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Gender Identity and Expression in International Human Rights Law

Nazhat Shameem Khan

Ambassador of Fiji to Switzerland and Permanent Representative of Fiji to the United Nations and other Organisations in Geneva

A Paper presented at the Attorney-General’s Conference 2014

 

1. Introduction

The right not to be discriminated against on the basis of gender identity and expression, in the 2013 Constitution, is not specifically derived from international human rights conventions. However, the international courts have been able in the last 10 years to interpret other rights to include the right to gender identity and expression. In particular the European Court of Human Rights has in recent years, interpreted the Article on the right to privacy and a family life (Article 8) to include the right to gender expression and gender choice. This has not always been so. In the 1980’s and 1990’s, the same Court found no breaches of the Convention, in particular of the right to register as a person who had changed sex and of the right to marry, in the case of a transgender female to male applicant who wanted the sex change registered formally, and wanted to marry as a male.[1] In 1992, the European Court showed signs of change in B. v. France (application no. 13343/87) in relation to the right of a transsexual to register the change of sex under French civil law, and found a breach of the right to respect for a private and family life. That change was cemented in Christine Goodwin v. the United Kingdom[2] when the Court found that the State had violated Goodwin’s right to respect for a private and family life in terms of her right to social security, right to employment, right to a pension and the right to marry. Subsequently, there have been many decisions in international law, which have acknowledged and enforced the rights of all persons to gender identity and expression. What does this mean to the ordinary Fijian? This means that the rights of the transgender community to be transgender, and to express that sexuality, is protected. Any unfair discrimination against the community and its individual members, constitutes a breach of section 26 of the Constitution, for which the courts may order remedies.

2. The evolution of gender identity in human rights law

The first human rights instruments and conventions, said nothing specifically about either sexual orientation or gender identity. The ICCPR[3] in its preamble states;

“Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that these rights derive from the inherent dignity of the human person,

Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,

Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant”.

Article 2 specifically deals with, inter alia, sex discrimination in the following way;

“1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.”

Article 26 provides;

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

The word “sex” has for many years, been interpreted by treaty bodies and international tribunals, to include the right to determine one’s own sexuality. In Toonen v. Australia[4], the Human Rights Committee considered a complaint made by a gay rights activist that the criminal code of Tasmania was a breach of the right of all persons not to be discriminated against on the basis of “sex”. The complaint was made under the Optional Protocol procedure of the ICCPR. Australia is a signatory to the Optional Protocol. The facts of the case were that the applicant was an activist for the promotion of the rights of homosexuals in Tasmania, one of Australia's six constitutive states. He challenged two provisions of the Tasmanian Criminal Code, namely Sections 122(a) and (c) and 123, which criminalized various forms of sexual contacts between men, including all forms of sexual contacts between consenting adult homosexual men in private. The complaint alleged that these sections of the Tasmanian Criminal Code allowed Tasmanian police officers to investigate intimate aspects of the applicant’s private life and to detain him, if they had reason to believe that he was involved in sexual activities which contravened these sections. He said that the Director of Public Prosecutions had announced, in August 1988, that proceedings pursuant to Sections 122(a), (c) and 123 would be initiated if there was sufficient evidence of the commission of a crime. Although in practice the Tasmanian police had not charged anyone either with "unnatural sexual intercourse" or "intercourse against nature" (Section 122) nor with "indecent practice between male persons" (Section 123) for several years, the applicant argued that because of his long-term relationship with another man, his active lobbying of Tasmanian politicians and the reports about his activities in the local media, and because of his activities as a gay rights activist and gay HIV/AIDS worker, his private life and his liberty were threatened by the continued existence of Sections 122(a), (c) and 123 of the Criminal Code.

