Children in Court CRINmail 48: Special Edition on LGBTQI Rights

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15 May 2015 subscribe | subscribe | submit information
  • Children in Court CRINmail
    Special Edition on LGBTQI Rights

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    To mark the International Day Against Homophobia, Transphobia and Biphobia on 17 May, CRIN has prepared this special edition of the Children in Court CRINmail highlighting recent cases and legislative developments concerning LGBTQI persons and the impact of these developments on children’s rights. We first turn our attention to the worrying trend of restricting children’s access to information under the false pretense of “protecting children from gay propaganda”, an issue that will also be explored in this week’s special edition of the English CRINmail. Then we look at violations of the rights of LGBTQI children to bodily integrity, legal recognition and freedom from discrimination. Finally, we have gathered a selection of stories concerning discrimination against children on the basis of their parents’ LGBTQI status.

    Latest news and cases

    Access to information

    Book bans and sexuality education

    Last month the Supreme Court of Chile refused to ban the distribution of a book presenting same-sex parenting to kindergartners. The NGO Movement for Integration and Homosexual Freedom, which co-authored ‘Nicolas Has Two Dads’, hailed the ruling, noting that this is the first time the highest court in the country has decided in favour of sexual diversity. The Supreme Court affirmed a previous decision by the Court of Appeals of Punta Arenas, which held that there is no set definition of a family in the Constitution, and that the Convention on the Rights of the Child (CRC) conceives the existence of a variety of family types. Read CRIN’s case summary of the Court of Appeals decision.

    In Canada, a high school student and her mother filed a complaint last July with the Alberta Human Rights Commission about the inadequacy of sex education classes delivered by a Christian anti-abortion centre on behalf of a school. They alleged that the programme excluded information on same-sex relationships as well as consent, and misinformed students about the effectiveness of contraception methods. The school board withdrew the programme following the complaint.

    Sanctions in Russia, Central Asia and Uganda

    Last year Russia’s Constitutional Court confirmed the legality of a provision that imposes administrative sanctions on persons distributing information about “non-traditional sexual orientation” to children. The Court held that the legislation is in line with its obligations under the CRC, as well as several other international human rights instruments. Read CRIN’s summary of the court decision. Since this case was decided a complaint against the State has been submitted to the European Court of Human Rights. There are also three complaints about regional administrative laws relating to “homosexuality propaganda against minors” pending before the European Court. Read ILGA-Europe’s intervention in the case, which details how limits on age-appropriate information about alternative sexual orientations are contrary to children's best interests.

    In Central Asia, Kazakhstan’s legislature approved a draft law in February restricting children’s right to access information. The law bans information “promoting non-traditional sexual orientation”, among other things. Those who disseminate prohibited information to children will be liable to administrative sanctions. Kyrgyzstan’s parliament is considering a similar anti-gay “propaganda” law, which imposes criminal and administrative sanctions for disseminating any information that depicts “non-traditional sexual relations” in a “positive way”.

    Last year in Uganda, a draft new law imposing criminal sanctions for the promotion of “unnatural sexual practices” was leaked. The proposed law provides that anyone “promoting” homosexuality will be liable to be sentenced to seven years’ imprisonment. It could also be used to shut down LGBTQI rights organisations. As of now it is unclear when the bill is due to be discussed. We have previously reported on anti-homosexuality laws in Kenya, Gambia and Uganda, which have often been defended as “protecting children”.

    CRIN has compiled a list of proposed and passed laws that attempt to censor information relating to LGBTQI matters on the ground of “protecting children from information deemed harmful to their health and development”. See the complete list. For more information on what you can do to protect children from censorship, visit our ‘Get involved’ campaign page.

    Rights of LGBTQI children

    Bodily integrity of intersex children

    In January a US court dismissed a lawsuit against state officials and doctors in South Carolina who were responsible for performing medically unnecessary gender “normalising” surgery on a child in foster care. The child, who was born intersex, underwent surgery as a 16 month old to remove his phallus, leaving him with female genitalia though he identifies as male. The parents initiated legal action alleging that the sex assignment surgery violated the child’s constitutional right to due process. The Court of Appeals for the Fourth Circuit, however, held that the defendants were not liable as the law did not give them sufficient notice that their actions could violate the child’s rights, allowing the defendants a “qualified immunity”. Although this decision precludes liability at the federal constitutional level, a claim in the state courts has been allowed to proceed to trial.

