August 21, 2015
To whom it may concern,

I am writing as the lead organiser of the ‘Law & Equality in the Modern Day’ legal lecture series that took place in January of this year. The lectures were organised entirely by the students of the Truman Bodden Law School Student Society with the support and guidance of Dr Leonardo Raznovich, and focused on LGBT and gender rights in the Cayman Islands, a subject that has peaked in the public interest in recent weeks.

The launch of the three part series was welcomed by members of the faculty of the Law School, members of the Government and the Judiciary of the Cayman Islands. The series was also enthusiastically received by the legal and wider community, with many law firms and local businesses showing support.

It has, however, been suggested by a (high profile) minority that the focus of this lecture series may have been misplaced. I believe that in the defense of real and meaningful education, the notion that any aspect ‘Law & Equality in the Modern Day’ was misplaced must be strongly refuted.

The aim of the lecture series was to give the students an opportunity to engage with the community, and to complement our studies, bringing classroom learning into the context of pertinent, real world issues. Recent statements have served as proof that LGBT rights and gender equality are indeed ‘Legal Matters that Matter’ in the Cayman Islands.

The choice of topic does not indicate a lack of guidance. On the contrary, it was very prescient of the Student Society to have anticipated issues that the Cayman Islands are now facing as a result of the recent ECtHR’s decision, requiring member states to offer more legal protection to same sex couples, omnisciently foreshadowed by Professor Robert Wintemute’s first lecture.

Furthermore, the series prompted a mature public debate about lesbian, gay, bisexual and transgender rights in the Cayman Islands, and thanks to those people who attended and have now spoken out, taking these issues forward, I am optimistic that the Student Society has pioneered lasting change.

In brief, there is now a genuine public debate, and any suggestion that such an initiative should be discouraged must be fervently denied in the interests of freedom of expression and academic inquiry.

Law is widely regarded as a mutable reflection of social attitudes. It has long been an instrument of progression in society, as highlighted by Dr Leonardo Raznovich in the final lecture, ‘From burning at the stake to being welcomed in the Church.’ The year 2015 has since seen many relevant legal decisions, such as the landmark US Supreme Court judgment in Obergefell v. Hodges and the approval by plebicite of a constitutional amendment in Ireland, both allowing the recognition of gay marriage in the respective countries. It is evident that the issue of LGBT rights is an entirely appropriate topic for a legal lecture series. Particularly so, in a jurisdiction such as the Cayman Islands, where the law is in lack of human rights protection for LGBT people.

Fellow students, and indeed anyone who believes in education beyond the classroom, should reject any further criticism of the lectures.

Yours sincerely,

_____________________________

Olivia Connolly

President of the TBLS Student Society
+44 7894351209
[email protected]

Lecture 1, 15th January 2015:
Grand Court 1, George Town, Grand Cayman

For further information or enquiries please contact: Olivia Connolly
[email protected]

Professor Robert Wintemute Lecture Law and Equality in the Modern Day

Professor Robert Wintemute, King’s College London

Thank you very much. It is very flattering to have such a large audience for the first of this lecture and this important series. I thought I would start with a personal introduction; my first visit to Grand Cayman was in April 1970 for Easter holidays, from Calgary. And I was 12 years old, and I loved Seven Mile Beach but there was something brewing inside me. I was starting to realise that I was attracted to other boys, not girls. Now, Canada, the criminal law had just been cFriday, 21 August
2015hanged in 1969, and I suppose that was an important step. But I can’t say that it made me feel good to be gay back then. So what followed my first visit to Grand Cayman was nine years of suffering – feeling bad about myself, thinking, let’s see, I’ll go to university and when I graduate I’ll pay a psychiatrist to cure me. So it was quite bleak for a while. But in 1979 in my first year as a law student I came out, accepted myself as gay, joined the gay community in Montreal and have had a much, much happier life ever since.

And I suppose the point I’m trying to make is that the issues that will be addressed
this evening and the next few lectures concern the lives of real people. I would make a conservative estimate that 2% of the population of the Cayman Islands is lesbian and gay and possibly interested in a long-term relationship with a same sex partner. So we’re talking about one in 50 people. Now, if you take an extended family, you have a family reunion at the beach, we could easily have 50 people, you might have one lesbian or gay person there. If you think of your 50 closest friends, within that group there might be one lesbian or gay member. You won’t necessarily know it but they’re there, and they may be suffering in silence, as I was. So I think that’s the thing to remember, that we’re not talking about abstract homosexuals out there who are a threat to society; you’re talking about your family members and your friends.