The complaint was also that some politicians in Australia had made hate speeches against the homosexual community, one such speech alleging that you were more likely to be murdered by a homosexual than a heterosexual, and that the Tasmanian law failed to distinguish between sexual activities in private and in public. The Australian Federal Government conceded that the Tasmanian legal position was inconsistent with national policy on sexual orientation and did not deny that the criminal code in Tasmania failed to satisfy the proportionality[5] test in international human rights law. The Government also conceded that the Tasmanian position was contrary to HIV law policy in Australia generally, but asked whether sexual orientation was included in the words “or other status” in Article 26 of the ICCPR.

The Committee found as follows;

“8.2 Inasmuch as article 17 is concerned, it is undisputed that adult consensual sexual activity in private is covered by the concept of "privacy", and that Mr. Toonen is actually and currently affected by the continued existence of the Tasmanian laws. The Committee considers that Sections 122(a), (c) and 123 of the Tasmanian Criminal Code "interfere" with the author's privacy, even if these provisions have not been enforced for a decade. In this context, it notes that the policy of the Department of Public Prosecutions not to initiate criminal proceedings in respect of private homosexual conduct does not amount to a guarantee that no actions will be brought against homosexuals in the future, particularly in the light of undisputed statements of the Director of Public Prosecutions of Tasmania in 1988 and those of members of the Tasmanian Parliament. The continued existence of the challenged provisions therefore continuously and directly "interferes" with the author's privacy.

8.3 The prohibition against private homosexual behaviour is provided for by law, namely, Sections 122 and 123 of the Tasmanian Criminal Code. As to whether it may be deemed arbitrary, the Committee recalls that pursuant to its General Comment 16[32] on article 17, the "introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances".(4) The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

8.4 While the State party acknowledges that the impugned provisions constitute an arbitrary interference with Mr. Toonen's privacy, the Tasmanian authorities submit that the challenged laws are justified on public health and moral grounds, as they are intended in part to prevent the spread of HIV/AIDS in Tasmania, and because, in the absence of specific limitation clauses in article 17, moral issues must be deemed a matter for domestic decision.

8.5 As far as the public health argument of the Tasmanian authorities is concerned, the Committee notes that the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV. The Australian Government observes that statutes criminalizing homosexual activity tend to impede public health programmes "by driving underground many of the people at the risk of infection". Criminalization of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Secondly, the Committee notes that no link has been shown between the continued criminalization of homosexual activity and the effective control of the spread of the HIV/AIDS virus.

8.6 The Committee cannot accept either that for the purposes of article 17 of the Covenant, moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee's scrutiny a potentially large number of statutes interfering with privacy. It further notes that with the exception of Tasmania, all laws criminalizing homosexuality have been repealed throughout Australia and that, even in Tasmania, it is apparent that there is no consensus as to whether Sections 122 and 123 should not also be repealed. Considering further that these provisions are not currently enforced, which implies that they are not deemed essential to the protection of morals in Tasmania, the Committee concludes that the provisions do not meet the "reasonableness" test in the circumstances of the case, and that they arbitrarily interfere with Mr. Toonen's right under article 17, paragraph 1.

8.7 The State party has sought the Committee's guidance as to whether sexual orientation may be considered an "other status" for the purposes of article 26. The same issue could arise under article 2, paragraph 1, of the Covenant. The Committee confines itself to noting, however, that in its view the reference to "sex" in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation.

9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant.” (My emphasis)

Of course, the wide interpretation of the word “sex” was not necessary in Fiji under the 1997 Constitution. Section 38 specifically referred to sexual orientation as a prohibited ground for discrimination, and it was section 38 as well as the right of privacy which were the basis of Mr Justice Winter’s decision in Nadan and McCosker v State[6]. Importantly, section 43 of the 1997 Constitution permitted the judiciary to interpret the Bill of Rights in accordance with public international law (where relevant). Section 7 of the 2013 Constitution has a similar provision. In McCosker, the appellant was an Australian national who travelled to Fiji in 2005, met Nadan, a Fijian national, and lived with him as his partner. At the end of his vacation, he reported to the police that Nadan has stolen money from him. He then checked in to fly out of Fiji to return to Australia. The police interrogated Nadan, and discovered that the two men had been having sexual relations, including anal sex. McCosker was then stopped from leaving the country. He was arrested and a camera was seized from his possession, which had in it, intimate photographs of the two men involved in sexual acts. Both men were charged under the now repealed Penal Code with unnatural offences, and acts of gross indecency between men. They were both sentenced to two years imprisonment each. They appealed against convictions and sentences. The appeal included the Office of the Attorney-General and the Human Rights Commission as amicus. The arguments of counsel presented an interesting tapestry of the different moral, legal and public interest considerations at play when an issue regarding sexuality goes before the courts. They were as follows;

