London, 16 December 2014
On 2 December 2014, the Court of Justice of the European Union issued a preliminary ruling in the joined cases A, B, C v Staatssecretaris van Veiligheid en Justitie, providing guidance on the application of Article 4 of Directive 2004/83 in claims for asylum based on the sexual orientation of the applicants. The Court stated that Article 4 of the Directive, which sets out the conditions for the assessment of facts relating to an asylum claim, must be interpreted in compliance with the applicants’ rights to respect for human dignity and respect for family and private life (Articles 1 and 7 respectively of the Charter of Fundamental Rights of the European Union). Accordingly, the Court ruled, Article 4 precluded methods of assessment which are based only on stereotyped notions associated with homosexuals or include detailed questioning related to the sexual practices of the individual. The Court’s decision is to be welcomed, although the Equal Rights Trust is disappointed that the Court did not preclude all reliance on stereotypes in the assessment of asylum applications based on sexual orientation.
On 7 November 2014, the Court of Appeal of Malaysia in Khamis and Ors v State Government of Negeri Sembilan and Ors held that a law prohibiting Muslim men from cross-dressing was unconstitutional and therefore void. The Equal Rights Trust, noting the importance of the case, prepared a legal brief for the Appellants’ counsel outlining the right to be free from discrimination on grounds of gender identity.
London, 4 August 2014
London, 11 July 2014
On 1 July, the European Court of Human Rights (ECtHR) issued its judgment in S.A.S. v France, in which it considered a French law in force since 2011 which bans the concealment of one’s face in public. The applicant, a Muslim woman who sometimes wears a niqab or burqa in public, complained that the law violated her rights to respect for her private life, freedom of religion and freedom from discrimination, amongst others, under the European Convention on Human Rights and Fundamental Freedoms (ECHR). In a controversial and unwelcome decision, the Court found no violation of Convention rights, holding that the restriction placed on the applicant’s religious freedom and private life by the law could be justified by a desire to guarantee that everyone can “live together” in society.
London, 9 May 2014
On 22 April 2014, the US Supreme Court in Schuette, Attorney General of Michigan v Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary (Bamn) et al, held that an amendment to the Michigan State Constitution which prohibited affirmative action policies that favour people from a minority background was constitutional. The Court, by a six to two majority, held that state voters could choose to prohibit the consideration of race in university admissions policies, amongst other things, without contravening the Equal Protection Clause of the Constitution.
London, 23 April 2014
On 15 April 2014, in a judgment which has been widely praised by equal rights activists around the world, the Supreme Court of India held that recognising only two gender identities (male and female) violated constitutional rights. In National Legal Services Authority v Union of India and others, the Court found that the right to self-identify one's gender, including as “third gender”, was an important part of the constitutional right to live with dignity. Further, the state was required to take affirmative action measures in order to achieve equality for transgender people. The decision – its tone and approach in stark contrast to the Court's recent regressive decision in Suresh Kumar Koushal and another v NAZ Foundation and others – should offer inspiration to courts in the many countries which continue to recognise only a gender binary.
London, 5 February 2014
On 23 January 2014, the European Court of Human Rights (ECtHR), in the case of Montoya v France, found that the provision of a supplementary monetary award to Arab and Berber former auxiliary fighters during the Algerian war, but not those of European origin, was not a violation of the right to non-discrimination under Article 14 of the European Convention on Human Rights and Fundamental Freedoms (the Convention) as the differential treatment of the particular group could be justified.
London, 18 December 2013
On 12 December 2013, the High Court of Australia issued its judgment in The Commonwealth v Australian Capital Territory, a case relating to the status of the Marriage Equality (Same Sex) Act 2013, a regional law enacted in October 2013 which permitted same-sex marriage in the Australian Capital Territories (ACT). As was expected, the High Court found that the Act was inconsistent with federal law on marriage, which defines marriage as a union between a man and a woman.