And it’s discrimination, legal and social against them that causes them to suffer. So what this lecture series aims to do is to start a discussion in the Cayman Islands which we hope will lead to law reforms that will make life easier for lesbian and gay people in the Cayman Islands. Now, I always ask, does everybody have my handout? That’s my usual. So you can follow along. The handout tends to serve as the footnotes, so for the lawyers in the room who want to go off and read the legal decision later, you’ve got a reference and you can follow up. Now, the governor of the Cayman Islands, Helen Kilpatrick, will be giving the next lecture, focusing especially on gender equality. So I thought I would make a link at the start of my lecture.

Just one footnote for her lecture, if she will allow me, is that the European Court of Human Rights has very strong case law on sex discrimination. I’ve only listed one case here but it’s one from 2012, Konstantin Markin v Russia; it was a case where Russia was providing paid parental leave only to women in the armed forces and not to men, so only to mothers, not to fathers. The case went to the Grand Chamber of 17 judges of the court and they found discrimination based on sex or gender, violating the European Convention on Human Rights. Now the principle of that judgement applies to the Cayman Islands, as I will explain in a bit more detail.

So, there are probably lots or a number of laws that say in the Cayman Islands that involve sex discrimination that is not permitted by the European Convention of Human Rights. But that will be the topic for the next lecture. So what is the link between gender equality and LGBT equality? I had argued in an article published in the Modern Law Review in London in 1997 that in effect, they were just examples of the same phenomenon. I suppose what we tend to associate with the concept of sex discrimination is discrimination affecting most heterosexual women. So if we have a rule, let’s say, only men can be doctors, only women can be nurses, we recognise that as sex discrimination. But if we have rules against, used to be no lesbians and gays in the armed forces, etc, or you can dismiss a transgender person, that poses a problem for the legal system.

Now, I’ve argued in two articles – I didn’t give up – in 1997 and 2003, that correctly analysed, it is sex discrimination, and this makes a difference when you’re in a territory where the law prohibits sex discrimination but does not mention sexual orientation or gender identity. And I’m still convinced as of today that the argument is correct, but unfortunately it has not proved popular with judges. They find it a bit too complex, too clever, too threatening in terms of its implications, so it has generally been rejected. It was rejected by the Court of Justice of the European Union in 1998
in the Grant case, and by the House of Lords in the UK, which is now the UK Supreme Court, in 2003, in the McDonnell case. So what the courts have said to LGBT people is, sorry, you cannot use existing law against sex discrimination – you have to get your own law. So this has meant political campaigns to have laws amended so that they specifically mention sexual orientation or gender identity.

So that’s the world we’re in, so LGBT people campaign around the concepts of SOGI for short – Sexual Orientation and Gender Identity. Next I would like to mention the steps that are necessary to achieve LGBT equality and I’ve set them out in the order in which they are usually taken. Now, I was… actually, the very first time I thought
about this sequence of the form and talk about it publicly was actually on the 21st of

December 2005 at Chelsea Town Hall in London. Two friends of mine, two men, were having their civil partnership ceremony. They were among the first couples to have a civil partnership. And it’s actually not the town hall. It was afterwards at the reception, they asked me to speak. And I was just reflecting on the fact that in 1860 these two men could’ve been sentenced to death for the crime of buggery. And, let’s see, 145 years later, we were celebrating their love for each other at the town hall.

And this is the legal and social progression that we’re seeing in more and more countries around the world. From the death penalty to full legal equality, from a response of kill them to let’s celebrate their love. And what’s causing difficulties at the moment is that we have countries across the entire spectrum on this… at every point on this spectrum of progression. So we have full, legal equality in a small
number of countries; we also still have the death penalty in at least five countries. And we have about 40% of United Nations member states with criminal laws and that figure rises to about 80% of commonwealth countries. So Cayman Islands doesn’t have to look far for bad examples in the neighbourhood because of the 12
independent English-speaking countries in the Caribbean, 11 have criminal laws – all but the Bahamas. So these countries include Jamaica, Barbados and Trinidad.

