LGBT rights in Gibraltar

LGBT rights in Gibraltar
Location of  Gibraltar  (dark green)

– in Europe  (light green & dark grey)
– in the European Union  (light green)  –  [Legend]

Same-sex sexual intercourse legal status Legal since 1993,
age of consent equal since 2012
Gender identity/expression Transsexual persons not allowed to change legal gender
Military service LGBT people allowed to serve openly
Discrimination protections Sexual orientation only (in employment only) since 2005
Family rights
Recognition of
relationships		 Civil partnerships since 2014;
Same-sex marriage since 2016
Adoption Legal since 2014

Lesbian, gay, bisexual and transgender (LGBT) rights have evolved significantly in the past decades in the British Overseas Territory of Gibraltar. Same-sex sexual activity has been legal since 1993 and the age of consent was equalised to 16 in 2012. The Supreme Court of Gibraltar ruled in April 2013 that same-sex couples have the right to adopt. Civil partnerships have been available to both same-sex and opposite-sex couples since March 2014. In October 2016, Gibraltar voted to legalise same-sex marriage. The Civil Marriage Amendment Bill 2016 was passed unanimously in Parliament.[1] The law received royal assent on 1 November and took effect on 15 December 2016.[2][3]

Legality of same-sex sexual activity

In Gibraltar, the age of consent for all sexual activity regardless of sexuality and/or gender was equalised at 16 in April 2011, when under Supreme Court order the previous law – under which the age of consent for gay males was 18 – was found to be unconstitutional. Heterosexual anal sex was decriminalised at the same time and the age of consent set at 16.[4] Gay male sexual conduct was decriminalised in 1993.

Political campaigning prior to the 2007 elections was prominent with equality rights organisation Gib Gay Rights (GGR),[5] headed by human rights campaigner Felix Alvarez openly challenging the incumbent Chief Minister, Peter Caruana, for more rights in Gibraltar for gay and lesbian people, and others who are discriminated against.[6]

Campaigning on the issue of an equal age of consent of 16 had been strongly undertaken.[7][8][9]

The issues were raised at the Foreign Affairs Committee enquiry into the overseas territories in 2008, where they concluded:

We recommend that the Government should take steps to ensure that discrimination on the basis of sexual orientation or gender status is made illegal in all overseas territories.[10]

On 18 May 2009, the Gibraltar Parliament rejected a private member's bill, proposed by the Minister for Justice, to equalise the age of consent. It was opposed by the GSLP/Liberal opposition for technical reasons due to the way the bill was written. The Government gave its MPs a free vote on the bill. It was defeated, as government MPs were split on its approval, and the opposition members all voted against it.

The influential Gibraltar Women's Association (GWA) has called for the age consent to be levelled at 18.[11]

On 1 October 2009, new proposed legislation would enable the Government of Gibraltar to ask the Supreme Court to test whether existing or draft laws are compatible with the Constitution. This would provide a simplified, purpose-built mechanism to deal with contentious issues such as the age of consent.[12]

In March 2010, the Government of Gibraltar sought an opinion from the Court to see if the unequal age of consent was discrimination under the principles of the European Council.[13][14]

On 1 April 2010, Secretary of State for Foreign and Commonwealth Affairs David Miliband pointed out that if a British Overseas Territory is unwilling to meet "international obligations" such as equalising the age of consent it may be imposed by an Order in Council.[15][16][17][18]

On 8 April 2011, the Supreme Court of Gibraltar ruled that a higher age of consent of 18 for gay sex was unconstitutional, and thus mandated an equal age of consent of 16, while at the same time also decriminalising heterosexual anal sex.[4]

In August 2011, the gender-neutral Crimes Act 2011 was approved, which sets an equal age of consent of 16 regardless of sexual orientation, and reflects the recent Supreme Court decision in statute law.[19] The law took effect on 23 November 2012.[20]

Recognition of same-sex unions and parenting rights

Adoption and assisted reproduction

On 10 April 2013, the Supreme Court ruled that section 5 (2) of the Adoption Act was in violation of the Gibraltar Constitution thus in effect, de jure legalising LGBT adoption in Gibraltar. The Government announced that they planned to amend the law as soon as possible and that the Care Agency would take appropriate measures to allow same-sex couples to adopt.[21][22] The Government did so the following year as part of its civil partnership law (see below).

