Saturday, November 28, 2015
The Supreme Court of Bermuda issued a landmark decision on November 27, 2015 finding that persons in same-sex relationships with Bermudians should have the same rights as opposite-sex spouses of Bermudians to live in Bermuda and to seek employment there.
The decision delivered by Chief Justice Ian Kawaley was in a case brought in February 2015 by the Bermuda Bred Company against the Minister of Home Affairs and the Attorney-General of Bermuda. The company was seeking a declaration that same-sex partners were entitled to the same treatment as wives and husbands under the Bermuda Immigration and Protection Act 1956 as read with Section 5 of the Human Rights Act 1981.
The parties agreed that Bermudians in stable, long-term same-sex relationships (whether unmarried or legally married in the United States) had no right to have their same-sex partners residing and working in Bermuda. This makes it "emotionally and financially difficult for Bermudians who are gay and/or lesbian . . . to live in their own country while sustainging such relationships."
The court noted that Section 30B(1) of the Human Rights Act provides that the Human Rights Act should prevail over any contrary legislation (unless the other legislation specifically provides that the Human Rights Act should not prevail over a specific piece of legislation). Section 29 of the Human Rights Act also allows the Supreme Court to declare inoperative any statute that contravenes the Human Rights Act. And Section 2(a) of the Human Rights Act prohibits discrimination based on sexual orientation and marital status.
The court also noted that the European Convention on Human Rights applies to Bermuda, and that the European Court of Human Rights had ruled on July 21, 2015 in Oliari v. Italy, Nos. 18766/11 and 36030/11, that Italy had contravened the right to family life under Article 8 of that Convention by failing to establish a statutory mechanism in Italy to recognize same-sex unions:
167. The court notes that the applicants in the present case, who are unable to marry, have been unable to have access to a specific legal framework (such as that for civil unions or registered partnerships) capable of providing them with the recognition of their status and guaranteeing to them certain rights relevant to a couple in a stable and committed relationship.
The court noted that the Oliveri decision against Italy showed a "positive international law duty under article 8 of the [European Convention on Human Rights] to create some coherent legal framework for the recognition of same-sex relationships formed by Bermudians." [Para. 90.]
The court thus declared inoperative those provisions of the Bermuda Immigration and Protection Act that would deny residential or employment rights to any person who had formed a stable same-sex relationship with a Bermudian. Although the decision in this particular case did not provide for recognition of same-sex marriage in Bermuda, it provides non-Bermudian same-sex partners of Bermudians the right to live and work in Bermuda.
Click here to read the decision.
Mark E. Wojcik (mew)