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LGBTQ rights in Bermuda

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Lesbian, gay, bisexual, and transgender (LGBT) people in Bermuda, a British Overseas Territory, face legal challenges not experienced by non-LGBT residents. Homosexuality is legal in Bermuda, but the territory has long held a reputation for being homophobic and intolerant.[1][2] Since 2013, the Human Rights Act has prohibited discrimination on the basis of sexual orientation.

LGBTQ rights in Bermuda
Bermuda
StatusLegal since 1994
age of consent equalised in 2019, but the age of consent for both heterosexual and homosexual anal sex is still higher than that for other types of sexual intercourse
MilitaryYes
Discrimination protectionsSexual orientation protections (see below)
Family rights
Recognition of relationshipsDomestic partnerships since June 2018;
Same-sex marriage was legal from May 2017 to June 2018 and again from November 2018 until March 2022
AdoptionFull adoption rights since 2015

Bermuda has been in the international spotlight in recent times over the legalisation of same-sex marriage. Such marriages were first legalised by the Supreme Court in May 2017. However, the Government subsequently passed a law banning same-sex marriage and replacing it with domestic partnerships.[3] This law was then struck down in June 2018 by the Supreme Court and again in November 2018 by the Court of Appeal, and since the latter ruling same-sex couples have been free to marry in the territory.[3] On 14 March 2022, however, the Judicial Committee of the Privy Council ruled against the Court of Appeal, banning same-sex marriage once again.[4]

Law regarding homosexual activity

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Prior to 1994, anal sex and oral sex (for both homosexuals and heterosexuals) were illegal and punishable by up to ten years' imprisonment. Lesbian activity has never been illegal in Bermuda. Following the passing of the Stubbs Bill in 1994, consensual sexual conduct in private was legalised in Bermuda, but with a higher age of consent for gay male sexual conduct at 18, than the age of consent of 16 for heterosexual and lesbian sexual conduct. This age of consent discrepancy was in clear violation of the European Convention on Human Rights.[5] On 1 November 2019, a law took effect, amending the Criminal Code establishing a universal age of consent for consensual anal intercourse at 18 years.[6][7][8][9] As of 2022, age of consent is still not equal, 18 for consensual anal intercourse but 16 for other sexual activity.

A provision in the Criminal Code regarding gross indecency between men was repealed in 2019.[9]

Recognition of same-sex relationships

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Main articles: Same-sex marriage in Bermuda and Bermudian same-sex union and marriage referendum, 2016

Same-sex marriage is not legally available in Bermuda since 2022.

In November 2015, the Supreme Court of Bermuda ruled to allow binational same-sex partners equal rights in employment and benefits as all other spouses in Bermuda.[10] In response, politicians decided to hold a non-binding referendum on same-sex marriage, which was held in on 23 June 2016.[11][12][13] Voters were asked two questions; whether they were in favour of same-sex marriages and whether they are in favour of same-sex civil unions.[11][12][13] Both proposals were rejected by 60–70% of voters, though the referendum was invalid as less than 50% of eligible voters turned out.[14]

In early 2017, the Supreme Court deliberated on a case brought by a male same-sex couple (Winston Godwin and Greg DeRoche), who had their application for a marriage license denied in July 2016. In May 2017, Justice Charles-Etta Simmons made the historic ruling that the couple had been discriminated against and that the Marriage Act 1944 was inconsistent with the provisions of section 2 (2) (a) (ii) as read with section 5 of the Bermuda Human Rights Act, as they constituted deliberate different treatment on the basis of sexual orientation. The ruling had the effect of making same-sex marriage legal in Bermuda.[15][16]

Following general elections in mid-2017, the new PLP Government passed a law replacing same-sex marriage with domestic partnerships in December 2017.[17] The British Crown did not challenge the change, and the Governor of Bermuda gave royal assent to the law on 7 February 2018. The law went into effect on 1 June 2018, and Bermuda became the first territory in the world to effectively reverse marriage rights for same-sex couples by legislation.[18][19] A number of international politicians and gay rights organisations criticised the change and argued that the move would damage the island's tourist industry.[20]