    Last month Malta became the first country in the world to ban gender “normalising” surgery on intersex children before they are able to give or refuse consent to the procedure. Section 15 of the new Gender Identity, Gender Expression and Sex Characteristics Act makes it unlawful for a medical professional to conduct  any sex reassignment treatment, including surgical intervention, on a minor if the procedure can be deferred until they can provide informed consent. The Act also strengthens non-discrimination provisions for transgender people, including by granting every person the right to have their gender changed in the records of the Public Register. Parents can apply on behalf of their children to have the record of their child’s gender identity changed. In such cases the court reviewing the application must ensure that the best interests of the child are the paramount consideration and that, as far as practicable, due weight is given to the views of the child, having regard to their age and maturity.

    Legal recognition of trans and intersex children

    The situation of intersex children has also improved in Kenya, where the High Court delivered a landmark decision recognising the rights of intersex children last December. The Court ordered that a birth certificate be issued to a five-year-old child born intersex and asked the attorney-general to designate a body which will collect data about intersex people in the country. Read CRIN’s case summary.

    In India, a law aiming to protect the rights of transgender peoplepassed by the Upper House of Parliament in April is a step in the right direction, but leaves more to be desired, according to commentators. Although the Rights of Transgender Persons Bill 2014 provides for transgender children’s access to education, it does not address some of the most serious obstacles - bullying and harassment of transgender children in schools. Furthermore, the Bill fails to provide for the legal recognition of a third gender, as ordered by the Indian Supreme Court in a decision delivered a year ago. The bill is now awaiting approval by the Lower House.

    Lawmakers in Uganda have also failed to recognise a third gender in the recently passed Registration of Persons Act. The law requires a person to be registered as either male or female and does not provide for registration as an intersex person, despite the fact that a provision allowing the registered sex of a child to be changed already exists in the Births and Deaths Registration Act. Members of Parliament refused to make a provision for gender non-conforming people on the ground that it would encourage homosexuality.

    A law passed in February banning child marriage in Malawi severely prejudices the rights of LGBTQI people in the country, a global rights group has warned. The Marriage, Divorce and Family Relations Law, which raises the minimum age for marriage from 16 to 18 for girls, defines all marriages, unions and cohabitation arrangements as between a man and a woman and a person’s sex or gender as the one assigned at birth, thus not recognising transgender or intersex persons. Jessica Stern, executive director of the International Gay and Lesbian Human Rights Commission said in a statement: “It’s appalling that a law that attempts to address a serious human rights abuse like child and forced marriage would then also target Malawians for discrimination based on sexual orientation or gender identity. It’s unacceptable to try to prevent one existing wrong and in the process create another abuse in the form of legal discrimination against LGBT [and intersex] individuals”.

    Ireland’s Gender Recognition Bill has attracted substantial criticism from human rights advocates. The Bill requires 16 and 17 year olds to get a court order to obtain legal recognition of their gender and entirely excludes children under the age of 16.

    Discrimination against trans children in schools and institutions

    In the United States, a 16-year-old transgender child filed a federal lawsuit against the state government last October over her mistreatment in a Connecticut detention centre for delinquent boys, where she is currently held. The claim alleges that she has been held in solitary confinement, called by her male name and male pronouns, and forced to have the physical appearance of a boy.

    In April a settlement was reached in a federal lawsuit brought on behalf of a transgender teen girl against the South Carolina Department of Motor Vehicles (DMV). The 16-year-old girl, who is legally male, had applied for her driving licence, but DMV employees had refused to take her photograph and allegedly told her to “go home” and “take off the make up”. The Transgender Legal Defence and Education Fund brought legal action alleging that the treatment amounted to sex discrimination and violated her constitutional right to freedom of speech and expression. Following the terms of the settlement, the DMV has agreed to change its policy to allow applicants to be photographed as they appear regularly, and will provide training for its employees on professional treatment of transgender and gender non-conforming persons.

