May 5, 2007

FEBRUARY'S announcement by the Bermuda Government that it plans to carry out a thorough review and overhaul of our country's human rights legislation is to be welcomed. In its published request for submissions, the Government has stated: "The Government of Bermuda is committed to ensuring that Bermuda possesses a system of human rights protection that protects the interests of all Bermudians and will advance public understanding and respect for human rights." One particular element of the review will include "an examination of the provisions in the Human Rights Act which enumerates prohibited grounds of discrimination to identify possible gaps in protection and to recommend appropriate changes." This national review inevitably brings back to the front burner the issue of the lack of legislative protection for those who remain the target of discrimination on the basis of sexual orientation. If Government follows through on its published commitment, this will necessarily involve amending the Human Rights Act 1981 to expressly outlaw such discrimination.

In December of 2006, the Human Rights Commission ("HRC") publicly announced its support for such an amendment. The HRC's position is consistent with the mindset of the rest of the world, a place in which Bermuda's legislation and mindset has some major catching up to do.

Premier Dr. Brown says that he has not been persuaded that there is a need for protection in Bermuda, stating, "I personally know of many individuals who have reached the pinnacles of Bermudian society who have stated their preference for members of their same sex."

With respect this is no answer at all to the issue. The fact that Sir John Swan is the most successful black politician on record does not mean that racism didn't exist in Bermuda at the time that he was at the pinnacle of his career. Dr. Brown and like-minded thinkers need only read some of the reports published by Bermuda's Criminal Injuries Compensation Board to learn that hatred and violence against gays is alive and well in Bermuda.

In several cases, what started out as disparaging remarks against a homosexual led to the individual being either murdered or seriously injured.

Despite the high number of homosexuals that help to make up our cosmopolitan population, the more subtle forms of homophobism and discrimination are pervasive and widespread in our hypocritical, on-the -surface Victorian society.

During his November 2006 trip to London, Dr. Brown heard first-hand from Bermudian students who voiced their discomfort at returning home to Bermuda for feeling unwelcome on the basis of their sexual orientation. To his credit, Dr. Brown reportedly told the students that the issue remains "open".

Many of his colleagues would no doubt be glad to hear that. Back in 2004, then Community Affairs Minister Mr. Dale Butler announced that he had been presented with irrefutable evidence of discrimination against gays in the workplace and housing arena which he publicly recognized as an undeniable wrong. At that time he announced that his PLP Government would be amending the Human Rights Act to prohibit discrimination on the ground of sexual orientation, stating quite rightly, "The changes will take us out of the Dark Ages." The Government has stated that its comprehensive review intends to take into account international developments. This international study will teach us the following.

Looking to our closest neighbour, no introduction is needed to the hate crimes perpetrated in the United States against homosexuals, crimes that go far beyond discrimination in the workplace. The movie, Boys Don't Cry, told of the story of Brandon Teena, who was raped and brutally murdered in Nebraska in 1993 out of rage at the discovery that he was anatomically female. Tyra Hunter died in 1995 of injuries sustained in a car accident, after District of Columbia firefighters stopped treating her to mock her as a transsexual. In 2002, teenager Gwen Araujo was killed in the San Francisco Bay Area in an apparent hate crime based on her gender expression. Statutory prohibitions on sexual orientation-based discrimination send a strong message to the community regarding the dignity of homosexuals and thus help prevent tragedies such as these. States such as California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Maine, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Washington State, Wisconsin and Vermont currently have comprehensive legislation prohibiting discrimination on the ground of sexual orientation. In addition there are a large number of counties, towns and cities throughout the U.S. including the District of Colombia that have laws and ordinances specifically prohibiting discrimination based on sexual orientation.

Many other institutions like Fortune 500 Companies and universities similarly have prohibited discrimination on the basis of gender identity and expression. More states are likely to join the list soon.

