A recent judgment from Europe’s highest human rights court may force the Cayman Islands to change its stance on the legal union of lesbian, gay, bisexual or transgender couples.
A ruling from the European Court of Human Rights last week found Italy in breach of established human rights principles for failing to offer enough legal protection to same-sex couples. Italy is one of the few Western European countries that maintains a national ban on same-sex marriages.
The European court ruled on July 21 that by failing to introduce new legislation, Italy’s government breached Article 8 – the right to private and family life – of the European Convention on Human Rights.
The Cayman Islands Human Rights Commission said Monday that Cayman should take note of the European Court’s decision.
“Cayman’s Constitution [Order 2009] explicitly defines marriage as a union between persons of different sexes,” the rights commission said in a statement. “However, this does not prevent the enactment of legislation to recognize same-sex unions and to provide same-sex couples in stable relationships with the opportunity to access the same rights and obligations which married couples enjoy.
“The Human Rights Commission calls upon the government to enact such legislation [regarding civil unions]. In the event that it fails to do so, this recent judgment [from the European court] is likely to mean that Cayman is in breach of its obligations under the convention and certainly that it is more vulnerable to a successful challenge in the court.”
A civil union is a legally recognized arrangement that is similar to marriage. The unions can be referred to by many other names, including legal partnerships, domestic partnerships and common-law marriage.
The level of rights similar to a marriage that are afforded a couple in a civil union depends on the legislation of the country in which the union was formed. Some countries allow same-sex couples, or common-law married heterosexual couples, to adopt children, for instance, while others forbid it.
“The [European] court considered that legal protection and recognition should be available to same-sex couples in a stable, committed relationship as it was for couples of different sexes,” the Human Rights Commission noted.
Legal recognition of a union for same-sex couples can serve to protect a number of rights and obligations that married couples have, including laws regarding financial support, child maintenance payments and inheritance/estate rights, among others.
Cayman, as a British Overseas Territory, falls within the jurisdiction of the European Court of Human Rights.
“[Last week’s] judgment is in line with that issued by the U.S. Supreme Court last month,” the HRC noted. “[The U.S.] court’s judgment dealt specifically with marriage, however, many of the same arguments apply.”
Cayman’s being required to follow international protocols regarding the recognition and legal acceptance of civil unions was alluded to in a number of public statements earlier this year.
Robert Wintemute of King’s College in London specifically referred to the Italian court case during a speech to the Truman Bodden Law School in January. Mr. Wintemute said at the time that the Italy case could create a precedent that would apply to the Cayman Islands.
“If the European Court of Human Rights says Italy has to have it, that will mean Cayman Islands too,” Mr. Wintemute told the Cayman Compass during an interview. “You can’t appeal and say we are the Cayman Islands, we are different, we have a different culture. They will have already taken that into account.”
He said it would be in the country’s best interests to introduce a package of reforms updating its legislation to comply with the European Convention rather than waiting to be challenged in court. He also recommended legislators go one step further and introduce a civil partnership law and anti-discrimination legislation – steps that are not yet required by the convention but could soon become mandatory, depending on the outcome of upcoming cases.
In addition, he advised Cayman to look at other laws currently on the books related to lesbian, gay, bisexual and transgender people that may not be compliant with human rights. For instance, the higher age of consent for homosexual sex, laws restricting group sex for gay and lesbian people and the civil union ban – particularly as it relates to local Immigration Law – are all outside what the European Convention on Human Rights establishes.