LGBT rights in the Cayman Islands

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LGBT rights in the Cayman Islands
LocationCaymanIslands.png
Same-sex sexual intercourse legal statusLegal since 2001[1]
Gender identity/expression
Military serviceUK responsible for defence
Discrimination protectionsNo
Family rights
Recognition of
relationships
No
AdoptionNo

Lesbian, gay, bisexual, and transgender (LGBT) persons in the Cayman Islands may face legal challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity are legal in the Cayman Islands, but same-sex couples and households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex married couples. The Cayman Islands is a British Overseas Territory. Although the local Legislature and courts are independent from the United Kingdom of Great Britain and Northern Ireland, Her Majesty's Government deals with all international relations on behalf of the Territory. The Foreign and Commonwealth Office oversees the governance of the Cayman Islands.

Legality of same-sex sexual activity[edit]

Same-sex sexual acts were expressly decriminalised under Britain's Caribbean Territories (Criminal Law) Order, 2000, which took effect on 1 January 2001.[2]

Britain's International Covenant on Civil and Political Rights report on its Overseas Territories on Bermuda, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, the Pitcairn Islands, Saint Helena, and the Turks and Caicos Islands in 1999 stated that "The United Kingdom Government is concerned that all Overseas Territories should adopt – as most of them, indeed, already do – substantially the same position as obtains in the United Kingdom itself in respect of capital punishment, judicial corporal punishment and the treatment as criminal offences of homosexual acts between consenting adults in private".[3]

The repeal of the anti-gay law was condemned by conservative groups and politicians, several of whom made conspiracy theories of a supposed secret gay lobby trying to destroy Cayman values and Chrisitanity.[4]

The age of consent is higher for homosexuals (21) than it is for heterosexuals (16).[5]

Recognition of same-sex couples[edit]

The Marriage Law of the Cayman Islands defines marriage between one man and one woman.[6]

In 2006, the Cayman "People for Referendum" activist group began protesting against LGBT rights and same-sex marriage, after the Dutch High Court ruled Aruba has to recognise same-sex marriages registered in the Netherlands. "People for Referendum" claimed that the British Foreign and Commonwealth Office (FCO) could force legal recognition of same-sex marriages in the Cayman Islands too.[3]

The new Constitution, approved in June 2009, notes the right of opposite-sex couples, who are of marriageable age as defined by law, to have their marriages recognised by the Government. The Constitution does not explicitly mention same-sex couples.[7]

In August 2015, in light of Oliari and Others v Italy, a case in which the European Court of Human Rights (ECHR) ruled that it is discriminatory to provide no recognition to same-sex couples, the Legislative Assembly unanimously (save for 4 abstentions) reaffirmed its same-sex marriage ban. The ECHR has jurisprudence over the Cayman Islands.[8]

In 2015, the Premier of the Cayman Islands, Alden McLaughlin, indicated that his Government was examining the immigration law and regulations to find a way to allow same-sex couples who are legally married in other jurisdictions the right to have their spouses recognised as dependants.[9]

In July 2016, the Immigration Appeals Tribunal ruled in favour of a gay man who wished to be added to his spouse's work permit as a dependent. The two men's application was made 14 months prior to the ruling and was rejected by the authorities; they subsequently filed a lawsuit. A July 2016 ruling by the European Court of Human Rights had significant implications for the lawsuit. The ECHR found that a refusal to grant a residence permit to a same-sex couple in Italy on family grounds was unjustified discrimination.[9][10][11] Despite this ruling, the immigration authorities later refused to grant dependency rights to two other dual Caymanian same-sex couples. The two couples were forced to leave the Cayman Islands, despite one partner being Caymanian.[12] In December 2017, Colours Cayman, an LGBT group, raised these concerns with the European Union in hopes it would address this inequality.

On 6 October 2016, the Legislative Assembly of the Cayman Islands voted against a proposal to hold a referendum on whether the territory should legalise same-sex marriage. The proposal was voted down 9-8. It was filed by MLA Anthony Eden after the Immigration Appeals Tribunal ruled to allow the same-sex partner of a work permit holder to remain in the Cayman Islands as a dependent on his partner’s permit. Premier Alden McLaughlin expressed his opposition to the referendum proposal.[13] In the weeks prior to the 2017 elections, legal expert Dr Leo Raznovich invited same-sex couples on the island to challenge the implicit ban on same-sex marriage in Cayman law, arguing the lack of express prohibition in the Constitution and local legislation to same-sex marriage triggers sections 24 and 25 of the Constitution.[14][7]

Shortly after taking office, Governor Anwar Choudhury announced his support for same-sex civil unions.[15]