“The appellants’ case is that Sections 175(a) and (c) and 177 of the Fijian Penal Code are invalid as they breach the constitutionally guaranteed, and in this instance unlimited, rights of privacy, equality and freedom from degrading treatment. Accordingly counsel submits that it was inappropriate and unlawful for the learned Magistrate to accept jurisdiction and pass sentence.

In addition the second appellant argues that his guilty plea was equivocal. He says the police assured him that crimes of this sort in Fiji between consenting male partners were inevitably dealt with by a fine and that he would not be sent to jail. Acting on this inducement the appellant refused legal representation and entered a guilty plea. This plea of convenience was designed to spare him further embarrassment and quickly see him on his way home.

The appellants submit in any event that the sentence was harsh and manifestly excessive.

The appellants seek an order for damages.

The Director of Public Prosecutions while accepting the authority and wisdom of these constitutional rights submits that they are limited, in Fiji, on public interest and moral grounds.

Inspired by the Christian preamble to the Constitution counsel claims that, in such a religious and conservative State, homosexuality is abhorrent and can be criminalized by imposing proportional limits on a citizen's rights to privacy and equality.

Counsel further submits that Section 175(a) and (c) are not discriminatory as they are gender and sexual orientation neutral. In addition he submits that Section 175 does not discriminate against sexual orientation or preference but rather proscribes certain sexual acts against the order of nature.

Counsel is concerned that if Sections 175(a) and (c) and Section 177 are struck out in total then there will be no way the State can prosecute any crime of non-consensual carnal knowledge against the order of nature or gross male indecency. Striking down either provision will, he says, fetter prosecutorial discretion.

He therefore submits the sections are constitutionally valid.

The State concedes the sentence offends the ‘one transaction rule’ but otherwise submits the judgment is unremarkable and the term of imprisonment acceptable.

The Attorney-General submits that the constitutional provisions are subject to limitations in the public interest. Counsel submits that a particularly Fijian interpretation of these internationally recognized human rights is required. In that regard counsel supports the morals based argument raised by the Director of Public Prosecutions and claims that the rights to equality and privacy are validly limited by the impugned sections.

The Human Rights Commission supports the appellants’ case. Dr Shameem submitted that Sections 175(a) and (c) and 177 were invalid immediately after the 1997 Constitution commenced and must be struck down as unconstitutional. The Dr submitted that the sections breach the appellant's rights to privacy and equality before the law. Further counsel says there is no proper reason to limit these rights. The Human Rights Commission then submitted that this was really a case of prosecution for the wrong offence. The Human Rights Commissioner urges the authorities to consider prosecution of these two appellants for trafficking in pornography.”

What simplified these proceedings were that the court did not have to stretch the word “sex” in section 38 of the 1997 Constitution to include sexual orientation, since the words sexual orientation were already included in section 38, and that the court was able to use the interpretation of privacy rights in international law, to interpret the rights of persons to a private sexual life. In the result, Winter J. found that the Penal Code breached the appellants’ rights of privacy and equality. However, before he got there, he dealt decisively with the State’s “moral” argument that as a conservative country, homosexuality was unacceptable. He said in his judgment;

