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Home , Sexual Offences Act 1967, Transgender rights

ISSUE FOCUS 65 COMPLEX FAMILIES AND VULNERABLE CLIENTS

If you are reading The laws Ireland decriminalised this while sitting in a a few years Western democracy, later after the Court case of you may feel that the Norris v Ireland.2 arguments in favour of England and Wales partially , , bisexual and of love decriminalised homosexuality by (LGBT+) way of the Sexual Offences Act 1967 have largely been won. However, and followed suit in 1980. it has not always been this way However, much of the Commonwealth, and, for those outside these liberal which inherited Britain’s Victorian laws, bubbles, the position is often dire. did not follow suit. For example, Singapore As an advisor, if you want to provide still retains s.377A of its Penal Code, which a total 360-degree service to your clients, criminalises male homosexual activity, then you must be aware of the difference describing it as an ‘outrage on decency’. in the way LGBT+ people are treated The fact that Singapore has imposed an across the world, even if you are in a JAMES QUARMBY EXPLAINS THE informal moratorium on prosecutions liberal country. DIFFERENCE IN LGBT+ RIGHTS somewhat ameliorates the position, but it is Avoid assumptions that your client is ACROSS THE GLOBE clearly not sufficient. straight and/or that they would not be Interestingly, the UK never criminalised interested in LGBT+ rights. One or both lesbian relationships, allegedly because individuals in a ‘heterosexual’ couple may To give this article added interest for the draughtsmen of the Criminal Law be bisexual, non-binary or transgender. STEP members, I have conducted an Amendment Act 1885 did not want to Many of us have LGBT+ family members unofficial survey of every one of the 51 offend the famously prudish Queen or friends, whose lives would be hugely jurisdictions in which STEP has a branch Victoria by raising the issue of lesbian . impacted by moving to a country that or chapter. Each jurisdiction has been This complete absence of the mention discriminates against them. ranked according to a ‘traffic light’ system, of lesbianism meant that the UK and These issues can move beyond your pertaining to the five major legal rights Commonwealth laws often left in a role as advisor and into the realm of relevant to LGBT+ people. A green light legal lacuna, which remains to this day. employment. For instance, if you are a means that equality/legal protection exists, It must be remembered that even in manager sending a staff member to a a red light means that there is no equality/ the absence of an outright prohibition on, country that is hostile to LGBT+ people, protection and an amber light represents say, lesbian relationships, gay, lesbian and then you may have to think twice. Bear in all the degrees in between. The latter bisexual people could also be prosecuted mind that this is serious – the following essentially means proceed with care, as you under a variety of public order and morality countries have the death penalty for non- would do on the road. offences, such as the widely used ‘outrages heterosexual activities: Afghanistan, Brunei, Finally, please note that my survey public decency’ offence in the UK.3 Iran, Mauritania, Nigeria, Pakistan, Qatar, results are a mix of objective fact and The associated criminal law issue Saudi Arabia, Somalia, Sudan, the UAE subjective opinion, as issues of sexuality is the for same-sex and Yemen. and are complex and multifaceted, relationships. In the UK, since the partial Using Russia as an example, just and finding accurate information is not decriminalisation in 1967, the age of because the law forbids in always possible. consent for homosexuals was 21 years, a country, it does not follow that it is a safe compared to 16 years for heterosexuals. place for LGBT+ people to be. Similarly, in CRIMINAL LAW This inequality unnecessarily criminalised Singapore, just because the law criminalises This is the first battleground in any countless teenagers, me included, making homosexual behaviour does not mean it fight for equality. To have your sexuality the already difficult path to that is a dangerous place for LGBT+ people to criminalised is a gross breach of human much harder. The UK finally equalised the live. There is a complex mix of law, custom rights, recognised as such by the European age of consent in 2001. and local attitudes that differ even within Court of (the Court). those countries and can shift with the local For example, in Dudgeon v the United FAMILY LAW political climate. Kingdom1 the applicant argued that the The rights to marry and to either have This article is designed to be a first step laws of at that time, children or adopt them are now seen as to raising your awareness of these issues which criminalised homosexual conduct, fundamental human rights. However, you for your clients, your staff and you. I will were a breach of art.8 of the European will be surprised how few countries have measure the extent to which the major Convention on Human Rights (right to embedded these rights. For instance, while regions of the world compare in respect of respect for one’s private life). The Court we have gay in the UK and the LGBT+ rights, by reference to the five legal agreed and as a consequence of this ruling , it is not available in some priorities outlined below. As you will see, the UK government forced Northern other parts of the EU, such as for most of the world, we are a long way Ireland to change its laws, by way of an and Hungary. Rights to adopt vary wildly from equality. Order in Council, in 1982. The Republic of across the world and even within the UK’s →

STEP JOURNAL ISSUE 2 2020 66 ISSUE FOCUS

KEY LGBT+ RIGHTS IN JURISDICTIONS WHERE NO EQUALITY/PROTECTION STEP HAS A BRANCH OR CHAPTER PARTIAL EQUALITY/PROTECTION EQUALITY/LEGAL PROTECTION EXISTS