At its Annual General Meeting in August of last year, the American Bar Association approved Resolution 122B which urges more states to adopt anti discrimination laws based on sexual orientation in the areas of employment, housing and public accommodations.

The ABA's fundamental position is based on its underlying commitment to the idea of equal opportunity - that no person should be denied basic civil rights because of membership in a minority group. Thus employment and housing decisions should be made only on the basis of bona fide qualifications rather than stereotypes or prejudices. It is to be noted that the resolution would not preclude typical exceptions to civil rights legislation, such as religious groups' hiring of employees to perform pastoral work, or the offering of housing in small, owner-occupied buildings. Such exceptions could be implemented in Bermuda if necessary.

Europe is equally progressive in this area of human rights and this is relevant given that Bermudians now enjoy the wonderful privilege of sporting European citizenship. Attorney General Mr. Philip Perinchief has promised to look at what Europe is doing in this area. Similarly, Community and Cultural Affairs Minister, Mr. Wayne Perinchief, whose Ministry has charge over human rights legislation, has stated that he would really like Bermuda to be consistent with partners from developed countries and would be looking to European Conventions for guidance.

These leaders will therefore take note that in 2000, the European Community responded definitively to Article 13 of the Amsterdam Treaty which authorized it to "take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation."

This led to the European Community enacting two drectives whose purpose is to prevent people in the European Union from being discriminated against on those stated grounds, including sexual orientation. The Racial Equality Directive and the Employment Equality Directive expressly prohibit discrimination, harassment and victimization in employment and training on various grounds including sexual orientation. These Directives define a set of principles that offers everyone in the European Union a common minimum level of legal protection against discrimination.

Great Britain adopted the European Directives effective December 1st, 2003, by promulgating the Employment Equality (Sexual Orientation) Regulations 2003, which prohibit less favourable treatment of persons, whether through discrimination or harassment, on the ground of sexual orientation in the workplace. The new law applies to all employment and vocational training and includes recruitment, terms and conditions, promotions, transfers, dismissals and training at work. Complaints are made to the Employment Tribunal which has the power to award compensation or order the guilty party to take certain actions to reduce the harmful effects of the discrimination or harassment on the complainant.

The issue made national headlines in England when the male global head of equities trading at HSBC Holdings Plc filed a gay discrimination case against the bank in the largest suit of its kind. The original employment tribunal panel had held that the Bank had discriminated against him during its investigation of the complaint but the Employment Appeal Tribunal reversed that finding earlier this year, finding that he had been dismissed for reasons other than the fact that he was gay.

Many other countries have adopted similar principles in their own domestic legislation. Such countries include but are not limited to: Australia, Belgium, Brazil, Columbia, Cyprus, the Czech Republic, Denmark, the Dominican Republic, Finland, France, Germany, Great Britain, Hungary, Ireland, Israel, Italy, Latvia, the Netherlands, New Zealand, Norway, Portugal, Romania, Spain and Switzerland.

Specific legislation enacted includes the following: In Australia, the federal Human Rights and Equal Opportunity Commission Act 1986 outlaws discrimination in employment on the basis of a number of attributes including sexual preference. In addition to federal legislation, there is legislation in individual States which prohibit such discrimination including the Discrimination Act 1991 (ACT), the Anti-Discrimination Act 1977 (NSW), the Anti-Discrimination Act 1996 ( NT), the Anti-Discrimination Act 1991 (QLD), the Equal Opportunity Acts 1984 (SA & WA) and 1995 (VIC) and the Anti-Discrimination Act 1998 (TAS), all of which serve to protect persons against human rights violations on grounds which include sexual orientation. Discrimination is deemed unlawful in the areas of work, education, access to premises, the provision of goods, services or facilities, accommodation, clubs and professional or trade organizations.

In Canada discrimination is both federally and provincially regulated. At the federal level, for businesses and undertakings that are subject to federal jurisdiction, section 3 of the Human Rights Code prohibits discrimination on grounds of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.