“There is no doubt that the Fijian Constitution is framed by religion. The preamble emphasizes the enduring influence of Christianity and its contribution, along with that of other faiths, to the spiritual life of Fiji. Article 5 acknowledges that the worship and reverence of God are the source of good Government and leadership. The preambular principles while recalling and emphasizing the Christian conversion of these Islands as an historical fact nonetheless reaffirms for the future the human rights and fundamental freedoms of all individuals and groups safeguarded by adherence to the rule of law and respect for human dignity. These principles are reflected in the compact provisions of the constitution. Article 6(a), (c) and (e) recognize that the conduct of Government is based on respect for the equal rights of individuals, communities and groups. These principles are non-justiciable (Article 7). It is also important to note that while Christianity underpins much of value in Fiji we are a secular State influenced by Christianity but not predominated by it. The Constitution recognizes the influence of many faiths and beliefs. That is simply a reflection of the rich multi-cultural heritage of this nation. I reject the State contention that the Constitution of Fiji is pillared upon Christian values alone.

The Constitution is the supreme law of the State (Article 2(1)). Any law inconsistent with the Constitution is invalid to the extent of that inconsistency (Article 2(2)).

Fiji has a Bill of Rights entrenched in Chapter 4 of the Constitution. The chapter binds the legislative executive and judicial branches of Government at all levels (Article 21(1)(a)). All laws made and administrative or judicial action taken after the commencement of the Constitution are subject to the rights described (Article 21(3)) as are laws in force at the commencement of the Constitution (Article 21(5)).

In accordance with the transitional provisions contained in Article 195(2) all written laws in force on the date immediately prior to the commencement of the Constitution are presumed not to be in conflict with the Constitution at the date of their enactment or in excess of the powers of the Parliament which enacted them. They enjoy no such presumption after the Constitution commences. These pre-constitutional laws are still valid but fall to be examined under Article 195(3) as to whether or not they are inconsistent with the provisions of the Constitution. If inconsistent they are legally assumed to have such modifications and qualifications as are necessary to bring them into conformity with the Constitution (cf The State (Sheerin) v Kennedy [1966] I.R. 379 at p.386 per Walsh J; Frazer v State Services Commission [1984] I NZLR 116 at 121 and State v Pickering [2001] FJ HC 69).

I find that Sections 175 and 177 of the Penal Code were valid and continued in force as enacted at the commencement of the 1997 Constitution. However, the sections are to be construed from the commencement of the Constitution with such modifications and qualifications as are necessary to bring them into conformity with the Constitution. In other words Sections 175 and 177 of the Penal Code if they do not conform or are inconsistent with the Constitution are invalid to the extent of that inconsistency (Articles (2); 21(5) and 195).

Article 43(2) of the Constitution requires me to have regard to public international law as an interpretative aid for the rights set out in Chapter 4. I have no hesitation in adopting this principle as it has been endorsed on several occasions by this Court (cf State v Mark Mutch [1999] FJHC 149 HAC0008 of 1998; State v Audie Pickering, Misc. Action No. HAM0007 of 2001S; State v Timoci Silatolu & Attorney General [intervena] and Fijian Human Rights Commission [intervena, by leave], Criminal Action No. HAC0001.2001).

The rights provisions to be examined must not be construed in isolation but in a context which includes the history and background of the adoption of the Constitution, other provisions of the Constitution itself and in particular with regard to ratified conventions (cf Dower v Attorney General [1992] LRC (Const) 623 at 668 and Minister of State for Immigration and Ethnic Affairs v Teoh [1995] 128 ALR at page 353.”

In the result Winter J found that;

 

  1. That the Penal Code provisions on unnatural act and acts of gross indecency between men to be inconsistent with the rights to equality and privacy of homosexual men;
  2. That the sections of the Penal Code were rendered inoperable and were invalid;
  3. That the convictions and sentences were quashed accordingly.

 

In summary the judge said;

“In the event that adults engage in consensual sexual acts against the order of nature in private and are prosecuted under Section 175(a) and (c) of the Penal Code applying general Constitutional principles, the relevant sections of the Penal Code are invalid and the prosecutions a nullity.

