IBA Annual Conference in Paris – LGBTQI+ Law Committee panels

Filip Rak, 9 November 2023

This year, the International Bar Association (IBA) Annual Conference demonstrated a significant commitment to LGBTQI (lesbian, gay, bisexual, transgender, queer and intersex) issues. This exceptional commitment of the IBA highlights the global legal community's dedication to addressing and advancing fundamental human rights. Such an inclusive approach reinforces the IBA's role as a leader in fostering dialogue and progress in the legal field, ensuring that no one is left behind in the pursuit of justice and equality.

Among the events organised by the LGBTQI+ Law Committee there were two panels on LGBTQI-related issues.

First panel: ‘LGBTQI and family law – a global view’ (31 October 2023)

The first panel provided insights into LGBTQI family rights, marriage and parenthood issues from a global perspective. The panel was moderated by Robert Ellison, an attorney working in São Paulo, Brazil, and Co-Chair of the LGBTQI+ Law Committee. The panellists included:

• Marion Bonnet – BWG Law, Paris, France
• Nihit Nagpal – S S Rana & Co, New Delhi, Delhi, India
• Leonardo Pinta – Studio Legale Associato Shearman & Sterling, Rome, Italy
• Carli Schickerling – Schickerling Attorneys, Windhoek, Namibia

Summary of presentations

Namibia

Carli Schickerling shared her experience with a successful litigation case in Namibia. The case involved the recognition of same-sex unions concluded abroad. Two binational couples, one married in Germany and another in South Africa, had settled in Namibia but faced difficulties in obtaining residency permits. The country's High Court, supported by the Supreme Court, ultimately ruled in favour of the couples, recognising the violation of their rights and condemning discrimination against same-sex couples. Carli also introduced a context of the legal situation of the LGBTQI community in Namibia; although, in general, there are no equal rights for LGBTQI families in Namibia, the LGBTQI associations may be registered. At the same time, there are anti-‘sodomy’ laws that are still in force in Namibia. Most recently, as a result of the Supreme Court success of the case that Carli was involved in, the Namibian Parliament proposed an anti-gay law banning gay marriages and punishing anyone who is even informally engaged in same-sex marriage with a penalty of up to six years imprisonment.

France

Marion Bonnet's presentation began with an outline of the historical background, including the landmark decriminalisation of homosexuality in 1981. Marion discussed how the legal landscape for transgender individuals improved, with the removal of transsexuality from the list of mental diseases in 2010 and, since 2016, the elimination of the surgical requirement to change gender markers. Marion also addressed the 2021 bioethics law, which introduced medically assisted reproduction for certain groups but excluded transgender individuals. Filiation issues for transgender individuals remained unregulated, and despite progress in recognising filiation for two mothers, surrogacy is still penalised by criminal law. Recent Supreme Court decisions reversed previous case law regarding birth certificate issuance, allowing only the biological mother to be indicated.

Italy

Leonardo Pinta shared his personal story of legal challenges related to same-sex parenthood in Italy – a country where there are no gay adoption rights, despite the introduction of same-sex civil unions following an intervention by the European Court of Human Rights in 2014. Leonardo talked about how he and his husband faced legal hurdles in obtaining recognition for their child born via surrogacy. Additionally, Leonardo discussed a recent proposal for anti-gay laws in Italy, which could further penalise surrogacy by introducing a universal jurisdiction for prosecuting surrogacy conducted abroad (a legal solution that is designed, for example, for war crimes).

India

Nihit Nagpal discussed the recent Supreme Court rejection of same-sex marriages in India. The Supreme Court refused to accord legal recognition to marriages between persons of the same sex, emphasising that the matter should be addressed by Parliament and state legislatures. The ruling was a serious setback in LGBTQI rights advancement in India.

Second panel: ‘The confluence of the rule of law and LGBTQI issues’ (1 November 2023)

The second panel featured a discussion on the intersection of rule of law, independence of the judiciary and LGBTQI rights worldwide. The panel was moderated by Steeves Bujold from McCarthy Tétrault (Montréal, Québec, Canada), Website Officer at the LGBTQI+ Law Committee. The panellists included:

• Njeri Gateru – National Gay & Lesbian Human Rights Commission, Nairobi, Kenya
• Elai Katz – McDermott Will & Emery, New York, US
• Filip Rak – Wardynski Partners, Warsaw, Poland
• Remy Choo Zheng Xi – Joint Managing Director, RCL Chambers, Singapore

Summary of presentations

Kenya's ups and downs

Njeri Gateru talked about her struggle as a legal head of the National Gay & Lesbian Human Rights Commission in Nairobi to register the first pro-LGBTQI Kenyan non-governmental organisation. Thanks to her efforts, the Supreme Court of Kenya agreed to register it after months of legal battle. Despite this positive development, Kenya still has in force a colonial-era law criminalising homosexual activity with a 15-year prison sentence. On a top of that, Njeri discussed the Kenyan government's plans to introduce a death sentence for homosexual activity in Kenya, inspired by the similar law already in force in Uganda. This development raises serious concerns about the rights of the LGBTQI community in Kenya. Apart from these challenges, the LGBTQI community in Kenya still faces social stigma, discrimination, and violence, such as forced anal examinations used as evidence in criminal investigations against LGBTQI people.

Singapore's repeal of anti-gay law

Remy Choo Zheng Xi discussed a constitutional court litigation in which he participated against ‘3778 law’ criminalising homosexual activity in Singapore. The case ended up – after several previous attempts – with a successful repeal of this colonial-era anti-gay law that was introduced in 1949 in Singapore. Remy’s story highlights the role of the judiciary in advancing LGBTQI rights.

Poland's rule of law crisis

Filip Rak discussed how Poland's rule of law crisis has led to a backsliding in LGBTQI rights’ protection, including a state-wide hate campaign commenced during the presidential election campaign of 2020. Opening his presentation with the real-life case of a transgender woman who was fired from her job, took her employer to court and won, Filip then concentrated on the crisis of the Polish judiciary. In particular, the discussion concerned politicising the judiciary and the prosecution service, and introduction of a so-called extraordinary appeal (an instrument filed to the newly created Extraordinary Chamber of the Supreme Court) which came as challenges that the claimant, her lawyers, as well as the Polish Ombudsman Office, had to overcome. As an example, Filip highlighted that Poland has demonstrated that safeguarding fundamental human rights is crucial to prevent backsliding that may be initiated by the emerging authoritarian government.

Israel's judicial reforms

Elai Katz discussed the concerns that were raised regarding Israel's potential challenges to LGBTQI rights due to non-democratic judicial reforms. Elai discussed how the judicial appointments procedure was about to change in Israel to increase the political control over the judiciary, and the plans on law on protection against discrimination on grounds of religion, which raised concerns as a potential ‘backdoor’ opportunity to discriminate on grounds of sexual orientation in provision of services. Elai emphasised the importance of a strong legal system in protecting LGBTQI rights.

Summary

The LGBTQI+ Law Committee's panels received enthusiastic participation and generated robust discussions. Apart from that, the conference provided excellent networking opportunities for LGBTQI Law Committee members and allies.