LGBT rights in Gibraltar

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LGBT rights in Gibraltar
Location of  Gibraltar  (dark green)– in Europe  (light green & dark grey)– in the European Union  (light green)  –  [Legend]
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 equalized since 2011
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 is legal since 1993 and the age of consent is equalised at 16 since 2011. The Supreme Court of Gibraltar ruled in April 2013 that same-sex couples have the right to adopt. Civil partnerships are available for both same-sex and opposite sex couples since March 2014.

Same-sex sexual activity and age of consent[edit]

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]

Recognition of same-sex unions and adoption rights[edit]

The new Gibraltar Socialist Labour Party government elected in 2011, has recently announced plans to:

  • To recognize and to allow Civil Partnerships within Gibraltar for both same-sex and opposite-sex couples (on the same legal model as in the United Kingdom), which is already law since March 2014;
  • 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) and;
  • To include sexual orientation in hate crime legislation under the recent Crimes Act 2011[17][18]

Two hate crimes and anti-discrimination amendments are currently in the process of being drafted as a bill.[19] The GSD opposition's position on the matter is as of late, unclear and a statement on the matter is currently pending.

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.

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.[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.

Additionally, lesbian couples can get access to artificial insemination.

Discrimination protections[edit]

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.[26]

Summary table[edit]

Same-sex sexual activity legal Yes (since 1993)
Equal age of consent Yes (since 2011)
Anti-discrimination laws in employment Yes (since 2005)
Anti-discrimination laws in the provision of goods and services No (Under consideration - bill pending)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) No (Under consideration - bill pending)
Recognition of same-sex couples (civil partnership) Yes (since 2014)
Adoption by same-sex couples Yes (since 2014)
Gays allowed to serve in the military Yes (in the British Armed Forces since 2000)
Access to IVF for lesbians Yes
Right to change legal gender No (Under consideration)
Same-sex marriage(s) No
MSMs allowed to donate blood No
Commercial surrogacy for gay male couples No (banned for heterosexual couples as well)

See also[edit]

References[edit]

  1. ^ a b JUDGE RULES: AGE OF CONSENT IS 16 FOR ALL
  2. ^ "Equality Rights Ggr". Equalityrightsggr.blogspot.com. Retrieved 2014-04-05. 
  3. ^ [1] Retrieved on 23 August 2007.
  4. ^ [2][dead link]
  5. ^ PM Brown To Take Up Gay Age of Consent Inequality in Gibraltar
  6. ^ [3][dead link]
  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. Retrieved 2014-04-05. [dead link]
  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. Retrieved 2014-04-05. [dead link]
  17. ^ A radical overhaul of Gibraltar’s criminal legislation comes into force today
  18. ^ "Gibraltar Chronicle - The Independent Daily First Published 1801". Chronicle.gi. Retrieved 2014-04-05. [dead link]
  19. ^ "Gibraltar Chronicle - The Independent Daily First Published 1801". Chronicle.gi. Retrieved 2014-04-05. [dead link]
  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. ^ The Rock of prejudice Retrieved on 23 August 2007.

External links[edit]