Invalidity in this context does not mean that the offending sections in the Penal Code ceased to exist rather they are simply rendered inoperative to the extent of the inconsistency. Accordingly the sections dealing with carnal knowledge against the order of nature and acts of gross indecency will still apply to sexual conduct between adults and adult males where sexual activity occurs in public or without consent or involves parties under the age of 18 years.”

This case, together with Audie Pickering[7], Timoci Silatolu[8], and Eugene Ladpater and Others[9] showcased the willingness of Fiji’s judiciary to apply public international law as an interpretive tool, even where Fiji had not ratified a particular convention (such as the ICCPR or the European Convention on Human Rights) and even though other judges or other judiciaries might have opted to find that a particular international law was “not relevant” to Fiji under section 43(2) of the 1997 Constitution. Much depends on the effective use of the international law in Fiji’s domestic law, by a well informed and enlightened judiciary. Dare I say, by an “activist” judiciary?

I now come to the issue of the rights of the transgender community. Although arguably, and by applying the interpretation of treaty bodies and the European Court at Strasbourg, the word “sex” includes gender identity and expression, such an interpretive tool is unnecessary in Fiji. Section 26 specifically lists gender identity and expression as grounds on which discrimination is prohibited. What does this mean in law?

The jurisprudence from the European Court, which interprets “sex” discrimination as including discrimination on the basis of gender identity and expression, shows a clear shift in approach from 1986 to 2013.In Rees v. the United Kingdom[10] a female-to-male transsexual complained that United Kingdom law did not confer on him a legal status corresponding to his actual condition. The European Court of Human Rights held that there had been no violation of Article 8(right to respect for private and family life) of the European Convention on Human Rights. The changes demanded by the applicant would had involved fundamentally modifying the system for keeping the register of births, which would have had important administrative consequences and imposed new duties on the rest of the population. Furthermore, the Court attached importance to the fact that the United Kingdom had borne the costs of the applicant’s medical treatment. The Court also held that there had been no violation of Article 12(right to marry and found a family) of the Convention. It found that the traditional concept of marriage was based on union between persons of opposite biological sex. States had the power to regulate the right to marry.

In Cossey v. the United Kingdom [11]the Court came to similar conclusions as in Rees v. the United Kingdom. In B. v. France (application no. 13343/87) [12] the Court concluded for the first time that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in a case concerning the recognition of transsexuals. In that case, a male-to-female transsexual complained of the refusal of the French authorities to amend the civil-status register in accordance with her wishes. The Court held that there had been a violation of Article 8(right to respect for private and family life) of the Convention, taking into consideration factors distinguishing the case of B. v. Francefrom Rees v. the United Kingdomand Cossey v. the United Kingdom, particularly the differences between the United Kingdom and the French civil status systems. Whilst there were major obstacles in the United Kingdom preventing birth certificates from being amended, in France these were intended to be updated throughout the life of the person concerned. The Court observed that in France many official documents revealed “a discrepancy between [the] legal sex and [the] apparent sex of a transsexual” (at page 59 of the judgment), which also appeared on social-security documents and payslips. The Court accordingly held that the refusal to amend the civil status register in her regard had placed the applicant “in a daily situation which was not compatible with the respect due to her private life”.

The case marked a departure from the ostrich like approach to gender identity, which the Court had previously adopted. This was specifically set out in the Christine Goodwin[13] case. In that case, the applicant complained of the lack of legal recognition of her changed gender and in particular of her treatment in terms of employment and her social security and pension rights and of her inability to marry. The Court held that there had been a violation of Article 8(right to respect for private and family life) of the Convention, owing to a clear and continuing international trend towards increased social acceptance of transsexuals and towards legal recognition of the new sexual identity of post-operative transsexuals. The court said at page 93 of the judgment that;

“Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, the Court reaches the conclusion that the notion of fair balance inherent in the Convention now tilts decisively in favour of the applicant”.