I gave lectures at the University of the West Indies, the three law schools, in February last year. And I must say, it was hugely liberating to prepare this lecture and not have to talk about a criminal law, which is a major obstacle. Right, so you see on the bottom of page one and onto page two, the 11 steps. So that penalty fortunately disappeared in 1861 but then it was 106 years until the decriminalisation. In between you have Oscar Wilde sentenced to two years in prison, etc. And then with the decriminalisation, the age of consent was set at 21 in England and Wales, versus 16 for other sexual activity between men. It took until the year 2000 until that was equalised at 16 for all. In 2003 the Sexual Offences Act 2003 tidied up the law and removed all remaining discrimination, including repealing the criminal offences of buggery and gross indecency, which had been listed as unnatural offences in the Sexual Offences Act 1956.

So the criminal law was tidied up, all discrimination removed and I suppose here I can explain roughly three… if I can reduce the 11 steps to three, one is reducing the idea that the lesbian and gay individual is a criminal, a social outcast, a threat to society, etc. The middle step is accepting the lesbian and gay individual and their right to live openly and to talk about their sexual orientation casually in the workplace, to say, so what did you do this weekend? Oh, my girlfriend and I, a woman says, we went to the beach and we had a nice time. So that’s what the middle step tends to be, and that requires laws prohibiting discrimination in employment, housing, education, essential services, etc. So you’ll see this started for England and Wales with European Union Directive that was passed in 2000 on prohibiting discrimination in employment and higher education.

That was implemented in the UK in 2003 and it’s now part of the Equality Act 2010. We’re now at the top of page two. That protection was extended to access to goods and services, all forms of education, housing, etc, by regulations in 2007, which were not required by the European Union, so the UK was going beyond the EU minimum, and also part of the Equality Act 2010 as well. So step one, decriminalisation, and that’s a big step one with sub-steps. Middle step is accepting the right of the
individual to live openly without fear of discrimination. And part third or final stage is family law, recognising that lesbian and gay individuals are not simply individuals; they, like other human beings, fall in love with other people. They want to form long- term couple relationships and in some instances to adopt children or have children through assisted reproduction. So these are the issues that have been addressed by the law in England and Wales in the last, let’s say, 12 years or so.

So, the first issue that arises is what about rights that are not linked to marriage. So it’s common in many countries – and I’ve come across some examples in Cayman Islands – where a couple living together as husband and wife as if they were married but they are not legally married may be recognised for certain purposes, may have certain rights. So those rights were extended to same sex couples in England and Wales. The next step was providing a means to acquire all of the rights of a married couple, and this was through the Civil Partnership Act in 2004.

You could think about the Civil Partnership Act as a political compromise because on the one hand there was a concern that same sex couples were treated badly, they
might get a Survivor’s Pension, they might not have certain inheritance rights, etc, yet the government did not want to call it marriage, wanted to avoid a difficult discussion with the Church of England and other religious organisations. So, civil partnership was a compromise. But in fact, for some people, some people are delighted that civil partnership was created. I actually know a couple in London – a man and a woman – who do not want to get married, and they’ve just started a case in the high court in December, arguing that they should be allowed to have a civil partnership as a different sex couple. The law at the moment is that same sex couples have two choices in England and Wales; they can marry or have a civil partnership. Different sex couples, only one.

I would argue that is clear discrimination. But my point is that although some people saw the civil partnership as inferior, others see it as liberating because they want to be in a legally-recognised relationship but they don’t want to be associated with the history of marriage and the treatment of women historically within marriage, etc.
They want… they’re delighted to have marriage without the name, so you get two completely different points of view on this. So the Civil Partnership Act is the compromise; just before that you had the Adoption of Children Act 2002, which allowed same sex couples to adopt each other’s children and to adopt a child jointly. This reform was brought into force in December 2005 at the same time as the Civil Partnership Act.

And I remember the political debate at the time; I remember seeing a government minister on television as she insisted that this had nothing to do with lesbian and gay human rights – the Adoption of Children Act. And actually the government policy at the time was to increase the pool of… increase the size of the pool of potential adoptive parents. So it was argued that it’s in the best interest of children to be adopted, especially children who are less popular, so to speak, because they’re three, four, five, or six years old, etc. There’s no real hope of them going back to their birth parents. The options are foster care, lack of stability, state institutions, so the government wanted more people adopting children so they changed the law so that in England and Wales and unmarried couple could propose to adopt jointly, different sex or same sex.