By April 2018, two challenges against the law were filed with the Supreme Court.[21][22] The court heard the matter in May 2018 and issued a ruling on 6 June 2018. The court revoked the parts of the law that prevented same-sex couples from marrying, though also agreed to stay the ruling to allow the Government to appeal to the Court of Appeal.[23][24] The Court of Appeal upheld the Supreme Court's ruling on 23 November 2018, thereby allowing same-sex marriages to resume once more in Bermuda.[25] On 14 March 2022 the Judicial Committee of the Privy Council ruled for the Attorney General, who was appealing the Court of Appeal’s ruling, banning same-sex marriage once again.[4] In July 2022, laws were passed within Bermuda to retrospectively backdate same-sex marriage legality formally prior to March 2022.[26]

Adoption and parenting

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In February 2015, Judge Hellman J of the Supreme Court of Bermuda handed down a ruling, finding that direct discrimination had been found on the grounds of marital status and indirect discrimination had been found on the grounds of sexual orientation, when a same-sex couple had been denied the ability to apply for an adoption in Bermuda. As a result, the Adoption of Children Act applies equally to married and non-married couples (and consequently, same-sex couples).[27][28] Same-sex couples are thus allowed to adopt.

Discrimination protections

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In 2013, the Parliament of Bermuda approved legislation that prohibits discrimination on the basis of sexual orientation.[29][30]

Prior to this legislation, Bermuda's Human Rights Commission had repeatedly recommended that the Government of Bermuda change discrimination laws to include sexual orientation.[31] In late 2004, it promised to amend the Human Rights Act 1981 to cover sexual orientation,[32][33] but by late 2005 the matter appeared to have been quietly dropped,[34] until the following year. In 2006, an amendment to the Act was proposed in the House of Assembly, but the Parliament refused to even discuss the issue.[35] In December 2006, an activist group called "Two Words and a Comma" was formed to pressure the Government of Bermuda into amending the act.[31] Following his sudden resignation from Cabinet in 2009, former Culture Minister Dale Butler raised the issue of the amendment, saying that he had intended to table an amended bill in autumn 2009, but that it was now the responsibility of new Culture Minister Neletha Butterfield to do so. Butterfield responded that she was still being apprised of the workings of the Ministry and so could not comment on future plans.[36] In November of that year, following a mention in the annual speech from the throne that the Human Rights Act was to be amended, a rumour circulated that this would include protection for gays.[37] Premier Ewart Brown's press secretary appeared to confirm the rumour, but it was refuted by both the Human Rights Commission and Minister Butterfield, who commented that a sexual orientation clause was still under investigation.[38] It wasn't until 2013 that the Human Rights Act was amended to include sexual orientation.[29]

Bermudians had tried to appeal to the British Parliament regarding LGBT discrimination,[39] prompting the Foreign Affairs Committee to recommend that the British Government should take steps to extend human rights in the British Overseas Territories (BOT), for which the United Kingdom is ultimately responsible.[40]

Bermuda's human rights in general do not have a favourable reputation. In mid-2008, Bermuda was the only BOT to refuse to join a four-year human rights initiative organised by the Commonwealth Foundation.[41]

Gender identity and expression

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Participants at the 2011 Pride in London marching against hatred and homophobia in Bermuda.

There is no legal recognition of transgender people, and thus, by omission, no protection from discrimination.[39]

The ability of persons to express their gender identity is often difficult; for example, in 2006, the Government attempted to ban Mark Anderson, also known as the drag queen "Queen of Bermuda" Sybil, from participating in a parade, stating that he contradicted local mores and sensitivities.[42] In mid-2009, it was announced that gay Bermudians would be participating in Pride in London, with an estimated 30 LGBT London residents from Bermuda marching,[36] and that it hoped to follow in Anderson's footsteps and participate in a future Bermuda Day pride parade. Gay Bermudians doubted, however, that there would be large-scale participation due to fears of repercussions against their families.[43]

Military service

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The Bermuda Regiment does not discriminate on grounds of sexual orientation, as it is formed by random lottery-style conscription. Officially, members of the Regiment are prohibited from discriminating against or harassing LGBT soldiers.[44] Such activities, however, have been reported as being tolerated by officers, to the extent that one conscript described the Regiment as "the most homophobic environment that exists".[45]