    A 14-year-old boy has initiated legal action against four Michigan school districts alleging discrimination against him because he is transgender. The boy claims that the schools not only failed to protect him from bullying, but also “outed” him without his consent by revealing that he was born a girl. He was told by the schools to use the girls’ bathrooms and referred to by his given name at birth. According to the boy’s lawyer, this is the first case brought against schools over bullying where the complainant is a transgender child. The school districts have filed a motion to dismiss the case, however a statement of interest by the US Department of Justice says that the case should be allowed to proceed.

    There are a growing number of cases and legislative developments across the United States and Canada concerning discrimination against transgender children and their access to bathrooms at school. These include a court settlement in Maine in favour of a transgender girl who was made to use the staff toilets at school; a legal action filed in the Supreme Court of British Columbia challenging a school policy that prevents students from using the bathroom of their choice; and discrimination complaints filed with the Alberta and Manitoba Human Rights Commissions. Several US states have attempted to enact legislation criminalising the use of bathrooms by persons of the “wrong” gender, including Florida and Kentucky. Four so-called “bathroom bills” remain pending in Texas.

    Discrimination against homosexual children

    In Colombia, a school headmaster and psychologist are facing possible criminal charges over their treatment of a 16-year-old gay student who committed suicide. The school had allegedly issued disciplinary action against the boy for kissing his boyfriend, defined by the school as an “obscene” act, and banned him from returning to class until he had finalised his “treatment” from a psychologist. The prosecutor’s office says these measures could amount to “acts of discrimination on the basis of sexual orientation”, as the school does not subject hetereosexual student couples to the same procedures.

    In the United States, two bills - one in the California Senate and one to be introduced in the US Congress - propose to regulate the operation of private centres for “troubled teens”. In addition to evidence of serious children’s rights violations in these centres, including deaths, it is believed that many are covertly conducting gay “conversion therapy” on minors, which is illegal in California and New Jersey. Read about the national campaign to Protect Youths from Institutional Abuse. Other states are taking steps to outlaw conversion therapy. In Oregon, a bill which would prohibit such therapy from being conducted on all children under 18 has been approved by the House and will now proceed to the Senate. A similar bill in Iowa was approved by the Senate and remitted to the House. In response to a petition asking for a law to ban conversion therapy for minors, the US government has issued a statement condemning the practice and pledging to support action to ban it nationally.

    In January South Africa’s Law Reform Commission defended its proposal to extend to gay children the right to get married as “straightforward and uncontroversial”. Currently heterosexual boys under the age of 18 and girls under 15 can marry in exceptional circumstances if they obtain the consent of a parent or legal guardian and the Minister of Home Affairs. Sex discrimination regarding the minimum age has yet to be challenged. The Commission notes that excluding homosexual children from entering into a civil union is unconstitutional, discriminatory, and violates gay children’s right to dignity. According to commissioner Irvin Lawrence, the proposal would stop differential treatment applying to heterosexual and homosexual minors, “ensur[ing] the benefits of equal protection under the law."

    Discrimination against children of LGBTI parents

    Access to education

    A school principal in Spain will stand trial for refusing to enrol a child because his parents are gay. In the boy’s application to the privately-run school in Seville, his parents indicated they were a same-sex couple, and were subsequently informed that no more places were available. But the couple became suspicious when other families told them that the school was admitting new students. When they reapplied without mentioning their family situation, the admissions office accepted the application. The presiding judges in the case said there is preliminary evidence to suggest that "the refusal to enrol the [child] was due to his parents’ sexual [orientation]".

    In Australia, Tasmania’s Anti-Discrimination Commissioner has spoken out against a proposed law pending before the state’s legislature that may allow some schools to refuse to admit students for religious reasons. Under the Anti-Discrimination Amendment Bill, faith-based schools would be entitled to give preference to applicants who have religious beliefs, affiliations or activities consistent with those of the school. However, LGBTQI rights activists fear that if the Bill becomes law, it could be used as a licence to discriminate against gay and transgender children or children of same-sex couples.