So significant in England and Wales, the parental rights issues were all dealt with before the question of marriage, whereas in some countries they’re dealt with at the same time and even in a few, you get marriage first and adoption later. So in 2008 we had the Human Fertilisation and Embryology Act which equalised rights with regard to donor insemination and surrogacy. So a lesbian couple having donor insemination is now treated in the same way as a different sex couple. So the female partner of the woman who gives birth is recognised as the second legal parent of the child. And similarly with surrogacy – surrogacy’s a controversial question, whether it should be permitted at all – the UK’s position is to discourage it at home but recognise the reality that it takes place abroad.

So when couples return to the UK from India or California or wherever they’ve gone with their children, there’s a procedure which allows them to apply for a parental order, and the court recognises the parents who arranged for this child to be born to be considered the legal parents of the child. Now, that procedure is open to any couple – different sex, same sex, married, in a civil partnership, merely living together. And perhaps the most famous same sex couple to have used that procedure is Sir Elton John and his partner David Furnish, who have had two sons in California. So, having dealt with all these parental rights issues, in 2013 it was really a question of the name.
A same sex couple could get all the rights associated with marriage, all the obligations as well, through a civil partnership but it was not the name marriage; that was being withheld.

And many argued that there would never be full, legal equality if same sex couples could not marry. The analogy is made with separate but equal racial discrimination in the US – the famous case of Brown v Board of Education, 1954. The state government argued that potentially the black school is just as good as the white school – the building is just as good, the quality of the teachers, everything is the same, so therefore no discrimination. And the US Supreme Court said, no – separate is inherently unequal. So it is essential for all couples, regardless of sexual orientation, have the same choices when they go to the town hall. So that’s the 11
steps that are usually taken to go from death penalty to full legal equality with regard to lesbian, gay and bisexual persons.

Gender identity is a bit more complex and I have limited time so I’ve only mentioned two important steps. One is, well, transgender people are often more visible, more exposed to violence, more likely to suffer discrimination in employment, etc. So we had the case of P v S and Cornwall County Council in 1996, where a transgender woman told her employer that she would be taking medical leave to undergo gender reassignment surgery. And the employer said essentially, don’t bother coming back. So she was dismissed because she was having a gender reassignment. And the way she looked at it, she said, well, I was an acceptable employee as a man but if I come
to work as a woman, then I’m dismissed, so this must be sex discrimination. She put that argument to the Court of Justice at the European Union, and they agreed. So actually under European Union law, transgender issues are analysed as gender issues or issues of sex discrimination.

The other important decision was in 2002: Christine Goodwin v United Kingdom in the European Court of Human Rights. The court lost patience with the UK, which had failed to change the law after repeated warnings that this had to be kept under review, etc. So finally the court found that the UK must change the legal sex on a transgendered person’s birth certificate after gender reassignment and must allow
them to marry a person of the sex opposite to their reassigned sex.

Now, there’s an important paragraph in that judgement paragraph, 98, which deals with what’s known as the procreation argument, which used to be accepted by courts in the US. I don’t think it’s succeeding much anymore, but that marriage is about procreation, therefore, if a couple does not have the biological capacity to produce a child without any assistance from a third party, they can justifiably be excluded from marriage. And the court said very simply, the European Convention on Human Rights protects the right to marry and the right to found a family and these are separate rights. One is not a condition of the other. And if you stop to think about it, different sex couples, when they decide to get married, are not asked to undergo a fertility test; they’re not asked to come back in five years and show the state the child they’ve produced, otherwise their marriage certificate would be revoked. So that argument was rejected in the Christine Goodwin case.

Right, so, those are the steps in moving to legal equality; now, next question is, how does the European Convention on Human Rights affect the Cayman Islands? Now, as a visitor I don’t know how much time people have spent talking about the European Convention on Human Rights – on the beach, in the supermarket, etc. My fear is it may be almost never, and possibly the average person has no idea that it lies there. I’m a professor of human rights so I spend a lot of time thinking about the European Convention. I have lots of little copies in my office, so I should have brought some tonight. They’re pocket-size so you can put it in a breast pocket and carry it around
with you to protect you against human rights violations. Pull it out and read your rights to the police or whatever.