At the provincial level, a number of provinces, such as Ontario back in the 1980s, added sexual orientation as a prohibited ground of discrimination.

In Quebec, for example, section 10 of the Charter of Human Rights and Freedoms prohibits sexual discrimination based on sexual orientation, stating that every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap. Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.

In British Columbia, section 13(1) of the Human Rights Code forbids discrimination on a number of grounds, including sexual orientation, and in a number of contexts, including employment.

Novia Scotia's Human Rights Act, Section 5(1)(n), prohibits discrimination on the basis of sexual orientation unless there is a bona fide occupational requirement allowing such discrimination.

New Brunswick's Human Rights Act has a general prohibition in its preamble on discrimination based on sexual orientation and section 3(1) specifically prohibits discrimination based on sexual orientation by employers unless there is a bona fide occupational requirement.

Similarly, Newfoundland and Labrador's Human Rights Code prohibits discrimination based on sexual orientation, specifically prohibiting such discrimination in the employment context at section 9(1) unless there is a bona fide occupational requirement.

Prince Edward Island's Human Rights legislation also lists sexual orientation as a prohibited ground of discrimination, specifically prohibiting discrimination in the employment context save for some genuine occupational qualification.

Interesting is the case of the legislature of the province of Alberta which declined to expressly outlaw discrimination on the basis of sexual orientation in the 1990s. The failure to include sexual orientation in its human rights statute was held by the Supreme Court of Canada to be discriminatory and unconstitutional and the Alberta legislature was directed to include sexual orientation as a prohibited ground of discrimination. This ruling was made pursuant to section 15 of the Canadian Charter of Rights and Freedoms which guarantees individuals equality under the law.

The Czech Republic implemented the European Directives within its borders by amending its Labour Code and Employment Act. A new comprehensive Act on Non-Discrimination is in the pipeline.

Cyprus enacted the Equal Treatment in its Employment and Occupation Law (2004) in order to comply with the EU Directives. Section 6 of this law forbids the indirect or direct discrimination or harassment of a person based on a number of factors including sexual orientation, with regard to employment.

Denmark's Act on Prohibition of Discrimination on the Labour Market 1996 protects employees against discrimination due to sexual orientation. ?Dominican Republic Law No. 49-2000 prohibits any kind of prejudice or discrimination based on sex, sexual conditions or sexual orientation.

France prohibits sexual orientation discrimination in all aspects of employment. Discrimination on the basis of a person's sexual orientation is covered by certain Code du Travail Articles of the Criminal Code which prohibit employers from taking into consideration a person's sexual orientation when recruiting new employees, making job offers, drafting terms and conditions of employment contracts, considering promotion/career progression and dismissal issues. The 2001 Discrimination Act has further extended the range of protection with regard to the careers of employees. This includes access to training, mobility, redeployment measures and the renewal of fixed-term contracts. Any action taken by an employer which is contrary to the stated legislation mentioned will be void and unenforceable.

In August of 2006 Germany implemented the Allgemeines Gleichbehandungsgesetz (AGG) which expressly prohibits discrimination based on race, ethnic origin, gender, religion or beliefs, disability, age or sexual identity (which includes the concept of sexual orientation). The law makes provision for compensatory damages for employees who are victims of discrimination.

Legislation in Holland mandates equal treatment by prohibiting discrimination on several grounds, including sexual orientation. This applies to all aspects of offering and terminating employment as well as to the terms and conditions of employment. The law also applies to the development of careers and the membership of professional organizations, including trade unions.

In Hungary, any discrimination on the basis of sexual orientation is prohibited. The Equal Treatment Act adopted in 2003 prohibits direct or indirect discrimination against any individual on the basis of a number of protected factors, including but not limited to gender, gender identity or sexual orientation. The Act also makes it unlawful to discriminate against applicants or current employees on the basis of sexual orientation, in particular, when advertising vacancies, determining employment conditions, taking measures before or during the employment, concluding or terminating the employment contract and acting with respect to training benefits, promotion and liability issues.

