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 activity legal? Legal since 1993,
age of consent equalised since 2012
Gender identity/expression Transsexual persons not allowed to change legal gender
Military service Gays and lesbians allowed to serve openly
Discrimination protections Sexual orientation only (in employment only) since 2005
Family rights
Recognition of
relationships		 Civil partnerships since 2014
Adoption Legal since 2014

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 for 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]

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.[2] Gay male sexual conduct was decriminalised in 1993.

Political campaigning prior to the 2007 Election was prominent with equality rights organisation Gib Gay Rights (GGR),[3] 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.[4]

Campaigning on the issue of an equal age of consent of 16 had been strongly undertaken.[5][6][7]

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.[8]

On 18 May 2009, the Gibraltar Parliament approved by Government majority leave for a Private member's bill, proposed by the Minister for Justice, to equalise the age of consent. This was opposed by the GSLP/Liberal opposition for technical reasons due to the way the Bill was written. The Government gave its Members of Parliament a free vote on the Bill. It was defeated, as the Government members 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.[9]

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.[10]

In March 2010, the Government of Gibraltar was seeking an opinion from Court of the age of consent legal issue to see if the law is discrimination under the principles of the European Council.[11][12]

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.[13][14][15][16]

On 8 April 2011, the Supreme Court of Gibraltar ruled that a higher age of consent of 18 for all gay sex was deemed unconstitutional, and thus mandated an equal age of consent of 16. Also at the same time decriminalised heterosexual anal sex and set the age of consent at 16 for that as well.[2]

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 or law.[17] The law took effect on 23 November 2012.[18]

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 has announced that they plan to amend the law as soon as possible and the Care Agency will take appropriate measures to allow gay couples to adopt.[19][20] The government did so the following year as part of its civil partnership law (see below).

Additionally, lesbian couples can get access to artificial insemination.

Civil partnership

In March 2014, the Parliament passed a civil partnership, 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.[21][22][23][24][25]

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.[26][27] The leader of the opposition Social Democrats Party announced his support for same-sex marriage in January 2016[28][29] days before the government ruled out a referendum.[30] 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.[31][32] The government published a bill to legalise same-sex marriage in August 2016.[33][34][35] On 26 October 2016, the Marriage Bill was passed in the Gibraltar Parliament with unanimous support from all 15 members present during the vote. An amendment to remove a controversial part of the Bill was defeated 11 to 4 with only some of the Opposition Members voting in favor.[36][37][38][39] The Bill now awaits Royal Assent.

Discrimination protections

The 2006 Constitution does not mention sexual orientation. The proposals, made public early March 2002, specifically omitted direct reference to "sexual orientation" as a category to be constitutionally protected. Other categories are clearly included.[40]

The Gibraltar Socialist Labour Party government elected in 2011, has announced plans to include sexual orientation under the goods and services anti-discrimination section (sexual orientation is already covered in anti-discrimination law under employment since 2005). The party renewed this commitment in their manifesto for the 2015 election, in which they were re-elected.[26]

Hate crime legislation

The bill to amend the Crimes Act 2011, that will 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.[18][41]

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; awaiting Royal Assent)
Recognition of same-sex couples (civil partnership) (Since 2014)
Step-child adoption by same-sex couples (Since 2014)
Joint adoption by same-sex couples (Since 2014)
Gays allowed to serve in the military (In the British Armed Forces since 2000)
Access to IVF for lesbians
Commercial surrogacy for gay male couples (Banned for heterosexual couples as well)
Right to change legal gender (Under consideration)
MSMs allowed to donate blood

See also

References

  1. ↑ "Gibraltar votes unanimously to legalise same-sex marriage". Gay Times. 26 October 2016. Retrieved 09 November 2016. Check date values in: |access-date= (help)
  2. 1 2 JUDGE RULES: AGE OF CONSENT IS 16 FOR ALL
  3. ↑ "Equality Rights Ggr". Equalityrightsggr.blogspot.com. Retrieved 2014-04-05.
  4. ↑ Retrieved on 23 August 2007.
  5. ↑ Archived 17 January 2008 at the Wayback Machine.
  6. ↑ PM Brown To Take Up Gay Age of Consent Inequality in Gibraltar
  7. ↑ Archived 17 January 2008 at the Wayback Machine.
  8. ↑ "2008 Overseas Territories Review".
  9. ↑ "Gibraltar Women's Association view".
  10. ↑ New Legislation
  11. ↑ Pinknews.com - Gibraltar court to rule on gay age of consent
  12. ↑ Gibraltar Chronicle - Courts set to decide on gay consent age
  13. ↑ Britain ‘could force Gibraltar to adopt equal age of consent’
  14. ↑ "Gibraltar Chronicle - The Independent Daily First Published 1801". Chronicle.gi. Archived from the original on 27 February 2012. Retrieved 2014-04-05.
  15. ↑ "Gibraltar Chronicle - The Independent Daily First Published 1801". Chronicle.gi. Retrieved 2014-04-05.
  16. ↑ Gay Group Accuses Chief Minister of Homophobic Crusade "At Tax Payers Expense"
  17. ↑ "Gibraltar Chronicle - The Independent Daily First Published 1801". Chronicle.gi. Archived from the original on 3 November 2013. Retrieved 2014-04-05.
  18. 1 2 CRIMES ACT 2011
  19. ↑ Gibraltar court rules denial of joint adoption by lesbian couple illegal
  20. ↑ Gibraltar gives green light to gay adoptions
  21. ↑ Gibraltar approves civil partnerships bill
  22. ↑ CIVIL PARTNERSHIP ACT 2014
  23. ↑ CIVIL PARTNERSHIP (FEES) REGULATIONS 2014
  24. ↑ CIVIL PARTNERSHIP RULES 2014
  25. ↑ CIVIL PARTNERSHIP
  26. 1 2 GSLP/Liberals Manifesto 2015, pages 95-96
  27. ↑ Referendum on the question of gay marriage has apparently not been ruled out (GBC)
  28. ↑ Opposition would support same-sex marriage legislation, says Feetham (GBC)
  29. ↑ Jan 18 - New Year’s Message By The Leader Of The Opposition (YGTV)
  30. ↑ Jan 20 - ERG Welcomes Parliamentary Announcement (YGTV)
  31. ↑ Over 3,400 responses to ‘Equal Marriage’ Command Paper (Gibraltar Chronicle)
  32. ↑ Nearly 3,500 submissions on equal marriage command paper (GBC)
  33. ↑ Bill to allow civil marriage between same-sex couples
  34. ↑ Gibraltar puts same-sex marriage bill before Parliament
  35. ↑ Civil Marriage Amendment Act 2016
  36. ↑ ERG: ‘We are proud of Gibraltar!’ (ERG)
  37. ↑ Equal marriage bill passed by Parliament (GBC News)
  38. ↑ GIBRALTAR: Same-Sex Marriage Approved Unanimously (JoeMyGod)
  39. ↑ BREAKING NEWS: Same sex marriage is now legal in #Gibraltar - Parliament votes 15-0 in favour (YGTV tweet)
  40. ↑ The Rock of prejudice Retrieved on 23 August 2007.
  41. ↑ Criminal Justice (Amendment) Act 2013
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