Category: Gender

European Court of Justice Grants Asylum Rights to Persecuted Homosexuals

Countries that criminally prosecute homosexual behavior have received a ruling from the European Court of Justice that the European Union will protect individuals fleeing from those countries. A ruling concerning homosexual nationals from Sierra Leone, Uganda, and Senegal have reassured any individual fearful of prosecution because of his/her sexual orientation can seek asylum in the European Union.

The European Court of Justice’s ruling  explained that Directive 2004/83/ECwhich maintains the minimum standards for a person to be considered a refugee and references the Geneva Convention, applies to any homosexual who is persecuted in his/her country. The Directive states a refugee is a person 

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The Netherland’s Supreme Court requested  that the European Court of Justice give a preliminary ruling to clarify whether homosexuals were included in the definition of the phrase “membership of a particular social group.”  The Netherland’s Supreme Court also requested that the European Court of Justice clarify which type of appeal might fall within a receiving host government’s classification of a person as a refugee. 

 The Court’s ruling sets out that a person’s sexual orientation is a trait that is fundamental to the identity of an individual and no one should be required to renounce such an important part of himself/herself.  Explaining that since these criminal statutes target homosexual behavior this supports a finding that homosexuals form a separate group within the definition of a refugee from the Directive

The Court next explained that being a part of that group alone does not secure refugee status if the persecuting country has laws against homosexual behavior without a showing of a serious violation of a human right. Essentially warning potential applicants that not all violations of a right of a homosexual can reach the threshold to be granted asylum in the European Union. Specifically, the press release from the European Court of Justice states

the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of the directive. However, a term of imprisonment which accompanies a legislative provision which punishes homosexual acts may constitute an act of persecution per se.

This ruling clarifies the policy in the European Union for granting and denying asylum for any homosexual from his/her country while also ensuring that all of the Member States follow these basic standards.


EU Responds To Racism Aimed At Italian Official

When Italy’s Integration Minister, Cecile Kyenge, was appointed back in April of 2013, her nomination was tarred by distasteful comments and racist attacks by unknown critics. Kyenge, an eye doctor and Italian citizen originally from the Democratic Republic of Congo, is Italy’s first Black minister. This past summer, Kyenge continued to be on the receiving end of racist jibes but this time it came from Italian politicians stemming from Italy’s rightwing members known as the Northern League Regionalist Party. In July, Roberto Calderoli, the League’s deputy speaker in the upper house of Parliament, sparked horror when he said the 48-year-old minister had “the features of an orangutan”. Calderoli was stiffly reprimanded for his comments by Prime Minister Enrico Letta, but as of today he remains in his position in the senate. Calderoli’s comments led Joëlle Milquet, the Deputy Prime Minister of Belgium, to suggest the recent meeting accompanied by seventeen European Union representatives to sign the recent “Declaration of Rome” which took place on September 23rd.  The purpose of the meeting was to provide a robust response not only to Kyenge’s trials but also to those of racism sufferers throughout Europe. The recent “Roman declaration” is not only Europe’s response to the attacks and insults directed at Kyenge since her appointment but it also serves to remind Europe of its founding values. The participating European Union representatives signed the declaration condemning racism and urging greater action to promote diversity across the Union.

Fallon Fox: Transgender MMA Fighter Goes Public

MMA stands for mixed martial arts, which is a blend of fighting styles and skills. Recently Fallon Fox went public as the first transgender fighter in the MMA.

Fox was born a man, became a woman through hormone treatment and gender reassignment surgery and then began her training in mixed martial arts. After winning her first two fights, Fox revealed her story to Sports Illustrated on the heels of an investigation into her surgery. In regards to her statements acknowledging that she was born a man, Fallon stated, “It’s just some people, some of society doesn’t get it yet. And this is what we are trying to do now is to inform people and let them know about transgender athletes.” Additionally when asked if there was an advantage for a woman born a man when fighting another woman, Fox stated, “There are no unfair competitive advantages.”

While the MMA allows participation of transgender fighters after completion of two years of hormone therapy, Fox knows that some fans and other fighters will attempt to dismiss her success because she was born in a male body. She argues that she has erased any advantage she had from being born in a male body by participating in ten years of hormone therapy and gender reassignment surgery.