In Ireland, the Employment Equality Acts 1998 and 2004 prohibit discrimination on the basis of sexual orientation in the workplace and in particular, with regard to access to employment, conditions of employment, training or experience for or in relation to employment and promotion, or re-grading or classification on the grounds of sexual orientation. Section 33 permits positive action to prevent or compensate for disadvantages linked to the discriminatory factors including sexual orientation which are maintained or adopted with a view to ensuring full equality in practice between employees. Further, the Equal Status Acts 2000 to 2004 prohibit discrimination on grounds including sexual orientation and apply to people who buy and sell or provide a wide variety of goods and services or accommodation to the public and those who are in charge of educational establishments. Six discrimination cases were filed in 2005 on the basis of sexual orientation.

In Italy, EEC Directive n. 2000/78 relating to the equal treatment of employees was implemented in 2003 and had the effect of modifying the 1970 Worker Statute. According to that legislation, any act or agreement made by an employer that has the purpose of discriminating against an employee on the basis of sexual orientation is null and void. A judge may order the employer to stop the discriminatory conduct and remove the effects of the conduct and damages may be awarded.

In Japan, a country that is perceived to have an austere attachment to all things traditional, the Ministry of Justice is considering re-introducing a 2002 bill to the Diet entitled "Defending Human Rights Law" which will expressly prohibit discrimination on the basis of sexual orientation.

In Korea, pursuant to Article 2, paragraph 4 of the National Human Rights Act, sexual orientation is listed as one of the bases upon which one cannot be subject to discrimination. The National Human Rights Commission will make recommendations in the case of a breach and these can receive effective media attention depending on the circumstances.

On October 25, 2006, Latvia amended section 7 of its Labour Law ("Principle of Equal Rights") and section 29 ("Prohibition of Differential Treatment") by expressly ensuring that human rights are protected irrespective of a person's sexual orientation. The Act promises an equal right to work, to fair, safe and healthy working conditions and to fair work remuneration.

New Zealand's Human Rights Act 1993 and Employment Relations Act 2000 explicitly prohibit discrimination on the basis of sexual orientation. ?In Norway, direct and indirect discrimination in the workplace based on political affiliation, membership in a labor organization, sexual orientation, handicap or age is forbidden by the Working Environment Act. The prohibition against discrimination applies to all aspects of the employment relationship, including hiring, level of salary, training, promotion and termination. Compensation is payable in the event of violations. ?Section 59 of the Philippine National Police Reform and Reorganization Act of 1998 includes a provision mandating the implementation of a gender sensitivity program and prohibiting discrimination on the basis of gender or sexual orientation. The Government is currently considering a bill entitled "An Act Prohibiting Discrimination on the Basis of Sexual Orientation and Gender Identity and Providing Penalties Therefor" which cites the need to correct discrimination against lesbians and gays. It defines discriminating practices and provides penalties for violations. Another Bill entitled "The Equal Employment Opportunity Act of 2004", declares it unlawful for an employer, employment agency and labor organization to discriminate against any person on account of his/her sex, race, creed, age, appearance, sexual orientation, regional or ethnic origin, disability, weight or height.

Chapter II of the Constitution of the Republic of Poland sets forth a citizen's rights and duties, which include the right to equal treatment by public authorities. As a fundamental rule, no one may be discriminated against for any reason in political, social, or economic life. The Polish Labour Code follows the constitutional framework by specifically prohibiting any discrimination in employment relations based on age, sex, disability, race, nationality, political or religious beliefs, trade union membership, ethnic background and sexual orientation.

Article 13 of the Portuguese Constitution prohibits sexual orientation discrimination.

