the European Journal of Migration and Law.

July 26, 2012: Conducted a focus group with Bosnian civil society organisations involved in work on discrimination, inequality and other human rights concerns, in order to assess the capacity building needs of this group, in Sarajevo, Bosnia and Herzegovina.

August 21-23, 2012: Conducted focus groups with victims of gender discrimination and assessments with community-based organisations in the Kibera and Kariobangi districts of Nairobi, Kenya, in order to assess the feasibility of establishing community legal aid services.

August 27-31, 2012: Provided training on key concepts in equality law to a total of 44 civil society organisations, in Sarajevo and Banja Luka, Bosnia and Herzegovina.

September 10-18, 2012: Provided training on discriminatory ill-treatment to 70 civil society organisations, in Baku, Ganja and Guba, Azerbaijan.

The Equal Rights Review, Vol. Ten (2013) 185

September 11-13, 2012: Served as Temporary Advisor to the World Health Organisation in Technical Consultation on Sexual Health, Human Rights and the Law, in Geneva, Switzerland.

September 17, 2012: Presented papers at a global conference on the plight of the Rohingya organised by the Perdana Global Peace Foundation, in Kuala Lumpur, Malaysia.

September 24, 2012: Met with Dr Abu Saleh Shariff, President of the Centre for Research and Debates on Development Policy in New Delhi, India, who was visiting the UK to research the possibility of establishing a new Equal Opportunities Commission in India, in London, UK.

October 5-10, 2012: Provided training on key concepts in equality law to more than 30 civil society representatives, in Bursa and Izmir, Turkey.

October 9, 2012: Made a stakeholder submission to Bangladesh UPR on the human rights of stateless Rohingya in Bangladesh.

October 17-18, 2012: Delivered a session on the human rights of stateless Rohingya at the SEAHRN Human Rights Conference, in Jakarta, Indonesia.

October 18, 2012: Participated in a discussion group convened by the Human Dignity Trust (HDT) in London, UK, to consider advocacy and awareness-raising activities which could complement a case which HDT and the Jamaica Forum of Lesbians, All-Sexuals and Gays are taking to the Inter-American Commission on Human Rights to challenge the criminalisation of same-sex intimacy between men in Jamaica, in London, UK.

October 24, 2012: Presented as keynote speaker on “Global and European Trends in Equali- ty Rights”, at EU-Indonesia Civil Society Human Rights Seminar on Non-discrimination: From Principles to Practice, organised by the European Union, in Jakarta, Indonesia.

November 2, 2012: Sent a Letter of Concern to President Thein Sein of Myanmar and published an Emergency Report in response to new wave of violence against Rohingya in Octo- ber in Rakhine State, Myanmar.

November 12, 2012: Published Washing the Tigers: Addressing Discrimination and Inequal- ity in Malaysia, the second in ERT’s series of comprehensive country reports which combine an assessment of the lived experience of those exposed to discrimination and inequality and analysis of relevant laws, policies and practices.

November 15, 2012: Submitted a note on the human rights crisis faced by stateless Rohing- ya in Myanmar to the U.S. Department of State, prior to President Obama’s visit to Myanmar.

November 24-25, 2012: Provided training on key concepts in equality law to 20 human rights defenders and civil society organisations, in Minsk, Belarus.

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November 30, 2012: Co-hosted, with the School of African and Oriental Studies, a panel discussion on “Democratisation, securitisation and the human rights of stateless Rohingya in Burma”, in London, UK.

December 10, 2012: Issued a statement on the connection between the right to equality and the right to participate in public life, to mark International Human Rights Day 2012.

December 17-21, 2012: Convened a strategy development roundtable for human rights defenders and journalists from Sudan.

December 20, 2012: Submitted a legal opinion on the Draft Anti-Discrimination and Human Rights Bill 2012 to the Senate Committee on Legal and Constitutional Affairs in Australia.