But it is a unique feature of the… with the status of the Cayman Islands, the political legal status, is that the European Convention on Human Rights applies here. Now, you may think this is strange; we’re a long way from Europe. But you could say the sun never sets on the European Convention on Human Rights; it applies in French
Polynesia and Tahiti, so if we did the complete map we’d probably find that it applies in every time zone in the world, just about. This is because the 47 member states of the Council of Europe are allowed to extend the protections of the convention to their overseas territories, which the United Kingdom has done with respect to especially its Caribbean territories. So the convention does apply to the Cayman Islands and I checked the court’s website and found this letter, which you’ll see at the top of page three.

The government of the United Kingdom hereby accepts on a permanent basis the confidence of the court regarding the Cayman Islands. Okay. So it’s official. So, what we’re going to do next is look at what the European Convention on Human Rights requires and then ask whether the Cayman Islands are fulfilling all of the obligations under the European Convention or do we have a situation of ongoing violations of the convention? Now, the European Convention on Human Rights, convention just means agreement. It’s an international treaty and it sets up a court – the European Court of Human Rights – based in Strasbourg in eastern France, right next to the Rhine River across from Germany, historically very symbolic because it symbolises reconciliation between France and Germany. That’s why it’s located there.

Just a little footnote here; when I first flew from Miami to Grand Cayman in 1970, it was with Lacsa, the airline of Costa Rica, which used to fly San Jose, Grand Cayman, Miami. And the Inter-American Court of Human Rights is located in San Jose, Costa Rica. So in terms of rights it might theoretically be more convenient to fly to Costa Rica, but no. It’s the European Convention that applies, so if you do plan to take a case, maybe Frankfurt. You can look into various airports if and when you get a hearing in court. Okay, so the court interprets the convention, its judgements are binding. Technically the judgement only applies in the short term to the country against which the judgement is made, but in the long term the principle will be
applied to every country.

The United Kingdom government has been very good about reading all of the judgements of the court and when there’s legislation in the UK or an overseas territory that is contrary to the convention, action is taken to end the violation. Okay, so what does the convention require? Well, the death penalty has been abolished, protocol number 13, so no need to worry about that in the Cayman Islands or any British territory. Number two: private consensual adult, same sex sexual activity may not be criminalised. This principle was established in 1981 in a case in Northern Ireland. The law had been changed in England and Wales and Scotland but not Northern Ireland. It was the first international decision of its kind and has been cited around the world ever since. The court then built on that initial decision in two cases regarding the age of consent, which I mentioned was unequal.

The first, Sutherland v the United Kingdom, was decided by the European Commission of Human Rights. Before 1998 there was a two-tier system; European Commission would screen cases for the court. In the Sutherland case the European Commission agreed that there was a discrimination violating the European Convention and the UK government agreed in effect to settle the case. Well, they agreed to suspend the case, and legislation was introduced in Parliament. Because of the opposition of the House of Lords, it took a long time to get through but it was finally passed in 2000. So the court did not rule on the principle in that case but they did in 2003 in a case against Austria. Another judgement, ADT v the United Kingdom, dealt with a discriminatory rule, the definition of in private, back in 1967. There was a great fear that gay men would have a lot of group sexual activity. And so it was written into the act of Parliament that no more than two persons may take part or be present. Now, when this rule reached the European Court of Human Rights, I don’t think they could understand the rationale for it whatsoever. Violation. And the rule was removed in 2003 for the UK but not the Cayman Islands, as we will see in a minute.

So, next, point five, what about discrimination against individuals in employment? There were two judgements in September 1999. Smith and Grady, one of them, the court found that the ban on lesbian and gay, bisexual members of the armed forces was contrary to the European Convention. That was my favourite moment in the history of the UK’s compliance with the European convention because the policy was suspended that very day and was formally removed four months later.

So that was an example of swift compliance. So around the same time we had a decision on a gay father in Portugal. He was denied custody; he lost custody of his daughter because of his sexual orientation. So his former wife that appealed… well, after kidnapping the child she appealed to a higher court in Portugal who said, yes, his sexual orientation would be a bad influence on the child, therefore she should get custody. That was found to violate the convention. EB v France, an openly lesbian woman, applies to… for preliminary approval as a potential adoptive parent in France. She was rejected – violation of the European Convention in the EB v France case 2008.