    Birth registration and parental recognition

    Last September Brazil became the first Latin American nation to allow three parents to be included on a child’s birth certificate, in a case involving a girl with two mothers and a father. In the words of the presiding judge, “it is important to note that this girl will have, from birth, the unusual record of a multi-parental family… the decision is entirely natural and was taken without controversy”. Argentina followed suit in April, with the government of the province of Buenos Aires also allowing three parents to be included on their child’s birth certificate.

    In the United States, a legal challenge to Utah’s laws that only allow husbands to be automatically entered on a child’s birth certificate has been filed by a woman who wants to be granted the same automatic parental recognition with respect to the biological child of her wife. The woman has described the step-parent adoption process currently required under state law as “expensive, invasive and time-consuming”. The suit argues that the differential treatment between a man and a woman whose spouse has given birth violates the constitutional right to equal protection by the law.

    In Israel, the attorney-general issued a legal opinion in a family court case in February, stating that the partner of a biological mother of a child can be recognised as a parent by means of a court order, as opposed to a lengthier adoption procedure. The case involves a request by a woman seeking recognition as the second mother of her partner’s biological child.


    There have been mixed decisions and developments concerning adoption of children by LGBTQI parents. In Colombia, the Constitutional Court has refused to grant same-sex persons the right to adopt a child in cases where the child has no biological link to the prospective parents. The ruling made this month, which confirmed a previous decision by the same court, holds that adoption by a homosexual person is only allowed for those applying to adopt their same-sex partner’s biological child. Although the adoption application in this case was granted in relation to a child conceived through in vitro fertilisation by one of the applicants, the Court clarified that this is the only circumstance in which adoptions will be allowed. A statement by the national organisation Colombia Diversa strongly criticised the decision as constitutionally unsound and “contradictory because it says that [same-sex persons] are good biological parents but bad adoptive parents”.

    In February a court in Taiwan denied a woman’s application to adopt the children that she parents with her same-sex partner, referring to the negative impact such an adoption would have on the two children. Step-parent adoption is not allowed if the applicant is not married to the child’s biological parent, and same-sex marriages are illegal. The case argued that the two women were in a de facto marriage, however the court refused to accept this, noting the lack of consensus on legalising same-sex marriages in the country. The couple are planning to appeal the decision.

    In the United States, while a new law removing a 1977 ban on same-sex adoption awaits the Governor of Florida’s approval, another bill has been passed which would prevent the revocation of licences of private adoption agencies for refusing to allow same-sex couples to adopt. Bill 7111, currently before the Senate, is said to protect those organisations whose religious beliefs do not accept that children can be raised by a same-sex couple. However, a statement by the American Civil Liberties Union points out that these agencies, which are in receipt of public funds, should be required to consider the best interests of the children only, and not their own religious beliefs. Another bill which would allow adoption agencies to discriminate against LGBTQI persons may soon be adopted in Texas. It is reported that there are over 20 anti-LGBTQI bills under consideration in the state.

    The new Family Code in Slovenia, which permits same-sex couples to adopt children on equal terms with opposite-sex couples, is endangered by a campaign seeking to hold a referendum over the changes. A 2012 referendum invalidated similar amendments to the Family Code, including the right to adopt the biological child of one’s partner, by a narrow margin. To date more than 80,000 signatures, two times the required minimum, have been collected in support of another referendum, but since 2013 the country no longer allows referenda concerning human rights matters. It now rests with the Constitutional Court to determine whether the referendum will be allowed or not.

    Meanwhile El Salvador is planning to amend its Constitution to completely ban same-sex adoption and marriage. The changes need to be accepted by a two-thirds majority during the 2015-2018 legislative session in order to become final.

    However, there has been some progress towards recognition of LGBTQI parents and their children in other countries. An appeals court in France, where same-sex adoption is legal but access to medically assisted fertilisation is granted only to heterosexual couples, allowed a woman to adopt the biological child of her partner who conceived through artificial insemination conducted abroad. Although most adoption procedures in such circumstances conclude unimpeded, in some cases the authorities refuse to allow the adoption where it circumvents the State’s ban on assisted reproduction for same-sex couples.

