Landmark same-sex partnerships ruling

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  • Chief Justice Ian Kawaley

    Chief Justice Ian Kawaley


Widespread ramifications possible

Yesterday’s Supreme Court ruling promising greater rights for unmarried and same-sex couples could have widespread ramifications, according to lawyer Peter Sanderson.

Speaking following the ruling, Mr Sanderson said: “Subject to the final order being drawn up, the effect is that same-sex partners of Bermudians in a stable relationship do not need a work permit.

“The wider implication is that laws covering a variety of government services could be disapplied by the courts if they discriminate.

“Discrimination is unlawful if it is on the grounds of race, place of origin, colour, ethnic or national origins, sex, sexual orientation, marital status, disability, family status, religion, beliefs, political opinions, age or criminal record. The Chief Justice indicated that the court would not automatically disapply a discriminatory law — rather the court would exercise discretion so as to avoid unintended consequences.

“Already this year, we have seen adoption laws and immigration laws disapplied by the courts on the grounds that they discriminate against same-sex couples. It is likely that there are other laws which also discriminate on that basis.

“The Chief Justice noted the international law obligation for Bermuda to create some sort of coherent legal framework for the recognition of same-sex relationships. It is likely that, if this were done, there would not be the same urgency to bring such cases before the courts.”

The Supreme Court has ruled that those in same-sex partnerships with Bermudians should have the same rights to reside and seek employment as spouses of Bermudians.

The landmark ruling comes as a result of a legal action brought by the Bermuda Bred Company against both the Minister of Home Affairs and the Attorney-General.

The company, which describes itself as a group of Bermudians involved in “binational relationships”, had argued that the Immigration and Protection Act had to be read in conjunction with the Human Rights Act, which does not allow discrimination on the grounds of marital status or sexual orientation.

Through lawyer Peter Sanderson, they argued that Bermudians in long-term same-sex relationships had no right to have their foreign partners residing and working in Bermuda while married, same-sex couples did.

In addition, the laws did not allow foreign unmarried partners who are sponsored to reside in Bermuda with their partners, regardless of sexual orientation, but there is no provision for same-sex partners to enjoy the same residential and working benefits allowed to foreign spouses under immigration laws and policies.

In a judgment delivered yesterday, Chief Justice Ian Kawaley ruled in favour of the Bermuda Bred Company, writing: “The complaint was that this section, and sections 27 and 27a which confer preferred residential rights on wives and husbands of Bermudians, discriminate directly against unmarried Bermudians and indirectly against gay and lesbian Bermudians.

“These provisions purported to authorise the minister to regulate the entry into Bermuda of long-term foreign partners of Bermudians which discriminated against those Bermudians who were unmarried or in same-sex relationships.

“The direct discrimination was self-evident and quite obvious. No or no coherent counterargument was advanced on behalf of the respondents. The fact that the statutory provisions said to be inoperative because they conflicted with the HRA could not be attacked as unconstitutional was entirely beside the point.

“The indirect discrimination complaint required only marginally more analysis. Because same-sex marriage was neither possible nor recognised under existing Bermuda law, the relevant statutory provisions discriminated against Bermudians in stable same-sex relationships in an indirect way.

“Because while a heterosexual Bermudian at least had the option of marrying his or her partner with a view to receiving the benefit of spousal rights, this option was not available to homosexual Bermudians.”

As a result, Dr Justice Kawaley ruled that the applicant was entitled to a declaration that the offending sections of the immigration legislation were inoperative to the extent that they authorise the minister or deny the same-sex partners of persons who possess Bermuda status residential and employment rights comparable to those conferred on spouses by the legislation.

Following the ruling, the Bermuda Government requested that the effects of the judgment be suspended for a parliamentary year to allow them to comply, stating that the ruling could lead to a myriad of changes in the Island’s laws.

Dr Justice Kawaley adjourned that argument to a date to be fixed within the next two weeks.

A spokesman for the Bermuda Bred Company said they welcomed the judgment, saying: “We firmly believe in equality in these areas and in levelling the playing field for same-sex families.

“The effect of the decision is very specific: the non-Bermudian same-sex partners of Bermudians, who are in committed relationships, are entitled to live and work in Bermuda without immigration restriction. The decision does not deal with the recognition of marriage equality.

“The judgment recognises that not only is the Island’s immigration policy unlawfully discriminatory, but that it also places an unfair emotional and financial burden on gay and lesbian Bermudians in binational relationships. Such families will have the effective ability to make life plans that include Bermuda as a home.

“The government has asked the court for time to consider the implications of the decision and importantly, in their words, to get their ducks in a row. We take this to mean that there will be no appeal of the decision, and that the government is committed to giving full effect to the order once it is finalised. We hope this can be done without delay.”

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Published Nov 28, 2015 at 8:00 am (Updated Nov 28, 2015 at 8:15 am)

Landmark same-sex partnerships ruling

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