Governor Martyn Roper has assented to the Civil Partnership Law, making same-sex partnerships legal in the Cayman Islands.
“Today we will end the discrimination being suffered by Caymanians and others on our islands whilst protecting the institution of marriage,” Roper said in a statement Friday.
“This action does not alter or undermine the strong Christian heritage and values of the people of the Cayman Islands. No-one is being asked to change their long-held beliefs,” he said.
Roper, in his statement, said, in line with instructions from UK government ministers to use his reserved powers under Section 81 of the Constitution, he has also assented to 11 consequential pieces of legislation.
The law changes will take effect once gazetted on Friday.
However, he said, “operationally the Civil Service will require a delay of 21 days before starting to accept and process applications for registration of civil partnerships”.
The law, which was formerly titled the Domestic Partnership Bill, was defeated in the Legislative Assembly on 29 July.
Lawmakers voted down the bill, nine to eight. However, Roper, using his reserved powers to write legislation, opted to reintroduce the bill and assent to it following 21 days of public consultation.
The governor, in his statement, said a number of amendments were made to the draft legislation discussed by the Legislative Assembly.
“These were aimed principally at strengthening the effectiveness of the Legislation. As previously announced, the title has changed to Civil Partnership in response to feedback received. A number of pieces of consequential legislation have been updated to ensure they apply to those who enter civil partnerships,” he said.
Among the changes is a provision to view the names placed on the Civil Partnerships Register. The registrar may allow a person or organisation with an adequate reason to view the Civil Partnerships Register.
In deciding to grant access, the registrar must consider the nature of the applicant’s interest; the sensitivity of the information; the use to be made of the information; and any other prescribed factors.
The legislation also mandates that public notices of civil partnerships be displayed for seven days, down from a proposed 14 days.
Roper said he hopes that everyone on the islands can now move forward with their lives and come together as a community.
“Let us refocus our energies on pressing matters, such as responding to the global pandemic, rebuilding our economy and protecting our environment,” he said.
The governor urged everyone to “recognise that same-sex couples have the right to legal and financial protection like everyone else. Accepting diversity and difference shows to the world that we are a caring community based on mutual respect, tolerance and equality for all.”
He also reiterated that Cayman retains its full autonomy for domestic issues, including in education and immigration matters.
“The UK fully respects Cayman’s autonomy in domestic affairs. Indeed, this will be made even clearer in the package of constitutional changes that are likely to be adopted later this year. UK intervention in this manner is extremely rare,” he added.
Addressing fears within the community that this will be the first of many instances in which the UK, through the governor’s reserved powers, will enact law changes, Roper said, “As Governor, it is not a position I would ever have wanted to be in. Abolition of the death penalty in 1991 and legalising homosexuality in 2000 were previous examples where the UK intervened to ensure its legal and international obligations, in a British Overseas Territory, were upheld. It is wrong to suggest that the UK will seek additional pretexts for intervening.”
Roper reiterated his earlier contention that the UK had “no option” but to step in to ensure Cayman complies with the rule of law and international obligations under the terms of the European Convention on Human Rights.
He said Cayman is required to provide a legal framework for same-sex couples that is functionally equivalent to marriage.
“That is necessary to comply with our own courts and our Constitution. The Government of the Cayman Islands and the Attorney-General have accepted that this is a legal requirement that cannot be ignored. As the Court of Appeal stated – that Cayman had such an obligation has been apparent for several years. An important principle in our Constitution and Bill of Rights is the protection of minorities. That principle protects all of us, now and in the future. We cannot pick and choose which rights are protected,” he said in his statement.
That Court of Appeal ruling was issued in the Chantelle Day and Vickie Bodden Bush judicial review case last year after the government challenged Chief Justice Anthony Smellie’s decision to rewrite the Marriage Law legalising same-sex marriages.