CRIMINAL FAMILY EMPLOYMENT TAXATION TRANSGENDER RIGHTS Anguilla Australia Austria Bahamas Bahrain Barbados Belgium Belize Bermuda British Virgin Islands Canada Cayman Islands Curaçao Cyprus Gibraltar Guernsey Hungary India Ireland Isle of Israel Jersey Luxembourg Malta Mauritius Mexico Monaco Netherlands Nevis New Zealand Oman Panama Saudi Arabia Seychelles Singapore South Africa St Lucia Switzerland Turks and Caicos UAE UK US

STEP JOURNAL ISSUE 2 2020 COMPLEX FAMILIES AND VULNERABLE CLIENTS 67

domain; for instance, same-sex adoption is Africa not possible in the British Virgin Islands, but Africa is a huge continent, consisting of it is in Bermuda. 54 countries, and yet there is a surprising harmony of approach: homosexuality is EMPLOYMENT LAW mostly either illegal or, at best, tolerated. Protection from discrimination at work South Africa is a welcome exception, with a due to sexuality or is a liberal constitution permitting homosexual fundamental human right and, in the EU, activity and with some protections against sexuality at least is a protected characteristic. discrimination. There is little to report You will find similar protections in many about trans rights in Africa. other countries, but it is hardly the norm in the rest of the world. The position of transgendered people is less clear. Most countries in the European Economic Area have equalised their laws and TAXATION introduced protection from discrimination The main taxation issue is making sure that for lesbians, gays and bisexuals. Same- same-sex couples have the same treatment sex unions, in one form or another, are under the tax system as heterosexual dropped colonial laws criminalising recognised in 14 of the now 27 Member couples, whether married or not. In the homosexual activity. States in the EU. Adoption rights are legal UK, and many other countries, civil in only 12 Member States. Laws protecting partnerships and gay/lesbian are Central Asia gender identity/expression exist in 26 afforded exactly the same rights as their Most countries in this region criminalise Member States. heterosexual equivalents. homosexuality, with the exception of Tajikistan and Russia. Transgendered CONCLUSION TRANSGENDER RIGHTS people fare a little better: there is a right There is no doubt that great advances have The right to have some official recognition to transition in Tajikistan, Turkmenistan been made in securing basic human rights of a change of gender is seen as a and Uzbekistan although these rights are for LGBT+ people in the past 20 years but, fundamental right by transgender people, inconsistently allowed. as my survey shows, there is still much yet alarmingly few countries outside of the work to be done. EU grant this right. Middle East and North Africa It is a depressing fact that in the Most countries in this region have majority of the countries in the world, Note: non-legal factors extraordinarily harsh criminal sanctions. homosexual activity is still illegal, so we The existence of a benign or even For instance, in Iran and Saudi Arabia, sex are a long way from getting even close positive legal framework does not imply between men is punishable by death. Rather to equality or legal protection. At best, social acceptance. For instance, Russia counterintuitively, due to a fatwa issued by transgender people are either ignored or decriminalised homosexuality in 1993, but Ayatollah Khomeini in 1987, transgender maligned; in very few countries are there it is still a hazardous place for people to people in Iran can not only transition, but any positive rights. express their sexuality openly.4 Attitudes also get public funding for gender re- We need to be aware of this wider to LGBT+ people are invariably informed assignment surgery. I am still scratching my picture; increased globalisation means by local culture, religion and politics, and head over that particular anomaly. that our clients, and our co-workers, are frequently this means that our communities The exceptions in the region are Jordan, more likely to be exposed to countries with face ignorance, hatred and contempt on a Iraq and Israel, with the latter acting as a hostile laws. daily basis. beacon of hope. Israel has legal protections Finally, remember that when it comes against discrimination in family, housing to sexuality and gender identity, what you REGIONAL ROUND-UP and employment, and same-sex unions are see is not always what you get, so try not to Asia recognised. It is also unique in the region for make assumptions about who is in front of Let us start with the good news: the two allowing same-sex adoption. you or working beside you. most populous countries in Asia (China and India) decriminalised homosexuality some years ago. However, there is precious little else for LGBT+ people to #LEGISLATION #CAREER celebrate here, with no or little protection #MATRIMONIAL against discrimination nor any right to #PERSONAL DEVELOPMENT adopt or marry. Taiwan is the honourable exception, 1 (1981) 2 (1988) 3 s.5, Criminal Law Act 1977 4 See the which has an equal age of consent, ‘There is no doubt that European Court of Human Rights case of Chechetkin v registration of same-sex relationships Russia (2015) for ample demonstration of this fact and, soon, gay marriage. It is also possible great advances have for trans people to officially change their gender marker. been made in securing The rest of Asia is mostly a depressing basic human rights picture of harsh criminal sanctions for homosexual relationships and no for LGBT+ people in legal protections. Incidentally, Thailand never criminalised the past 20 years but ... homosexuality, and Vietnam and there is still much work James Quarmby TEP is a Partner Timor-Leste, following independence and Head of Private Wealth at from France and respectively, to be done’ Stephenson Harwood, London

STEP JOURNAL ISSUE 2 2020