Alekseyev v Russia: the city of Moscow refused to allow a lesbian and gay pride parade in 2006 and they’ve refused ever since and they’ve rejected applications for the next 100 years. They’re saying there will never, ever be a lesbian and gay pride parade in Moscow. I’m staying at the Marriot and the woman who checked me in yesterday is from Russia. And she said she’s deeply ashamed by this but I can say the

Cayman Islands is better than Russia. Okay, so same sex couples, I mentioned that same sex couples must have the rights of unmarried different sex couples. This was established in the case of Karner v Austria, a classic case. This kind of case has arisen in many countries, related to the HIV epidemic. So one man is the tenant of an apartment or a house and he dies of AIDS. What happened in Austria was that his surviving partner was not on the lease and the landlord sought to evict him and succeeded. So he lost his home.

Whereas, if he would have been a person of the opposite sex, not married to the tenant, he would’ve had a legal right to stay. And the court of human rights found discrimination violating the convention. And that principle has been applied consistently since then, in Schalk and Kopf v Austria in 2010, the court said that same sex couples enjoy family life under Article 8 of the European Convention, which is important because the convention protects your private life and your family life. For many years the court, again, the European Commission of Human Rights, said same sex couples have private life but not family life. Finally in 2010 they said, no, you have family life as well. So I wanted to put on the disco anthem We Are Family. Yes, so that was quite an important development.

Okay, so now we’re getting into the really sensitive areas, okay, treating unmarried couples equally is not such a sensitive issue for the court because it’s a voluntary decision to recognise any unmarried couple. Some countries do not. So if you decide to recognise unmarried couples, the European Court of Human Rights says you cannot discriminate – you must treat all the same, different sex and same sex. What
about giving all of the rights of married couples to same sex couples? Does there have to be a civil partnership law? Does the European Convention require that? Well, that issue came up in Schalk and Kopf v Austria and the vote was four to three, so four judges said, not necessary to decide because Austria had just passed a registered partnership law for same sex couples.

Three judges said, yes there is an obligation and Austria should have passed its law sooner than it did. Okay, so that’s an open issue in the court and there are two pending cases against Italy. One involves a couple, one man from Italy, one from New
Zealand, where the man from New Zealand is denied a residence permit as a family member. And they were actually forced to leave Italy and move to the Netherlands, and that case is pending. I’m actually the lawyer for the couple. And so in that case they’re arguing that there is an obligation in certain situations to grant rights that have been limited to married different sex couples. And then there’s a whole series of cases, Oliari and Orlandi, which are about the absence of any kind of civil partnership law in Italy.

Okay, now turning to adoption and assisted reproduction, the court’s case law is now clear. It all depends on whether or not these possibilities are made available to unmarried different sex couples. If they are, same sex must follow that as well. X and
others v Austria. If they’re not, then same sex may be excluded. So that was the Gas and Dubois v France case. France has since changed the law; they allow same sex couples to marry and adopt each other’s children. But what France has refused to do so far is to give lesbian couples access to donor insemination in France. So at the moment it’s a crime for a doctor in France to inseminate a woman who does not have a male partner. She must go to Belgium, Spain or the UK. So she gets pregnant outside of France, comes back to France, gives birth. She can marry her female partner and adopt the child and the child ends up with two legal mothers. But under no circumstances is France going to tolerate the concept of a lesbian woman being inseminated in France.

Okay, well, it just so happens that unmarried different sex couples qualify for donor insemination in France. So this is a potential case in the European Court of Human Rights. And as for the big issue – access to marriage – which you hear news about all the time from the USA, with regard to the issue, the European Court of Human Rights has quite a clear approach, which differs from the US Supreme Court. The US Supreme Court occasionally will strike down a law, even if it’s found in the majority of states. I can think of two examples; one was Roe v Wade on abortion. You had 46 states that did not comply with the principles of Roe v Wade. Another was Texas v Johnson on burning the US flag. Apparently at the time 49 states made it a crime to burn the US flag in public. And the court struck all of them down, so occasionally it does do that. On the other hand, if you look at Brown v Board of Education, Loving v Virginia, on different race marriage, Lawrence v Texas on same sex criminalising
same sex sexual activity, in all those cases you had a minority of states that were affected by the decision.

So the US position is in flux and could be resolved by June this year. The Supreme Court could say, marriage in all 50 states. It’s possible. In Europe that definitely will not happen; the European Court of Human Rights takes into account European consensus in deciding what the minimum standard should be under the convention.