Blood donation

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Gay and bisexual men may donate blood with the Bermuda Hospitals Board if they haven't had sex with another man in the past 12 months. Likewise, women who have sexual relations with men who have sex with men are deferred for a period of 12 months.[46]

Living conditions

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Bermuda is a socially conservative society, though the younger generation is considered to be increasingly culturally liberal. Open displays of affection between same-sex partners may offend.[47]

Several gay Bermudians, who have since moved to the United Kingdom, London in particular, have reported a climate of intense homophobia in Bermuda, where LGBT people are routinely bullied and discriminated against.[48]

As of 2018, there are a number of gay-friendly venues in Bermuda, including restaurants, hotels and bars.[47]

The first gay pride parade in Bermuda was held in the capital Hamilton on 31 August 2019.[49][50][51] An estimated 6,000 people attended.

Tourism

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Tourism is a significant aspect of Bermuda's economy. In 2007, LGBT R Family Vacations, with the support of Premier and Minister of Tourism and Transportation Ewart Brown,[52] considered making Bermuda one of its destinations. A close ally of Brown, Andre Curtis, who ran a controversial "Faith-Based Tourism" initiative for the Premier, opposed the visit,[53] organising some eighty churches into an interfaith group called "United by Faith" to protest the planned trip,[54] alongside the country's African Methodist Episcopal churches.[55] R Family decided to change the itinerary to replace Bermuda with two stops in Florida and a private island. One of the organisers stated:

"If we didn't have kids on board and there were protesters, we would go, but we did not want to expose kids to that hatred while they were on vacation."[56]

Ironically, Bermuda has actually been the host of gay tourism for many years. The LGBT travel company Pied Piper, for example, has been organising trips – albeit on a smaller and much quieter scale – to the country since 1990, without incident.[2]

Carnival Cruise Line, which has many ships registered in Bermuda, has expressed support for same-sex marriage and LGBT rights.[57]

DVD gay porn court case

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In November 2020, it was reported and discovered that the government of Bermuda spent approximately £150,000 to legally appeal an unconstitutional court case of an individual man who was charged and threatened with jail under the archaic "obscene behaviour law" for importing DVDs of gay porn into Bermuda.[58]

Marriage polls in Bermuda

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In September 2020, a Bermuda poll was conducted with 53% of individuals supporting same-sex marriage. This is the first time a poll showed a majority in support of same-sex marriage within Bermuda.[59]

Summary table

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Same-sex sexual activity legal   (Since 1994)
Equal age of consent   /  (Equal since 2019, but the age of consent for both heterosexual and homosexual anal sex is still higher than that for other types sexual intercourse)
Anti-discrimination laws in employment only   (Since 2013)
Anti-discrimination laws in the provision of goods and services   (Since 2013)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)   (Since 2013)
Same-sex marriages   (Since 2022)
Recognition of same-sex couples   (Since 2016)
Stepchild adoption by same-sex couples   (Since 2015)
Joint adoption by same-sex couples   (Since 2015)
LGBT people allowed to openly serve within the military   (Responsibility of the United Kingdom)
Right to change legal gender  
Access to IVF for lesbians  
Commercial surrogacy for gay male couples   (Banned for heterosexual couples as well)
MSMs allowed to donate blood  /  (12 month deferral period required)[46]