The Court also held that there had been a violation of Article 12 (right to marry and found a family) of the Convention. It was;

“..Not persuaded that it [could] still be assumed that [the terms of Article 12] must refer to a determination of gender by purely biological criteria” (§ 100). The Court held that it was for the State to determine the conditions and formalities of transsexual marriages but that it “finds no justification for barring the transsexual from enjoying the right to marry under any circumstances.”

Following that case, and that of another in similar terms passed on the same day[14] the United Kingdom passed a law[15] allowing for gender recognition. The new law allowed persons who had undergone a sex change to enter into a civil partnership. They could not marry, because English law did not allow same sex marriage. The law allowed for a statutory basis on which a person could change his or her biological gender, and thereby be recognised by the State in terms of the gender identity of choice.

In 2006, two further cases on transsexual rights were heard by the European court. Each was on the effect of the Act in the context of the Convention rights. In Parry v. the United Kingdom (no. 42971/05) and R. and F. v. the United Kingdom (no. 35748/05)[16] the applicants were respectively married and had children. In each case, one of them underwent gender reassignment surgery and remained with his/her spouse as a married couple. Following the introduction of the Gender Recognition Act 2004, the applicants who had undergone gender reassignment surgery made an application for the issue of a Gender Recognition Certificate, which could not be obtained unless they terminated their marriage. The applicants complained in particular under Articles 8 (right for respect to private and family life) and 12 (right to marry) of the Convention that they had been unable to obtain legal recognition of their acquired gender without terminating their marriage. The Court declared the applications inadmissible(manifestly ill-founded). The applicants were requested to annul their marriage because same-sex marriages were not permitted under English law. The United Kingdom had not failed to give legal recognition to gender re-assignment and the applicants could continue their relationship through a civil partnership which carried almost all the same legal rights and obligations. The Court observed that, when the new system was introduced following the Christine Goodwinjudgment, the legislature was aware of the fact that there were a small number of transsexuals in subsisting marriages but deliberately made no provision for those marriages to continue in the event that one partner made use of the gender recognition procedure. The Court found that it could not be required to make allowances for that small number of marriages. Other recent cases before the Court in Strasbourg include Van Kück v. Germany[17] in which the applicant claimed that a private health insurance company had violated the right to gender identity when it asked the applicant to prove that a gender reassignment operation was “necessary”. The Court found a violation of the right to respect for private and family life, saying that gender identity was one of the most intimate aspects of a person’s private life, and that it appeared disproportionate to require the applicant to prove the medical necessity of the treatment. No fair balance had been struck between the interests of the insurance company on the one hand and the interests of the individual on the other.

An interesting recent decision is Hämäläinen v. Finland[18]. In that case, the applicant was born a male and married a woman in 1996. The couple had a child in 2002. In September 2009 the applicant underwent male-to-female gender reassignment surgery. Although she changed her first names in June 2006, she could not have her identity number changed to indicate her female gender in her official documents unless her wife consented to the marriage being turned into a civil partnership, which she refused to do, or unless the couple divorced. Her request to be registered as female at the local registry office was therefore refused. The applicant complained that she could only obtain full official recognition of her new gender by having her marriage turned into a civil partnership. The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It found that it was not disproportionate to require the conversion of a marriage into a registered partnership as a precondition to legal recognition of an acquired gender as that was a genuine option which provided legal protection for same-sex couples that was almost identical to that of marriage. The minor differences between these two legal concepts were not capable of rendering the current Finnish system deficient from the point of view of the State’s positive obligation under Article 8 of the Convention. In addition, such a conversion would not have any implications for the applicant’s family life as it would not affect the paternity of the applicant’s daughter or the responsibility for the care, custody, or maintenance of the child. The Court further considered that no separate issue arose under Article 12 (right to marry) of the Convention and found that there had been no violation of Article 14 (prohibition of discrimination) taken in conjunction with Articles 8 and 12 of the Convention.