So when they decided Schalk and Kopf v Austria in 2010, there were only six European countries out of 47 that allowed same sex couples to marry. Now, there was simply no way the European Court of Human Rights was going to order 41 countries to change their marriage laws. Okay, so I actually urged Schalk and Kopf not to take their case at all because… I wrote to their advisor saying, you’re going to lose and you might set a bad precedent. As it turns out, there were some silver linings in the judgement which I have mentioned. But they definitely lost and everyone who brings this issue will lose for the foreseeable future until there is a substantial clear majority of countries that allow same sex couples to marry. So the count at the moment is 12 –
47. Ireland is likely to be number 13; they’re going to have a referendum on same sex marriage in the spring. But 12 is well short of a majority so it will be at least, I would say, probably 10 years before the court gets to that issue.

Okay, so we’ve seen what the European Convention on Human Rights requires. It requires a lot but it does not require access to marriage and it does not require access to rights that are restricted to married different sex couples, especially adoption and assisted reproduction. But that’s not the end of the story. We are now on top of page four. Because in between the Grand Court of the Cayman Islands and the European Court of Human Rights is the United Kingdom Privy Council, which is able to set higher standards than the European Court of Human Rights. They generally would not set a lower standard but it can set a higher one. Remember, the European Court of Human Rights is interpreting a convention for 800 million people living in 47 countries. The UK Privy Council or the UK Supreme Court interprets only for the UK, the UK Privy Council in particular for overseas territories, etc.

So they don’t have to worry so much about the implications of their decision; if they think it’s right for the UK, they can go ahead and take it. So we have a good example of this setting a higher standard than the European Court of Human Rights, which is the case of Rodriguez v Minister of Housing, the case from Gibraltar, which is very relevant to the situation in the Cayman Islands. So what happened was that in public sector housing, in Gibraltar they had a rule that to get a joint tenancy you had to be either a married different sex couple or an unmarried different sex couple with a child in common. Now, remember, joint tenancies are important because if only one partner is on the lease and they die, the other can be evicted, so it’s a protection for the other partner in the couple. Now, a same sex couple cannot have a child in common; it’s genetically impossible, so they don’t qualify under that branch. And they’re not allowed to marry in Gibraltar. They weren’t at the time. So they were excluded. Now, the Privy Council had a debate about whether this was direct or indirect discrimination, but essentially the conclusion was that Gibraltar could not simply say the rule is you have to be married and tough luck for you because we don’t allow you to marry. In effect they had to create an exemption to allow a same sex couple to qualify for the joint tenancy. And that’s the conclusion you see in bold there.

But they also went out of their way to say that this did not oblige Gibraltar to introduce civil partnerships. Now, that was 2009. I think today what this decision means, that if you take certain specific important rights attached to marriage and point out that in the Cayman Islands they’re not available to same sex couples, the Privy Council might be very sympathetic and adopt the same reasoning as the Gibraltar case. If you went and said, and there’s no civil partnership law in the Cayman Islands at the moment, that could go either way. That would be extending the case law. And with regard to adoption there was a case where again the… this time it was the House of Lords, now the Supreme Court, who went ahead of the European Court of Human Rights.

You had an unmarried different sex couple in Northern Ireland, a woman with a child, a male partner. She wanted her male partner to be able to adopt the child and become the second legal parent. Northern Ireland opted not to permit it. They had to be married. And the House of Lords found discrimination contrary to the European convention. And in a subsequent case that has been extended to same sex couples. So to have the full picture you need to take into account decisions of the UK Privy Council and the UK Supreme Court. Even though the UK Supreme Court is a different jurisdiction, it’s applying different legislation, they are the same judges. And their reasoning with regard to a discrimination issue in a Supreme Court case will carry over. I should say it’s very likely that it will carry over to a Privy Council case.

Okay, time to discuss reforms. Let me speed up. Okay, we have our 11-point checklist. Well, we can say death penalty, done in the Cayman Islands. Something we don’t need to worry about. Number two, done as well, but not – this is bottom of page four – the Caribbean territories’ criminal law order 2000, which you find attached. I couldn’t find this document on the internet but a civil servant from the Foreign Office sent me a copy in 2001, I believe. I managed to find it in my paper file. So you see, it says, at the Court of Buckingham Palace, 13th of December, 2000, so this order has, let’s say, pluses and minuses. The plus is that it decriminalised – it removed the criminal law – in the British Caribbean territories immediately and removed the violation of the European Convention on Human Rights. But it did so without any public debate. So it was not an act of the Cayman Islands Legislature, etc.

