LGBT rights in Gibraltar

LGBT rights in Gibraltar

Location of  Gibraltar  (dark green)

– in Europe  (light green & dark grey)
– in the European Union  (light green)  –  [Legend]

Same-sex sexual activity legal? Legal since 1993,
age of consent equalised since 2012
Gender identity/expression Transsexual persons not allowed to change legal gender
Military service Gays and lesbians allowed to serve openly
Discrimination protections Sexual orientation only (in employment only) since 2005
Family rights
Recognition of
relationships		 Civil partnerships since 2014
Adoption Legal since 2014

In the British overseas territory of Gibraltar, same-sex sexual activity has been legal since 1993 and the age of consent was equalised to 16 in 2012. The Supreme Court of Gibraltar ruled in April 2013 that same-sex couples have the right to adopt. Civil partnerships have been available for both same-sex and opposite sex couples since March 2014.

Same-sex sexual activity and age of consent

In Gibraltar, the age of consent for all sexual activity regardless of sexuality and/or gender was equalised at 16 in April 2011, when under Supreme Court order the previous law – under which the age of consent for gay males was 18 – was found to be unconstitutional. Heterosexual anal sex was decriminalised at the same time and the age of consent set at 16.[1] Gay male sexual conduct was decriminalised in 1993.

Political campaigning prior to the 2007 Election was prominent with equality rights organisation Gib Gay Rights (GGR),[2] headed by human rights campaigner Felix Alvarez openly challenging the incumbent Chief Minister, Peter Caruana for more rights in Gibraltar for gay and lesbian people, and others who are discriminated against.[3]

Campaigning on the issue of an equal age of consent of 16 had been strongly undertaken.[4][5][6]

The issues were raised at the Foreign Affairs Committee enquiry into the overseas territories in 2008, where they concluded:

We recommend that the Government should take steps to ensure that discrimination on the basis of sexual orientation or gender status is made illegal in all overseas territories.[7]

On 18 May 2009, the Gibraltar Parliament approved by Government majority leave for a Private member's bill, proposed by the Minister for Justice, to equalise the age of consent. This was opposed by the GSLP/Liberal opposition for technical reasons due to the way the Bill was written. The Government gave its Members of Parliament a free vote on the Bill. It was defeated, as the Government members were split on its approval, and the opposition members all voted against it.

The influential Gibraltar Women's Association (GWA) has called for the age consent to be levelled at 18.[8]

On 1 October 2009, new proposed legislation would enable the Government of Gibraltar to ask the Supreme Court to test whether existing or draft laws are compatible with the Constitution. This would provide a simplified, purpose-built mechanism to deal with contentious issues such as the age of consent.[9]

In March 2010, the Government of Gibraltar was seeking an opinion from Court of the age of consent legal issue to see if the law is discrimination under the principles of the European Council.[10][11]

On 1 April 2010, Secretary of State for Foreign and Commonwealth Affairs David Miliband pointed out that if a British overseas territory is unwilling to meet 'international obligations' such as equalising the age of consent it may be imposed by an Order in Council.[12][13][14][15]

On 8 April 2011, the Supreme Court of Gibraltar ruled that a higher age of consent of 18 for all gay sex was deemed unconstitutional, and thus mandated an equal age of consent of 16. Also at the same time decriminalised heterosexual anal sex and set the age of consent at 16 for that as well.[1]

In August 2011, the gender-neutral Crimes Act 2011 was approved, which sets an equal age of consent of 16 regardless of sexual orientation, and reflects the recent Supreme Court decision in statute or law.[16] The law took effect on 23 November 2012.[17]

Recognition of same-sex unions and adoption rights

On 10 April 2013, the Supreme Court ruled that section 5 (2) of the Adoption Act was in violation of the Gibraltar Constitution thus in effect, de jure legalising LGBT adoption in Gibraltar. The Government has announced that they plan to amend the law as soon as possible and the Care Agency will take appropriate measures to allow gay couples to adopt.[18][19]

In January 2014, the Civil Partnership Bill 2014 was published for community consultation and headed for the introduction to the Gibraltar Parliament.[20] On 21 March, the bill was approved by the parliament with no noticeable opposition.[21] The bill was given Royal Assent on 25 March. The law and related rules and regulations took effect on 28 March.[22][23][24][25] The law also allows adoption of children by couples in a civil partnership, as mandated by the recent Court ruling in 2013.