    In Finland, a law allowing same-sex marriage and adoption passed by parliament last year came into force in March. Although the initial draft excluded such provisions, a national campaign led to the review of the bill after collecting 167,000 signatures, more than three times the required minimum. Support for the new law by the head of the Finnish Lutheran Church, however, led to a mass resignation by church members.

    In Ireland, where a referendum on same-sex marriage is due to be held later this month, the Senate has approved amendments to the Children and Family Relationships Bill which would allow same-sex and cohabiting couples to adopt children with a 20-2 majority. The Bill now needs to be signed into law by the President.

    In Australia, the state of Victoria will be reviewing its Adoption Act with a view to legalising joint adoption by same-sex couples. Currently same-sex couples in the state can be foster parents, but cannot apply to adopt a child, nor can one person apply to adopt the biological child of their same-sex partner. See more information on the legal provisions for same-sex families in all Australian states and territories.

    Finally, there are some important constitutional cases on same-sex adoption pending before the courts. All 15 judges of the Constitutional Court of the Czech Republic will be considering a challenge to a law that prohibits adoption by persons in a registered same-sex partnership. The case originates from an action for judicial review filed at the Prague City Court following a refusal by the authorities to allow the adoption application of a man who lives with his male partner.

    Italy’s Constitutional Court will be deciding whether to recognise the foreign adoption of two children by a same-sex couple. The women obtained adoption orders for each other’s biological child in the United States. While the Italian woman’s son was granted Italian citizenship through his mother, the American woman’s child currently only has the same rights as her foreign biological mother. The juvenile court in Bologna referred the matter to the Constitutional Court seeking a clarification on Italy’s 1983 law on international adoption. Same-sex adoption is illegal in the country, however Italian courts have increased legal recognition of children of LGBTQI persons. Last year a court in Rome allowed for the first time the stepchild adoption by a woman in a same-sex couple. And earlier this year a court in Turin recognised the legal status of a child born to a same-sex couple.

    Parental leave and contact

    In March a South African labour court ruled that allowing women to take maternity leave but not men constitutes discrimination. The case was brought by a man in a same-sex relationship whose employers had refused his request for maternity leave, which is four months in duration, and informed him that he was only entitled to four days of family responsibility leave. The court’s decision explains that the rationale behind legislative provisions on maternity leave is not only related to the health of the mother who has recently given birth, but also the best interests of the child, which must be given paramount importance under South Africa’s Children’s Act. In this case, the court held that there was no reason to deny the applicant maternity leave.

    In Israel, the judicial ombudsman refused to act on a complaint relating to a case in which a rabbinical court issued an injunction prohibiting a woman from introducing her children to her female partner. The ombudsman cited a lack of authority to intervene in the rabbinical court’s work, though his opinion stated that the child protection justifications invoked by the rabbis are unacceptable, premature and without any legal basis.

    Legal resources

    To find out more on the state of LGBTQI rights in 49 European countries, see ILGA-Europe’s Rainbow Europe website, which includes a country ranking and details about the legal provisions on anti-discrimination, family recognition, gender recognition, asylum, freedom of expression and assembly, and protection from hate crime.

    The Council of Europe’s recent publication "Case law of the European Court of Human Rights relating to discrimination on grounds of sexual orientation or gender identity" includes summaries of cases decided by the Strasbourg Court relating to the rights of LGBTQ persons.

    For information about laws relating to same-sex adoption, marriage, gender recognition, conversion therapy and other topics globally, visit the Equaldex website, a collaborative LGBTQI knowledge database.

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    Last Word:

    “To say that this Act is a groundbreaking human rights milestone is almost an understatement. It provides an inspirational benchmark for other European countries that need to improve their own LGBTI equality standards. The Act is a beacon of hope - and bears testament to the political leadership and hard work of the LGBTI movement in Malta.” - Paulo Côrte-Real, Co-Chair of ILGA-Europe’s Executive Board, regarding recently enacted legislation in Malta protecting the rights of intersex and transgender persons.

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