In April 2018, a dual Caymanian-British same-sex couple, Chantelle Day and Vickie Bodden, revealed their intention to file a lawsuit challenging the Cayman Islands' statutory same-sex marriage ban, after their application to marry was rejected by the island's Civil Registry.[16] The couple formally filed suit with the Grand Court on 20 June 2018, arguing that the section of Cayman's Marriage Law, which defines marriage as between "one man and one woman", is incompatible with various rights guaranteed under the Constitution.[6][17] The case is scheduled to be heard in February 2019.[18]

Discrimination protections[edit]

In 2009, a draft constitution for the Government of the Cayman Islands excluded LGBT rights. The British Foreign Affairs Committee described the decision to exclude sexual orientation as a prohibited ground for discrimination as "deplorable" and raised concerns that it breached human rights laws. It raised the possibility that Cayman Islands residents could be afforded less than the full protection to which they are entitled, under the European Convention on Human Rights.[19]

Military service[edit]

Lesbian, gay, bisexual and transgender people have been allowed to serve openly in the British Armed Forces since 2000.[20]

Living conditions[edit]

Open displays of affection between same-sex partners may offend. Cayman society tends to be conservative when dealing with issues such as LGBT rights, though the younger generation is considered to be increasingly culturally liberal.[4]

The gay scene in the Cayman Islands is limited, with no specific gay nightclubs or beaches.[4] However, several hotels and tourist areas cater to gay clientele.

Homophobia[edit]

While the Cayman Islands is officially secular and the Constitution guarantees equality and non-discrimination, the Government has been particularly vocal and unapologetic in expressing its anti-gay attitudes. In 1998, it forbade a Norwegian Cruise Line ship carrying over 900 gay travellers from porting. The Tourism Ministry stated: "We cannot count on this group to uphold the standards of appropriate behaviour expected of visitors to the Cayman Islands."[4] The ban drew criticism from human rights groups and travel agencies, some of which advised a boycott of the islands.[4] In 2008, police arrested a Massachusetts gay man after he kissed his partner on a nightclub dancefloor. He was later released.[4]

Summary table[edit]

Same-sex sexual activity legal Yes (Since 2001)
Equal age of consent No (Pending)
Anti-discrimination laws in employment No
Anti-discrimination laws in the provision of goods and services No
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) No
Same-sex marriages No
Recognition of same-sex couples No/Yes (First same-sex couple recognised for immigration purposes in 2016)
Stepchild adoption by same-sex couples No
Joint adoption by same-sex couples No
LGBT people allowed to serve openly in the military Yes (Since 2000; responsibility of the United Kingdom)
Right to change legal gender No
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No (Banned for heterosexual couples as well)
MSMs allowed to donate blood No

See also[edit]

References[edit]

  1. ^ State-sponsored Homophobia A world survey of laws prohibiting same sex activity between consenting adults Archived 2013-07-19 at WebCite
  2. ^ "MPs criticise Cayman Islands' draft constitution for omitting gay rights". Pink News. Retrieved 19 January 2011.
  3. ^ a b Gay Life in Cayman Islands
  4. ^ a b c d e f Gay Life in Cayman Islands
  5. ^ Cayman may have to sanction same sex unions, expert says
  6. ^ a b "Couple files legal challenge to gay marriage ban". Cayman Compass. 20 June 2018.
  7. ^ a b "The Cayman Islands Constitution Order 2009, Section 14, 'Marriage'" (PDF). Cayman Constitution. Retrieved May 20, 2016.
  8. ^ Cayman Islands reaffirms ban on gay marriage in wake of European court verdict
  9. ^ a b European Court ruling paves way for gay marriage case in the Cayman Islands
  10. ^ Cayman Islands immigration tribunal finds in gay couple's favour
  11. ^ Gay couple wins work permit appeal
  12. ^ Activists raise more concerns over discrimination
  13. ^ UPDATED: Bid for referendum on gay marriage fails Cayman Compass, 6 October 2016
  14. ^ Same-sex couples urged to test Cayman marriage law
  15. ^ Governor gives views on civil unions, Cayman Compass, April 3, 2018
  16. ^ "Women plan legal action after marriage rejection". Cayman News Service. 18 April 2018.
  17. ^ "Court gives green light to same-sex marriage case". Cayman Compass. 25 July 2018.
  18. ^ "Gay marriage trial set for early next year". Grand Cayman, Cayman Islands: Cayman News Service. 5 October 2018. Archived from the original on 6 October 2018. Retrieved 6 October 2018.
  19. ^ "MPs criticise Cayman Islands' draft constitution for omitting gay rights". Pink News. Retrieved 19 January 2011.
  20. ^ UK armed forces recruits to be asked if they are gay The Guardian