The GSLP–Liberal Alliance, who were re-elected in 2015, included the following commitment their election manifesto: "We will now publish a Command Paper in order to take the views of the public on how to best deal with the request by some for civil marriage to be extended to same sex couples. We are totally committed both to ensuring that religious denominations are not forced to change their practices, beliefs or sacraments in any way and to the principle that the State must not discriminate between individuals based on the grounds of sexual orientation. The results of the responses to the Command Paper will be published by June [2016]."[26] The Equal Rights Group said it did not go far enough and asked for more commitment to introduce same-sex marriage.[27]

On 22 December 2015, the Command Paper on introducing same-sex marriage was published and will be under consultation process until 15 January 2016.[28][29][30] On 4 January 2016, it was announced that the consultation period has been extended until 29 January 2016.[31][32][33] On 5 January 2016, a spokesman for the Government has stated that a referendum on the issue has not yet been ruled out until all the comments submitted by the public have been considered.[34]

On 18 January 2016, in his New Year message, GSD leader Daniel Feetham has declared his support for same-sex marriage and, despite allowing members of his party a free vote on matters of conscience, has stated that his parliamentary colleagues have all declared their support on the issue as well. He then stated that it was up to the Government to decide on how to proceed with the issue when the time comes.[35][36]

On 20 January 2016, it was announced by Chief Minister Fabian Picardo (GSLP) that there would be no referendum on same-sex marriage[37][38] after a parliamentary debate on the issue was initiated by the Opposition. In that same debate, the Chief Minister has stated that he expects the feedback from the consultation process to actually improve the bill on same-sex marriage.[39]

On 21 March 2016, the Government has announced that it has received 3,490 responses in regards to the public consultation and that, due to the controversial nature of this subject, it would establish an 'Inter-Ministerial Committee' (composed of four members of the Government: Gilbert Licudi, Samantha Sacramento, Neil Costa, and Albert Isola) to listen to the views of the various groups and many of the individuals who expressed a view on this subject, and report its findings back to Cabinet by the June of this year.[40][41][42] In response to the Government's announcement, the chairman of the Equality Rights Group (ERG), Felix Alvarez is questioning the commitment of the governing GSLP-Liberal Alliance to legislate on this matter and urges both the LGBT community at large, and their friends and supporters to remain calm and reserve their responses until the Government comes up with a definitive answer on how to handle this situation. In this same response, based on their own statistics and past advocacy efforts, Alvarez claims that over 63% of those consultation responses are in favor of Equal Marriage and that this situation shouldn't be made more complicated than it should be.[43]

Additionally, lesbian couples can get access to artificial insemination.

Discrimination protections

The 2006 Constitution does not mention sexual orientation. The proposals, made public early March 2002, specifically omitted direct reference to "sexual orientation" as a category to be constitutionally protected. Other categories are clearly included.[44]

The Gibraltar Socialist Labour Party government elected in 2011, has announced plans to include sexual orientation under the goods and services anti-discrimination section (sexual orientation is already covered in anti-discrimination law under employment since 2005). The party renewed this commitment in their manifesto for the 2015 election, in which they were re-elected.[26]

Hate crime legislation

The bill to amend the Crimes Act 2011, that will criminalise both hatred and harassment on the ground of sexual orientation as a hate crime, was approved by the Gibraltar Parliament on 19 September 2013 and given Royal Assent on 25 September. The law took effect on 10 October 2013.[17][45]

Summary table

Same-sex sexual activity legal (Since 1993)
Equal age of consent (Since 2012)
Anti-discrimination laws in employment (Since 2005)
Anti-discrimination laws in the provision of goods and services (Under consideration)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) (Since 2013)
Recognition of same-sex couples (civil partnership) (Since 2014)
Adoption by same-sex couples (Since 2014)
Gays allowed to serve in the military (In the British Armed Forces since 2000)
Access to IVF for lesbians
Right to change legal gender (Under consideration)
Same-sex marriage(s) (Under consideration)
MSMs allowed to donate blood
Commercial surrogacy for gay male couples (Banned for heterosexual couples as well)