See also

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References

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  1. ^ "Gay Bermuda - GayTimes". Archived from the original on 29 September 2006.
  2. ^ a b "Gay cruisers will still come to BDA". Bermuda Sun. 20 April 2007.
  3. ^ a b Duffy, Nick (23 November 2018). "Bermuda has legalised same-sex marriage for the second time". PinkNews.
  4. ^ a b "Bermuda's ban on same-sex marriage is allowed, UK judges rule". TheGuardian.com. 14 March 2022.
  5. ^ Hainey, Raymond (14 July 2014). "Bermuda 'violating' European Convention | The Royal Gazette:Bermuda News". The Royal Gazette.
  6. ^ "Stubbs' gay sex bill wins MP's support | The Royal Gazette:Bermuda News". The Royal Gazette. 14 May 1994.
  7. ^ "Senate passes bill decriminalising gay sex | The Royal Gazette:Bermuda News". The Royal Gazette. 26 May 1994.
  8. ^ "Criminal Code Amendment Act 1994" (PDF).
  9. ^ a b "Criminal Code Act 1907" (PDF). bermudalaws.bm.
  10. ^ "Same-sex ruling: the likely implications". The Royal Gazette. 28 November 2015. Archived from the original on 7 May 2017.
  11. ^ a b Bermuda same-sex marriage referendum set for June 23 Archived 7 September 2018 at the Wayback Machine Jamaica Observer, 12 May 2016
  12. ^ a b Referendum (Same Sex Relationships) Act 2016 Bermuda Laws Online
  13. ^ a b Referendum (Same Sex Relationships) Notice 2016 Bermuda Laws Online
  14. ^ Jones, Simon (24 June 2016). "Voters roundly reject same-sex marriage". The Royal Gazette. Hamilton, Bermuda. Archived from the original on 25 June 2016. Retrieved 29 June 2016.
  15. ^ "Landmark same-sex ruling". The Royal Gazette. 5 May 2017. Retrieved 5 May 2017.
  16. ^ "W Godwin et al v Registra General [2017] SC (Bda) 36 Civ" (PDF). Supreme Court of Bermuda. 5 May 2017. Archived from the original (PDF) on 6 May 2017.
  17. ^ "Bermuda to ban same-sex marriage months after it was legalised". The Guardian. 14 December 2017.
  18. ^ "Governor Gives Assent: Domestic Partnership Act". Bernews.com. 7 February 2018.
  19. ^ "Domestic Partnership Bill (refer to pp. 29 for note on commencement)" (PDF).
  20. ^ Gay MP says Bermuda's ban on same-sex marriage will damage Britain's reputation Archived 7 September 2018 at the Wayback Machine, Jamaica Observer, 27 January 2018
  21. ^ Burgess, Don (16 February 2018). "Legal Challenge Filed: Same Sex Marriage". Bernews. Archived from the original on 28 February 2018. Retrieved 16 February 2018.
  22. ^ Lagan, Sarah (3 April 2018). "OutBermuda to challenge Domestic Partnership". The Royal Gazette. Archived from the original on 3 April 2018. Retrieved 3 April 2018.
  23. ^ Strangeways, Sam; Johnston-Barnes, Owain (6 June 2018). "Court rules in favour of same-sex marriage". The Royal Gazette. Archived from the original on 12 June 2018. Retrieved 30 January 2020.
  24. ^ "Court Rules In Favour Of SSM, Govt To Appeal". Bernews. 6 June 2018.
  25. ^ Farge, Emma (24 November 2018). "Bermuda top court reverses government's gay marriage ban". Reuters.
  26. ^ "Same-sex marriages validated". 18 July 2022.
  27. ^ "In The Supreme Court of Bermuda CIVIL JURISDICTION 2014: No. 308" (PDF). Supreme Court of Bermuda. 3 February 2015. Archived from the original (PDF) on 7 May 2017.
  28. ^ Wilson, Paul (18 May 2015). "Considering roles of the Judiciary and Parliament". The Royal Gazette.
  29. ^ a b Johnson, Ayo (15 June 2013). "MPs approve historic Human Rights Act changes". The Royal Gazette. Retrieved 15 June 2013.
  30. ^ "Bermuda Senate approves bill prohibiting discrimination against gays". LGBTQ Nation. 2 July 2013.
  31. ^ a b Northcott, David (22 March 2008). "Submission from David Northcott, on behalf of Two Words and a Comma, Bermuda". House of Commons of the United Kingdom.