Even homosexuals in Romania, a country suffering from a torturous human rights history, enjoy protection from discrimination on the basis of sexual orientation. Discrimination in all its forms is prohibited by a 2000 Government Ordinance and also by the Labour Code and by the Unique Collective Bargaining Agreement concluded at the national level. Differences, exclusions, restrictions or preferences, based on race, nationality, language, religion, social category, convictions, sex, sexual orientation, age, handicap, every chronic disease, HIV and any other criterion used for restriction or without respecting the human rights and the fundamental freedoms, or any other rights stipulated by laws, in the political, economical, social or cultural domain, are prohibited and penalized. The discriminatory behaviour triggers civil and criminal responsibility.

In Switzerland, protection against discrimination based on sexual orientation stems from an employer's statutory obligation to respect and protect an employee's individuality pursuant to the Swiss Code of Obligations. This legislates the employer's responsibility for protection of the employee's individuality at work including the obligation to take all necessary measures to avoid discrimination by the employer himself as well as by his employees or third parties. Employees are protected against termination of their contracts for reasons inherent to their personality, such as race, religion, disability, age, and sexual orientation. Whilst the termination remains valid, it is considered abusive and compensation of up to 6 months' salary may be awarded.

In 2005, Spain became the third country in the world allowing homosexuals to marry in the same circumstances as heterosexuals, thereby fully acknowledging the civil rights of all persons, notwithstanding their sexual orientation.

Bermudian blacks have often looked to their brothers' struggle in South Africa for inspiration in their own struggle to achieve equality and justice. In 1993 Nelson Mandela's party, the African National Congress, was instrumental in ensuring that the interim South Africa Constitution prohibited discrimination on the basis of sexual orientation as well as promulgated a right to privacy. These provisions were maintained in the new Constitution, approved in 1996, due to the lobbying efforts of South Africans and the support of the ANC. South Africa thereby became the first nation in the world to explicitly prohibit discrimination based on sexual orientation in its Constitution.

Subsequently, in 1998, Parliament passed the Employment Equity Act. The law protects South Africans from unfair labour discrimination on the basis of sexual orientation, amongst other factors. As of 2000, similar protections were extended to public accommodations and services with the approval of the Promotion of Equality and Prevention of Unfair Discrimination Act.

Home Affairs Minister, Mapisa-Nqakula, said that South Africa needs to fight and resist all forms of discrimination and prejudice, including homophobia, and that Africans should continue to engage each other on such matters in a constructive way to lead the country towards "the kind of society that we all fought for as embodied within our Constitution".

He further noted the important role that men and women of homosexual and lesbian orientation had played in the ranks of the democratic forces' struggle for liberation. Bermuda has much to learn from all of these countries. In none of these countries did the scaremongering arguments by the far right serve to defeat the rising tide of international recognition that human rights laws must protect the interests of all citizens without fail.

The Bermuda Government's published policy on Sustainable Development states that Bermuda "must avoid the adoption of mutually irreconcilable objections" and must "be a society of social justice". The policy invites us to: "Imagine an island society where we celebrate Bermuda's diversity, promote social cohesion, provide equal rights for all, and care for the vulnerable who cannot care for themselves — Imagine an island — offering high quality employment, with internationally recognized labour rights and fair trade principles.

Imagine an island society where through constructive dialogue — we have levelled the playing field from its current imbalance, and freed residents from their — prejudices." If the Government is serious about following through on this policy as well as its human rights review policy enunciated above, then I urge Dr. Brown and the Bermuda Government to take heed of, and to follow, the example set by the rest of the civilized world. Expressly outlawing discrimination on the basis of sexual orientation is a necessary and vital step towards fulfilling Government's stated commitments and towards ensuring that we can pride ourselves on living in a civilized and non-hypocritical, just and humane society.

JULIANA SNELLING

Barrister & Attorney, Mello Jones & Martin

Cc: Hon. Premier, Dr. Ewart Brown Cc: Hon Attorney General Mr. Philip Perinchief Cc: Hon Minister of Community & Cultural Affairs Mr. Wayne Perinchief Cc: Chairperson, Human Rights Commission, Ms. Venous Memari