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Sexual Orientation, Gender Identity, and the Law

Decades ago when I was looking for legal information on gays in the military worldwide, resources were scarce. Those gopher, pre-web days are gone and now researchers can find a wide variety of resources on the global legal status of lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI) people. So, let’s check to see how these resources cover military law related to LGBTQI persons around the globe.

The newest resource is the International Commission of Jurists’ Sexual Orientation, Gender Identity, and Justice: A Comparative Law Casebook (September 2011). It includes a foreword by the Hon. Michael Kirby, former President of the ICJ, which provides a broad overview of the jurisdictions and issues covered by the collected cases. The introduction describes the background, purpose, and limitations of the Casebook, and the ICJ’s observations about the cases therein.

The ICJ…hopes that the Casebook will promote public interest litigation in defence of rights, assist individuals whose rights have been violated to seek redress in court, and enable lawyers to develop effective and persuasive reasoning… [T]he ICJ hopes that the Casebook will stand as evidence for the claim that law on sexual orientation and gender identity is global in nature.

This 417-page ICJ publication sets forth English-language summaries of selected domestic court cases involving sexual minorities from diverse countries. Each chapter includes a general introduction providing an overview of the law, followed by summaries of related cases on the following topics:

  1. Decriminalisation
  2. Universality, Equality and Non-Discrimination
  3. Employment Discrimination
  4. Freedom of Assembly, Association and Expression
  5. Military Service
  6. Intersex
  7. Gender Expression and Cross-Dressing
  8. Recognising Gender Identity
  9. Transgender Marriage
  10. Freedom of Religion and Non-Discrimination
  11. Parenting
  12. Asylum and Immigration
  13. Partnership Benefits and Recognition
  14. Marriage

The Casebook summarizes 108 decisions from courts in 41 countries: Argentina, Australia, Botswana, Brazil, Colombia, Ecuador, Fiji, France, Germany, Hong Kong, Hungary, India, Ireland, Israel, Italy, Japan, Kenya, Korea (South), Lebanon, Malaysia, Mexico, Namibia, Nepal, New Zealand, Pakistan, Peru, the Philippines, Poland, Portugal, Russia, Singapore, Slovenia, South Africa, Thailand, Trinidad and Tobago, Turkey, Uganda, the United Kingdom, the United States, Zimbabwe.

The Casebook also includes court decisions from Canada: Haig v. Canada (1992) (omission of sexual orientation in the Canadian Human Rights Act is discriminatory); Egan v. Canada (1995) (whether exclusion of same-sex relationships from the definition of common law spouse violated the Canadian Charter of Rights and Freedoms Section 15 prohibition of discrimination on the basis of sexual orientation); Vriend v. Alberta (1998) (college laboratory instructor dismissed because of his homosexuality); Hall v. Powers (2002) (student refused permission to attend a prom at a Catholic high school with his boyfriend); Halpern et al. v. Attorney General of Canada (2003) (whether denial of marriage licenses to same-sex couples based on the common law definition of marriage was discriminatory under the Charter; a postscript indicates that the 2005 Civil Marriage Act provided for gender-neutral definition of marriage).

The Casebook concludes with a list of other domestic court cases, and LGBT-related decisions of the European Court of Human Rights (ECHR), the European Court of Justice, the Inter-American Court of Human Rights, and the United Nations Human Rights Committee. Despite the apparent jurisdictional breadth, Michael Kirby points out that the Casebook mainly includes decisions from developed countries. A limitation noted in the introduction is that the Casebook does not cover hate crimes or conditions in detention of LGBT people in custody. Also, there are very few case summaries per legal issue. For example, the Casebook includes only five cases on LGBT military service. Nevertheless, the ICJ Casebook uniquely contributes to LGBT legal resources, covering judicial pronouncements from the last 40 years. Human Rights Watch has a smaller scale compilation covering 1986 to 2009, titled Important International Jurisprudence concerning LGBT Rights.

The LGBT Bibliography, an older, but regularly-updated resource, began as a book first published in 2006 by W.S. Hein with the title: Sexual Orientation and the Law: A Research Bibliography of Legal Literature Discussing Gay, Lesbian, Transgender, and Bisexual Persons, Their Rights and Their Families. It is browsable by table of contents and by author, and keyword-searchable. It includes foreign and international law articles, but only covers the rights of gays in the military in the U.S. thus far. Law librarians, law students, and other volunteers update the LGBT Bibliography with annotations on a quarterly basis via the web. March 2011 is the most recent update. The LGBT Bibliography is an ongoing project of the Standing Committee on Lesbian and Gay Issues (SCLGI) of the American Association of Law Libraries (AALL).

None of the other places I usually check for legal information on sexual orientation and the law (ILGA; ECSOL; SOL LawGuide; AALS SOGI Global Legal Resources) seem to have made available a current comparative survey of gays in the military. The ILGA website makes available a thematic world map depicting which countries allow gays and lesbians to serve in the armed forces, but the website’s country surveys don’t seem to include citations to or texts of the laws. Some individual publications cover the issue, from the old 1993 GAO survey, Homosexuals in the Military: Policies and Practices of Foreign Countries, to the recent Gays in Foreign Militaries 2010: A Global Primer (authored by various public policy researchers at the Palm Center, formerly the Center for the Study of Sexual Minorities in the Military; the Primer includes a list of the 25 countries at page 137, including Canada, that allow openly gay military service), and Suzanne B. Goldberg, Open Service and Our Allies: A Report on the Inclusion of Openly Gay and Lesbian Servicemembers in U.S. Allies’ Armed Forces (2011). A Wikipedia article lists 43 countries that allow gay people to serve in the military. And a 2004 study mentions that, in 1974, the Netherlands became the first country to allow openly gay military service. For Canada, Aaron Belkin and Jason McNichol published a 2000 study, Effects of the 1992 Lifting of Restrictions on Gay and Lesbian Service in the Canadian Forces: Appraising the Evidence.

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Comments

  1. This is a remarkable list of resources, one more of innumerable examples of what information the Internet puts at all our fingertips (if you know how to look… which is why having a professional guide helps!)

    As a very minor quibble, I would not describe the Vriend decision as just a case of wrongful dismissal. The reason to care about it is that the court decided whether sexual orientation must be read into a provincial human rights code as a prohibited ground of discrimination. (Answer, of course: yes.)