“UK Ministers instructed me to take this action to uphold the rule of law and comply with the Cayman Islands Court of Appeal Judgment in November 2019. The Court of Appeal declared that same sex-couples were entitled, expeditiously, to legal protection in the Cayman Islands, which is functionally equivalent to marriage,” the governor said.
“The Court also declared that in the absence of expeditious action by the Legislative Assembly, they would expect the United Kingdom Government to recognise its legal responsibility and ‘take action to bring this unsatisfactory state of affairs to an end’.”
Roper also made public Baroness Sugg’s letter responding to Opposition Leader Arden McLean’s concerns which he raised last month when he wrote to Foreign Secretary Dominic Raab.
McLean had questioned the use of the governor’s reserved powers and the process being used to implement civil partnerships in Cayman.
Sugg, in her letter to McLean dated 28 Aug., defended exercising the use of the governor’s reserved powers.
“I recognise that same-sex partnership is seen as a controversial issue by many in the Cayman Islands and that feelings run high on both sides. I firmly believe that the strongest, safest and most prosperous societies are those in which all citizens can live freely without fear of discrimination, and where all citizens, including members of the LGBT community, can play a full and active part in society. I also believe that the rule of law must be upheld in the UK and all of the Overseas Territories,” Sugg said in the letter.
The Cayman Compass reached out to Premier Alden McLaughlin for comment, he later issued a statement.
McLean, in a short message to the Compass, said the Official Opposition will be issuing a statement on Monday which will address both the governor’s assent and the Sugg letter.
Meanwhile, Day issued a brief statement to the Compass on the Civil Partnership Law, saying, “The Governor should never have been put in the position to have to use his reserve powers under the Constitution to uphold the rule of law. Similarly, the Government should not have wasted money and our time dragging us through the court system for an inevitable result.”
That being said, she added, “we recognise this as a huge achievement and step forward on the road to equality for all in Cayman”.
Colours Cayman, in a statement released Friday afternoon, welcomed the assent of the new law, saying as an organisation, it appreciated the opportunity provided by the governor to submit comments on the bill and other amendments.
“While the law certainly falls short of providing full equality to same-sex couples, it is nevertheless a significant step forward for all of the Caribbean region and the Cayman Islands has now become something of a beacon of hope. Ours has become the only commonwealth jurisdiction in the region to have made such a step by legislation. Legislation that affords same-sex couples, finally, the equivalent rights to which they are entitled and that have long been afforded to different-sex couples through marriage,” the statement said.
The non-profit thanked the Attorney General’s Chambers and the Governor’s Office for facilitating an open discussion with it “to deliver the best possible outcome for the Cayman Islands” following the Court of Appeal’s decision last November.
However, it said its view has not changed on the issue of same-sex marriage.
“We still support the fight led by Chantelle and Vickie for absolute marriage equality and continue to recognise that as the only true means of achieving equality,” it added.
Colours Cayman said this week it has submitted an application to intervene in the Privy Council in support of the Day and Bodden Bush case.
“We are confident that the law is on our side – it is a matter of common sense that a doctrine born in 1896 with Plessy v Ferguson, case in which the US Supreme Court upheld racial segregation under the separate but equal doctrine and buried by the same court in 1954 with Brown v Board of Education has no room to breed and brew in the Cayman Islands in 2021,” it said.
Civil Partnership Law and Consequential Legislation
1. Legislation Gazette No. 64 of 2020;
2. Civil Partnership Law, 2020;
3. Adoption of Children (Amendment) Law, 2020;
4. Evidence (Amendment) Law, 2020;
5. Health Insurance (Amendment) Law, 2020;
6. Immigration (Transition) (Amendment) (No.2) Law, 2020;
7. Mental Health (Amendment) Law, 2020;
8. National Pensions (Amendment) (No.2) Law, 2020;
9. Penal Code (Amendment) Law, 2020;
10. Protection from Domestic Violence (Amendment) Law, 2020;
11. Public Service Pensions (Amendment) Law, 2020;
12. Succession (Amendment) Law, 2020; and
13. Wills (Amendment) Law, 2020.