In June 2017, the Gibraltar Health Authority approved an amendment to its In Vitro Fertilisation Policy to include female same-sex couples.[23][24]

Civil partnerships

In March 2014, the Parliament passed a civil partnership law, granting same-sex couples most of the rights of marriage, including allowing the adoption of children by civil partners, as mandated by the court ruling in 2013.[25][26][27][28][29]

Same-sex marriage

Same-sex marriage became an issue of interest for the Government after their re-election in 2015. A command paper to that effect was published in December 2015 and a public consultation was held, whilst talk of a possible referendum on the issue was not ruled out.[30][31] The leader of the opposition Social Democrats Party announced his support for same-sex marriage in January 2016,[32][33] days before the Government ruled out a referendum.[34] An inter-ministerial committee was set up in March 2016 to listen to stakeholder concerns and more than 3,400 responses to the discussion were received.[35][36] The Government published a bill to legalise same-sex marriage in August 2016.[37][38][39]

On 26 October 2016, the Civil Marriage Amendment Bill 2016 was passed in the Gibraltar Parliament with unanimous support from all 15 members present during the vote.[40] The bill received royal assent on 1 November and took effect on 15 December 2016.[2][3] The first legally recognized same-sex marriage in Gibraltar took place the next day.[41]

Discrimination protections

The 2006 Constitution does not mention sexual orientation. Proposals, made public in early March 2002, specifically omitted direct reference to "sexual orientation" as a category to be constitutionally protected. Other categories are clearly included.[42]

The Gibraltar Socialist Labour Party Government, elected in 2011, announced plans to include sexual orientation in the goods and services anti-discrimination law (sexual orientation is already covered in employment anti-discrimination law since 2005). The party renewed this commitment in their manifesto for the 2015 election, in which they were re-elected.[30]

Hate crime legislation

A bill to amend the Crimes Act 2011, that would criminalise both hatred and harassment on the ground of sexual orientation as a hate crime, was approved by the Gibraltar Parliament on 19 September 2013 and given royal assent on 25 September. The law took effect on 10 October 2013.[20][43]

Summary table

Same-sex sexual activity legal (Since 1993)
Equal age of consent (Since 2012)
Anti-discrimination laws in employment (Since 2005)
Anti-discrimination laws in the provision of goods and services (Under consideration)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) (Since 2013)
Same-sex marriage(s) (Since 2016)
Recognition of same-sex couples (civil partnership) (Since 2014)
Stepchild adoption by same-sex couples (Since 2014)
Joint adoption by same-sex couples (Since 2014)
LGBT people allowed to serve in the military (Responsibility of the British Armed Forces)
Right to change legal gender (Under consideration)
Access to IVF for lesbian couples (Since 2017)
Commercial surrogacy for gay male couples (Banned for heterosexual couples as well)
MSMs allowed to donate blood