See also

References

  1. 1 2 JUDGE RULES: AGE OF CONSENT IS 16 FOR ALL
  2. ↑ "Equality Rights Ggr". Equalityrightsggr.blogspot.com. Retrieved 2014-04-05.
  3. ↑ Retrieved on 23 August 2007.
  4. ↑ Archived 17 January 2008 at the Wayback Machine.
  5. ↑ PM Brown To Take Up Gay Age of Consent Inequality in Gibraltar
  6. ↑ Archived 17 January 2008 at the Wayback Machine.
  7. ↑ "2008 Overseas Territories Review".
  8. ↑ "Gibraltar Women's Association view".
  9. ↑ New Legislation
  10. ↑ Pinknews.com - Gibraltar court to rule on gay age of consent
  11. ↑ Gibraltar Chronicle - Courts set to decide on gay consent age
  12. ↑ Britain ‘could force Gibraltar to adopt equal age of consent’
  13. ↑ "Gibraltar Chronicle - The Independent Daily First Published 1801". Chronicle.gi. Archived from the original on 27 February 2012. Retrieved 2014-04-05.
  14. ↑ "Gibraltar Chronicle - The Independent Daily First Published 1801". Chronicle.gi. Retrieved 2014-04-05.
  15. ↑ Gay Group Accuses Chief Minister of Homophobic Crusade "At Tax Payers Expense"
  16. ↑ "Gibraltar Chronicle - The Independent Daily First Published 1801". Chronicle.gi. Archived from the original on 3 November 2013. Retrieved 2014-04-05.
  17. 1 2 CRIMES ACT 2011
  18. ↑ Gibraltar court rules denial of joint adoption by lesbian couple illegal
  19. ↑ Gibraltar gives green light to gay adoptions
  20. ↑ Command Paper on a draft bill to make provision for civil partnerships
  21. ↑ Gibraltar approves civil partnerships bill
  22. ↑ CIVIL PARTNERSHIP ACT 2014
  23. ↑ CIVIL PARTNERSHIP (FEES) REGULATIONS 2014
  24. ↑ CIVIL PARTNERSHIP RULES 2014
  25. ↑ CIVIL PARTNERSHIP
  26. 1 2 GSLP/Liberals Manifesto 2015, pages 95-96
  27. ↑ ERG asks for more commitment on Equal Marriage, GBC, 16 November 2015
  28. ↑ Command Paper on a draft Act to make amendments to the Marriage Act to make provision for same sex marriage and enable civil partners to convert their partnership into marriage
  29. ↑ Command Paper published on same sex marriage
  30. ↑ We welcome Same Sex Marriage announcement – but we’re not quite there yet!, Equality Rights Group
  31. ↑ Consultation period extended for same-sex marriage Bill (GBC)
  32. ↑ Jan 04 - Extension Of Same Sex Marriage Consultation Period (YGTV)
  33. ↑ Extension to Consultation Period for Command Paper on Marriage Act
  34. ↑ Referendum on the question of gay marriage has apparently not been ruled out (GBC)
  35. ↑ Opposition would support same-sex marriage legislation, says Feetham (GBC)
  36. ↑ Jan 18 - New Year’s Message By The Leader Of The Opposition (YGTV)
  37. ↑ BREAKING NEWS: there will be NO Referendum to decide same-sex marriage! (ERG)
  38. ↑ Jan 20 - ERG Welcomes Parliamentary Announcement (YGTV)
  39. ↑ New members debut in Parliament (GBC)
  40. ↑ Over 3,400 responses to ‘Equal Marriage’ Command Paper (Gibraltar Chronicle)
  41. ↑ Nearly 3,500 submissions on equal marriage command paper (GBC)
  42. ↑ Equal Marriage: Responses to Command Paper
  43. ↑ Mar 21 - ERG Says Government's Behaviour Regarding Equal Marriage Consultation Is "Fidgety And Indecisive" (YGTV)
  44. ↑ The Rock of prejudice Retrieved on 23 August 2007.
  45. ↑ Criminal Justice (Amendment) Act 2013

External links

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