In addition to the MMA, other professional sports organizations do not discriminate against transgender athletes. Through her gender change, Fox would currently be allowed to participate in the Olympic games as a woman. The International Olympic Committee (IOC) policy requires that transgender athletes undergo hormone therapy long enough to remove gender-related advantages. Other professional sports organizations that Fox would currently be allowed to compete in include the Women’s Tennis Association (WTA) and the Ladies Professional Golf Association (LPGA).

Fox plans on continuing to fight and since MMA is a sport that does not discriminate against transgender athletes, there will likely continue to be critics who believe she has an unfair competitive advantage even after the treatments she has undergone.

Former President Clinton, the DOMA, and the Future of Gay Marriage

On March 7, 2013, former President Bill Clinton wrote an editorial in The Washington Post arguing that the Supreme Court should overturn the Defense of Marriage Act (DOMA). In 1996, both houses of Congress passed the DOMA by large bipartisan majorities. President Clinton signed the Act mainly to neutralize a political movement in favor of a constitutional amendment banning gay marriage. Specifically, the DOMA defines marriage as a union between one man and one woman for all federal purposes and relieves states from recognizing any such union though recognized by another state. Even though the DOMA is still on the books, President Obama has told the Justice Department not to enforce it. Currently, same-sex marriage is legal in nine states and the District of Columbia. However, same-sex couples across the country are denied federal benefits and programs because their relationships are not recognized under the DOMA.

The DOMA will come before the Supreme Court on March 27. The purpose of Clinton’s editorial is to explain why the Court should overturn the law. In the editorial, Clinton notes that he has come to believe that the DOMA is contrary to the principles of freedom, equality, and justice, and that the law is “incompatible with our Constitution.” Interestingly, this is the second time Clinton has disavowed a landmark anti-gay legislative measure that he signed into law.  In 2010, Clinton stated publicly that he regretted signing the controversial “Don’t Ask Don’t Tell” (DADT) policy, a federal law mandating the discharge of any U.S. armed service member who was openly lesbian, gay, or bisexual. DADT was repealed in 2011.

Despite Clinton’s editorial and other opposition to the DOMA, it remains unclear how the Court will rule. Some commentators have prematurely proclaimed that the DOMA is doomed. However, in a recent interview, Justice Anthony Kennedy, the perennial swing vote on the Court, suggested that the Court should not issue controlling opinions on hot-button political issues. He explained, “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.” This statement certainly increases the possibility that the Court may not overturn the DOMA.

The Royal Baby Bill May Have Not-So-Royal Implications for the Canadian Constitution

British Prime Minister David Cameron set in motion a change to the 300 year-old rules governing heirs to the throne by proposing a bill (hereinafter the Royal Bill) to modify the Royal line of Succession. The modification would eliminate the preference for men over women as heirs to the throne. As the rule currently exists, a female heir may only take the throne if she does not have any brothers – older or younger. However, in October 2011 at the Commonwealth Heads of Government meeting, all 16 countries agreed to modify the centuries-old succession rules.

While all 16 Commonwealth countries have provided written agreements to modernize the rules, each country is still subject to its own legislative procedures. However, this has presented some legal issues for passage in the Canadian Commonwealth. Under Canadian jurisprudence, as quoted by CBC News, the 1701 Act of Settlement is “part of the laws of Canada” and the rules of succession are “by [necessity] incorporated into the Constitution of Canada.” The Canadian Constitution requires that an amendment regarding “the office of the Queen” can only be made when the House, the Senate, and the legislative assembly of each province agree.

This constitutional provision raises several interesting questions.  Does this bill concern the office of the Queen? Or is it just concerning the succession to the throne? One argument proposed by Saskatchewan, as reported by CBC News, claims the Canadian Constitution is only defining the monarch as the monarch of England – whoever that may be. Under this view, the only change that would require unanimous provincial support would be changing this definition. On the other hand, some argue that if the provinces allow the government to “overlook their constitutional right to weigh in on this matter” they may be fundamentally limiting their constitutional right to weigh in on future issues. Any attempt to amend the rules of succession without provincial support may prompt a judicial challenge to the limits of the young Canadian Constitution (patriated in 1982).

However, any delay in passage by one or more Commonwealth Countries will not delay the effective date of the bill.  Any change to the rules of succession will apply to any baby born after the October 11, 2011 agreement. Once passed, the effects of the Royal Bill will be imposed on the unborn child of Prince William and Catherine, Duchess of Cambridge. As a result, if William and Kate have a little girl, their daughter cannot subsequently be bypassed in line as heir to throne if they later have a son.



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