The past has been marked by great civil rights and feminist movements. . However the movement for gay rights, which is still in progress, seems to have lacked in the much-needed support from the general population and the media. Despite this, the summer of 2010 has managed to be successful for the Lesbian, Gay, Bisexual and Transgender (LGBT) community within the law of the United Kingdom, the European Union and the United States of America. In the UK, the Supreme Court has ruled that gay asylum seekers could not be forced back to their home countries and be made to be discrete over their sexuality within society (HJ (Iran) v Secretary of State for the Home Department; HT (Cameroon) v Secretary of State for the Home Department). One of the appellants, HT, is a Cameroonian citizen and he comes from a country well known for criminalising homosexuality. As a country it institutionalises homophobia, with the LGBT community fearing police brutality and living in a culture of fear and persecution. The Court of Appeal previously ruled that in this case, the appellants would not face a “well-founded fear of persecution” in Cameroon and therefore will not be entitled to protection under the 1967 Refugee Convention protocol. This is due to the assumption that HT would conceal his sexuality if he returns. If he does so successfully, HT would not be under the attention of the state and would not need to fear persecution; thus HT would be able to live a “reasonably tolerable” life. The Supreme Court over-ruled this, holding that the “reasonable tolerability” test is contrary to the Convention and thus is not good law.
This judgment enforces many of the key principles which we value as a community within the UK, such as freedom of association and self expression which is denied to these claimants by their home countries. One of the main aims of the Convention is to prevent individual suffering and persecution which would be faced by the appellants if they were to return back. Lord Hope pointed out that this does not include discrimination by their family or the risk of social disapproval. The fundamental rationale for the Convention is to counteract discrimination; the judges ruled that the Court of Appeal was wrong to suggest that the asylum seekers would have to take steps to avoid offending their persecutors. Thus a new test has been laid out which does not expect the applicant to conceal his conduct, but if he does hide his sexuality to find the reasons behind him to doing so. The new test has been hailed as a much more progressive and adaptive in bringing an end to the discriminatory process used by the immigration authorities.
Further progression has been made in JM v United Kingdom. This case, with which Liberty intervened, was presented before the European Court of Human Rights. It reinforces the unlawfulness of discriminating a person on the grounds of their sexual orientation. In the UK, prior to the Civil Partnership Act 2004, heterosexual couples paid less in child support than couples in a homosexual relationship. The claimant, JM had to pay more in child support because of her homosexual relationship in 2001 and thus brought the UK to trial for, breaching Article 14 of the European Convention. Her argument was upheld by the first three levels of UK jurisdiction before being overturned by the House of Lords in 2006. The European Court of Human Rights found that the UK had treated JM differently, thus breaching Article 14, and awarded damages. The Civil Partnerships Act 2004 has now been active at the forefront in reducing discrimination against homosexual couples within the UK. Hopefully, it may set a precedent in other European countries who have yet to iron out their laws entitling their LGBT community equality.
Finally, it appears that we (English and Welsh) happen to be at the forefront in the LGBT fight for equality in comparison to the Americans. Smith and Grady v UK lifted the bar preventing homosexual people from being abe to apply for duty in the Army and the Navy; the case also contributed to enacting the Armed Forces Code of Social Conduct in January 2000. The US however has barred against the recruitment of homosexual personnel in a “don’t ask, don’t tell” policy. In the US District Court, Judge Phillips declared the guidelines to be unconstitutional, granting an injunction barring the government from enforcing the practice with disregard to Obama’s current White House’s plans for a slow draw out from this policy. The Judge noted that troops suspected of being gay were allowed to serve out their deployments abroad, with investigations and discharges not occurring until their return which demonstrates “that the policy is not necessary.”
The gay rights movement in the Western world is not at all dead, and I suspect it will continue to establish further legal and social equality. In the future I hope to see bodies which function in a public nature having to alter their policies which may have previously barred or discriminated against the LGBT community. The recent Charity Commission’s rejection of the attempt by a Leeds based Catholic adoption agency restricting its services to heterosexual couples shows there is a long way to go but there is a glimmer of hope.