See also

References

  1. ↑ "Gibraltar votes unanimously to legalise same-sex marriage". Gay Times. 26 October 2016. Retrieved 9 November 2016.
  2. 1 2 "Civil Marriage Amendment Act 2016 [No. 22 of 2016]" (PDF). Government of Gibraltar. 1 November 2016. Archived from the original (PDF) on 17 December 2016.
  3. 1 2 "Civil Marriage Amendment Act 2016 - Notice of Commencement" (PDF). Government of Gibraltar. Archived from the original (PDF) on 17 December 2016.
  4. 1 2 JUDGE RULES: AGE OF CONSENT IS 16 FOR ALL Archived 27 March 2012 at the Wayback Machine.
  5. ↑ "Equality Rights Ggr". Equalityrightsggr.blogspot.com. Retrieved 2014-04-05.
  6. ↑ GGR rallies supporters to act in Election unity Retrieved on 23 August 2007.
  7. ↑ GGR Makes Submission to UK Parliament Archived 17 January 2008 at the Wayback Machine.
  8. ↑ PM Brown To Take Up Gay Age of Consent Inequality in Gibraltar Archived 17 October 2007 at the Wayback Machine.
  9. ↑ GGR Welcomes British PM’s Intervention on Age of Consent Archived 17 January 2008 at the Wayback Machine.
  10. ↑ "2008 Overseas Territories Review".
  11. ↑ "Gibraltar Women's Association view". Archived from the original on 28 July 2011.
  12. ↑ New Legislation Archived 27 February 2012 at the Wayback Machine.
  13. ↑ "Gibraltar court to rule on gay age of consent". Retrieved 27 May 2018.
  14. ↑ Gibraltar Chronicle - Courts set to decide on gay consent age Archived 27 February 2012 at the Wayback Machine.
  15. ↑ "Britain 'could force Gibraltar to adopt equal age of consent'". Retrieved 27 May 2018.
  16. ↑ "Gibraltar Chronicle - The Independent Daily First Published 1801". Chronicle.gi. Archived from the original on 27 February 2012. Retrieved 2014-04-05.
  17. ↑ "Gibraltar Chronicle - The Independent Daily First Published 1801". Chronicle.gi. Archived from the original on 7 April 2014. Retrieved 5 April 2014.
  18. ↑ Gay Group Accuses Chief Minister of Homophobic Crusade "At Tax Payers Expense" Archived 5 April 2010 at the Wayback Machine.
  19. ↑ "Gibraltar Chronicle - The Independent Daily First Published 1801". Chronicle.gi. Archived from the original on 3 November 2013. Retrieved 2014-04-05.
  20. 1 2 CRIMES ACT 2011
  21. ↑ Gibraltar court rules denial of joint adoption by lesbian couple illegal Archived 2 April 2015 at the Wayback Machine.
  22. ↑ "Gibraltar gives green light to gay adoptions". 11 April 2013. Retrieved 27 May 2018.
  23. ↑ Team, YGTV. "Jun 08 - IVF Treatment To Be Made Available To Female Same-Sex Couples". Retrieved 27 May 2018.
  24. ↑ "qreativos". qreativos. Retrieved 27 May 2018.
  25. ↑ "Gibraltar approves civil partnerships bill". Retrieved 27 May 2018.
  26. ↑ "CIVIL PARTNERSHIP ACT 2014" (PDF). Retrieved 27 May 2018.
  27. ↑ "CIVIL PARTNERSHIP (FEES) REGULATIONS 2014" (PDF). Retrieved 27 May 2018.
  28. ↑ "CIVIL PARTNERSHIP RULES 2014" (PDF). Retrieved 27 May 2018.
  29. ↑ "CIVIL PARTNERSHIP" (PDF). Retrieved 27 May 2018.
  30. 1 2 GSLP/Liberals Manifesto 2015, pages 95-96
  31. ↑ "Referendum on the question of gay marriage has apparently not been ruled out". Retrieved 27 May 2018.
  32. ↑ "Opposition would support same-sex marriage legislation, says Feetham". Retrieved 27 May 2018.
  33. ↑ Team, YGTV. "Jan 18 - New Year's Message By The Leader Of The Opposition". Retrieved 27 May 2018.
  34. ↑ Team, YGTV. "Jan 20 - ERG Welcomes Parliamentary Announcement". Retrieved 27 May 2018.
  35. ↑ "Over 3,400 responses to 'Equal Marriage' Command Paper - Gibraltar Chronicle". chronicle.gi. Retrieved 27 May 2018.
  36. ↑ "Nearly 3,500 submissions on equal marriage command paper". Retrieved 27 May 2018.
  37. ↑ "Bill to allow civil marriage between same-sex couples". Retrieved 27 May 2018.
  38. ↑ Cañas, Jesús A. (15 August 2016). "Gibraltar puts same-sex marriage bill before Parliament". Retrieved 27 May 2018 – via elpais.com.
  39. ↑ "Civil Marriage Amendment Act 2016" (PDF). Retrieved 27 May 2018.
  40. ↑ "Equal marriage bill passed by Parliament". GBC: Gibraltar News. 26 October 2016. Archived from the original on 17 December 2016.
  41. ↑ "First same-sex marriage takes place on the Rock". GBC: Gibraltar News. 16 December 2016. Archived from the original on 17 December 2016.
  42. ↑ The Rock of prejudice Retrieved on 23 August 2007.
  43. ↑ "Criminal Justice (Amendment) Act 2013" (PDF). Retrieved 27 May 2018.
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