So perhaps we wouldn’t have so much silence today if there had been a debate back then; on the other hand, for the United Kingdom government, it was seen as intolerable to have this criminal law in place in territories for which the UK is responsible before the European Court of Human Rights. Okay, so only two of our 11 items on the checklist, so we’re now on page five. I’ve got a list here. To sum it up, it says, required reforms, action needed. The Cayman Islands law is over 14 years behind the case law of the European Court of Human Rights. The order back in 2000 didn’t deal with the question of an equal age of consent and it maintained the rule about no more than two persons. And these are both clearly contrary to the European Convention under judgements of the court. What about discrimination by public authority? So the European Convention applies mainly to public authorities, and that means all branches of government, public universities, etc, public schools. So discrimination is not permitted but ideally protection should be extended to the
private sector.

There should be clear legislation because, let’s say you’re dismissed. Let’s say you work for a bank in the Cayman Islands, you’re openly gay or lesbian and you’re dismissed and you have no protection under Cayman Islands law. You could bring a case against the United Kingdom government in the European Court of Human Rights, complaining about the absence of legal protection. So yes, the fact that the
convention applies initially only to public authorities doesn’t mean that discrimination in the private sector is not potentially covered by the convention. But I’ve actually given the Cayman Islands benefit of the doubt; I put it under the desirable reforms.
I’ll come back to that.

Okay, but anyways, let me say, I would call this a package of proposals. Number one is to remove all discrimination from the criminal law. Number two is amend the anti- discrimination law to include sexual orientation and gender identity; make it clear that there’s protection in the public sector and the private sector. Number three: as a first step towards recognising same sex couples, make a change to the immigration law so that a same sex partner can be sponsored for a residence and work permit. Now, this is… one reason to do this is because the United Kingdom Privy Council would probably require it, if a case is brought at some point. And also it’s a very good place to start because the cruellest form of discrimination against a same sex couple is to tell them they can’t live together in the same territory. They are potentially separated by immigration law. So this is actually where the UK started – the very first legal recognition of same sex couples in the UK was in 1997 in the immigration rules. So I think it makes sense for the Cayman Islands to start there as well.

Now, I’ve got two desirable reforms. I’ve explained these as ensuring that the Cayman Islands remain a modern, welcoming, diversity-respecting offshore banking centre. So the anti-discrimination protection, technically I can’t point to any judgement of the European Court of Human Rights or the UK Privy Council at the
moment that requires it. But it would be a very good idea. There’s a Supreme Court of Canada judgement that requires it in Canada, and if you look at, for example, Gibraltar and Guernsey, they both have anti-discrimination laws of this kind. And these laws are important because if you don’t have them, you have an anomaly. So there are places in the world – there are states in the US – where you can now get married but you have no protection against discrimination.

So you can go to work and announce to everyone, we’re getting married, and they can say, wonderful, you’re fired. And you have no protection. So you really need both. So the desirable reforms to consider would be the… I think I’ve mixed my required and desirable together. Anyways, it’s, sorry, this is a tricky line of the legal versus the political. So some things are required by the European Convention, some are not strictly required but politically would be very beneficial to the Cayman Islands. So the anti-discrimination law and a civil partnership law, perhaps after initially starting with the immigration reform.

And I would point out that the civil partnership law for the moment is not required but that could change in the future. In the Council of Europe, 24 out of 47 countries now have some kind of registered partnership law for same sex couples. So as that number grows, there will come a point, perhaps in the case against Italy, where the European Court of Human Rights will say, you must have one. And if it says that for the 47 countries in Europe, that will apply to British overseas territories as well.

And lastly, in terms of models in other offshore banking centres, the Isle of Man, Jersey and Gibraltar have all introduced civil partnership in the last few years. It’s
been discussed in Guernsey. So I wouldn’t necessarily say that tomorrow Cayman Islands have to jump into civil partnership but I think the topic really should be lesbian and gay human rights, freedom from discrimination, which laws discriminate. The pressing immediate priority is criminal law and absence of protection against discrimination, immigration and other rights that are particularly important. But once those reforms have been introduced and the public is more used to the idea of treating lesbian and gay people in the Cayman Islands equally, then it might be a good time to talk about a civil partnership law.

And yes, I’ve spoken slightly longer than I intended to but I hope everything’s clear and I look forward to your questions and comments. Thank you.

END
See also iNews Cayman related story today “Discrimination, homophobia, privilege and hate speech in Cayman Islands Legislative Assembly”