4 .What will this mean in Fiji?

 

 

 

It is clear that although a specific provision for gender identity and expression is not to be found in any of the international conventions, the international law and jurisprudence have interpreted the rights to equality, or to privacy, or to the right to have a family, to recognise and enforce the rights of the transgender, bi-sexual, gay and lesbian (and intersex and queer) persons to choose their gender and to express themselves in accordance with that identity. It is also clear, that with or without that provision in section 26 of our Constitution, the effect of section 7(2) of our Constitution would inevitably lead to a similar reading of the Bill of Rights provisions on equality, privacy and the right to have a family. It is also clear, that international law has been moulded by attitudes around the world in relation to homosexuality and transsexuality. Such is the effect of liberal democracies on the development of human rights law.

What this means for us in Fiji, is that the review of our laws, now becomes necessary to remove from our statutes all laws which discriminate in effect, against the gay or transgender community. Some years ago, when conducting a workshop for the Sexual Minorities Group, I was asked whether a person who was transgender had the right to choose the gender of the police officer who conducted search and seizure. My answer was that the Criminal Procedure Decree required that searches be conducted by a police officer of the same gender as the person being searched. However to my knowledge there are no transgender police officers. In those circumstances, wouldn’t the effect of section 26 be to allow the suspect to choose the gender of the officer conducting the search? If a person has changed his or her gender identity, and now wishes to marry, is that possible under our Marriage Act? Our Marriage Act currently does not allow same sex marriages. But what is the position if a “women” is now a “man” and wishes to marry another woman? Is it not a breach of section 26, and of section 24(1) © of the Constitution to refuse that right to marry? Should our legislature now consider the creation of the institution of a civil partnership for couples who wish to adopt a different gender identity than the identity they were registered under according to Fiji’s laws on births? Would that be a fair way to resolve a possible grievance that transgender individuals are unable, under our Marriage Act, to marry under the gender identity of their choice? In the absence of legislative change, the judicial enforcement of international human rights law on the matter, is almost inevitable. What we do know, is that neither morality, nor religious fervour, nor resource constraints are valid reasons for the removal of the rights and dignity of the lesbian, gay, bi-sexual, and transgender communities.

Geneva, December 2014.

 


[1] Rees v. the United Kingdom

[2] 11 July 2002 (Grand Chamber)

[3] International Covenant on Civil and Political Rights 1966: 1976. Fiji has not ratified this Convention.

[4] Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994). http://www1.umn.edu/humanrts/undocs/html/vws488.htm

[5] The test under the Oakes formula is whether the limitation to a right has been prescribed by a law, whether it is intended to respond to a legitimate social need, whether the limitation is proportionate to the need and whether it is (strictly) justifiable in a democratic society

[6]Criminal Appeal Case Nos.: HAA0085 & 86 OF 2005 between: DHIRENDRA NADAN and THOMAS MCCOSKAR Appellants and: STATE Respondent

[7] Where the High Court found that the Dangerous Drugs Decree provision on mandatory minimum prison terms for persons found in possession of drugs was a breach of the right to be protected from disproportionately severe sentences, per Shameem J.

[8] Where the High Court found that a refusal by the State to provide legal aid to an accused person charged with treason was a breach of the right to equality of arms before the law per Wilson J.

[9] Where the High Court found the prison conditions in the remand centre at Suva prison in 2004 to be in breach of the UN Standard Minimum Rules for the Treatment of Prisoners, per Gates Shameem and Winter JJ

[10] 17 October 1986

[11] 27 September 1990

[12] 25 March 1992

[13] 11th July 2002

[14] I. v. the United Kingdom (no. 25680/94)

[15] Gender Recognition Act 2004

[16]28 November 2006 (decisions on the admissibility of the cases)

[17] 12 June 2003

[18] 16 July 2014 (Grand Chamber)

 

 

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