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Note to Contributors

The Equal Rights Trust invites original unpublished articles for future issues of The Equal Rights Review. We welcome contributions on all aspects of equality law, policy or practice. We encourage articles that examine equality in respect to cross-cutting issues. We also encourage articles that examine equality law policy or practice from international, regional and national perspectives. Authors are particularly welcome to submit articles on the basis of their original current or past research in any discipline related to equality.

Peer Review Process Each article will be peer reviewed prior to being accepted for publication. We aim to carry out the peer review process and return comments to authors as quickly as possible.

Further Information and Where to Submit [email protected] Articles must be submitted by email attachment in a Microsoft Word file to: For further information regarding submissions, please email: [email protected]

Submission Guidelines ▪ Articles should be original, unpublished work. ▪ Articles must be written in United Kingdom English. ▪ Articles must contain footnote or endnote referencing. ▪ Articles should be between 5,000 and 10,000 words in length. ▪ Articles must adhere to the ERT style guide, which is available at: http://www.equalrightstrust.org/ ertdocumentbank/ERR%20 STYLE%20GUIDE.pdf

The Equal Rights Review, Vol. Ten (2013) 188

The Equal Rights Trust

The Equal Rights Trust (ERT) is an independent international organisation whose purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of

socialEstablished justice. as an advocacy organisation, resource centre and think tank, ERT focuses on the complex relationship between different types of discrimination, developing strategies for translating the principles of equality into practice.

Chair of the Board: Bob Hepple

Board of Directors: Sue Ashtiany ▪ Danby Bloch ▪ Hywel Ceri Jones ▪ Sonia Correa ▪ Asma Khader ▪ Tapan Kumar Bose ▪ Claire L’Heureux-Dubé ▪ Gay McDougall ▪ Bob Niven ▪ Kate O’Regan ▪ Michael Rubenstein ▪ Stephen Sedley ▪ Theodore Shaw ▪ Sylvia Tamale

Founding Chair: Anthony Lester

Executive Director: Dimitrina Petrova

Staff: Amal De Chickera (Head of Statelessness and Nationality Projects) ▪ Jim Fitzgerald (Head of Advocacy) ▪ Mickella Lewis (Head of Development) ▪ Anne Muthee (Financial Manager) ▪ Nicola Simpson (Programmes and Communications Officer) ▪ Jeana Vuma (Administrative and Financial Assistant) ▪ Joanna Whiteman (Legal Officer) ▪ Richard Wingfield (Advocacy and Programmes Assistant)

Consultants: Ferdousi Akter ▪ Natalie Brinham ▪ Boriss Cilevics ▪ Libby Clarke ▪ Ranajit Dastidar ▪ As Finawati ▪ Stefanie Grant ▪ Shohan Ekramul Kabir ▪ ▪ Abul Kalam ▪ Krassimir Kanev ▪ Bo Bo Lansin ▪ Oliver Lewis ▪ Saiful Huq Omi ▪ Eric Paulsen ▪ Sriprapha Petcharamesree ▪ Vadim Poleshchuk Adnan Kadribašić

Volunteers: Alexis Arsenault ▪ Sara Bincoletto ▪ Rosie Eatwell ▪ Sarah Hutnik ▪ Vania Kaneva ▪ Rebecca Mandal ▪ Virginia Mantouvalou ▪ Sara McLaughlin ▪ Aditi Mittal ▪ Sandra Nwangwu ▪ Kirsty Schaper ▪ Victoria Schmeda

Sponsors: Allan and Nesta Ferguson Charitable Trust ▪ American Jewish World Service ▪ Arcus Foundation ▪ Barrow Cadbury Trust ▪ Comic Relief ▪ European Commission ▪ Evan Cornish Foundation ▪ Ford Foundation ▪ Swedish International Development Agency ▪ UN Voluntary Fund for the Victims of Torture

Pro Bono Support: Ashurst ▪ Cambridge Pro Bono Project ▪ Cloisters Chambers ▪ Reed Smith

The Equal Rights Review, Vol. Ten (2013) (2013) Ten Volume Review Rights The Equal