  32. ^ Johnson, Ayo (1 November 2004). "Gays to get human rights protection". The Royal Gazette. Retrieved 3 May 2009.[permanent dead link‍]
  33. ^ Johnson, Ayo (2 November 2004). "Gay rights move applauded". The Royal Gazette. Retrieved 3 May 2009.[permanent dead link‍]
  34. ^ Wells, Phillip (6 October 2005). "Equal rights for gays". The Royal Gazette. Retrieved 3 May 2009.[permanent dead link‍]
  35. ^ "Hundreds demonstrate against MPs' gay rights 'silence'". Bermuda Sun. 2 June 2006. Retrieved 11 November 2008.
  36. ^ a b O'Connor, Clare (3 July 2009). "New Culture Minister now responsible for sexual orientation amendment to Act".[permanent dead link‍]
  37. ^ O'Kelly-Lynch, Ruth (8 February 2011). "Campaigner's praise as Government moves to end sexual orientation discrimination". The Royal Gazette.
  38. ^ Smith, Tim (10 November 2009). "Cabinet rejects making sexual orientation protected under Human Rights Act". The Royal Gazette.
  39. ^ a b Smith, Brenda Lana (29 January 2008). "Human Rights in the Overseas Territories". Parliament of the United Kingdom. Retrieved 3 May 2009.
  40. ^ House of Commons Foreign Affairs Committee (18 June 2008). "Seventh Report of Sessions 2007-2008: Overseas Territories" (PDF). pp. 8, 81–91.
  41. ^ Jacobs, Trent (19 August 2008). "Caymanian to lead the Caribbean rights effort". Cayman Net News. Retrieved 3 May 2009. [dead link‍]
  42. ^ Neill, Scott (25 May 2006). ""Queen of Bermuda" reigns on parade". The Royal Gazette. Retrieved 3 May 2009.[permanent dead link‍]
  43. ^ Huish, Sirkka (3 July 2009). "Bermuda's gays plan Pride parade on island".
  44. ^ Bermuda Regiment Standards of Conduct[permanent dead link‍]
  45. ^ Strangeways, Sam (26 May 2006). Bill's supporters stunned by defeat. The Royal Gazette. Retrieved 8 May 2009.[permanent dead link‍]
  46. ^ a b "Eligibility Criteria and Blood Donation in Bermuda" (PDF). Archived from the original (PDF) on 15 February 2020. Retrieved 15 February 2020.
  47. ^ a b "Gay & Lesbian Travellers". Archived from the original on 8 September 2018. Retrieved 7 September 2018.
  48. ^ Ferguson, Rod (6 March 2018). "As A Survivor Of Bermuda's Homophobia I Want To Do All I Can For Same-Sex Marriage Rights". HuffPost UK. Retrieved 22 June 2021.
  49. ^ Lagan, Sarah (12 June 2019). "Bermuda to hold first gay pride march". The Royal Gazette.
  50. ^ Johnson, Mark (13 June 2019). "Bermuda to hold first LGBTI Pride march". Gay Star News. Archived from the original on 13 June 2019. Retrieved 16 June 2019.
  51. ^ Burgess, Don (30 August 2019). "Conflicted, conservative Bermuda stages first Pride parade". Reuters.
  52. ^ Bourke, Amy (3 April 2007). "Rosie's gay cruise is backed by Bermuda's leader". Pinknews. Archived from the original on 4 August 2011. Retrieved 21 June 2007.
  53. ^ Smith, Tim (24 April 2008). "UK Christian group critical of faith-based tourism". The Royal Gazette. Retrieved 11 November 2008.[permanent dead link‍]
  54. ^ Dale, Amanda (30 March 2008). "Rethink opposition to gay cruise, churches urged". The Royal Gazette. Retrieved 11 November 2008.[permanent dead link‍]
  55. ^ Jones, Glenn (24 March 2007). "AMEs launch the first salvo against the Rosie cruise". Retrieved 11 November 2008.[permanent dead link‍]
  56. ^ Guaracino, Jeff (July 2007). "Fun For Grown-Ups Aboard Rosie's r Family Cruises". Instinct. p. 48.
  57. ^ "Carnival Is Supporting Bermuda's LGBTQ and Funding Efforts to Bring Back Gay Marriage". Travel + Leisure.
  58. ^ "Ministry appeal against $125,000 award to man in gay sex DVD case dismissed". 12 November 2020.
  59. ^ "OUTBermuda: 53% Favour Same-Sex Marriage". 17 September 2020.

Further reading

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