The Round-Up: A Landmark Ruling for Gay Rights, Misogyny as a Hate Crime, and a Human Right to Divorce?
10 September 2018
NAVTEJ SINGH JOHAR & ORS VS. UNION OF INDIA, THR. SECRETARY, MINISTRY OF LAW AND JUSTICE: India’s supreme court has unanimously ruled that section 377 of the penal code, which criminalises consensual sex acts between same sex adults, is unconstitutional.
The judgment accordingly decriminalises gay sex, in a landmark ruling for gay rights. Chief Justice Dipak Misra said in his decision that “Criminalising carnal intercourse under section 377 Indian penal code is irrational, indefensible and manifestly arbitrary.”
The 160-year-old law was imposed on India by the British empire as part of a package of laws against public vice. Thursday’s judgment follows 24 years of legal challenges: most recently, the Delhi high court ruled against section 377 in 2009, but was overturned by the supreme court in 2013.
The breakthrough for lawyers came in August 2017, when the supreme court held that there was a fundamental right to privacy. In an unprecedented move, five judges commented in that judgment that the 2013 section 377 decision was wrong.
Trinidad & Tobago’s high court will also rule this month on whether to decriminalise sex between men, and similar rulings on decriminalising gay sex are awaited in Kenya and Botswana.
On Wednesday, the Voyeurism (Offences) (No. 2) bill – commonly known as the upskirting bill – passed in the House of Commons. The bill will now be sent to the House of Lords. Stella Creasy MP had tabled an amendment to make misogyny an aggravating factor in upskirting offences, which would enable courts to consider it in sentencing, and require police forces to record it. However, Creasy agreed to withdraw the amendment in light of the government’s indication that they would launch a fully funded, comprehensive review into hate crime legislation, for which the Law Commission have indicated their support.
Consideration focused on the desirability of a wholesale review of misogyny’s place in hate crime legislation, rather than a ‘piecemeal’ approach, and also paid tribute to the work done by victims and campaigners.
In 2014, Nottingham police force began a pilot scheme to recognise misogyny as a hate crime, following a longrunning campaign by Citizens UK and Nottingham Women’s Centre. In July, research found there to be overwhelming public support for the scheme. Speaking in the Commons on Wednesday, Creasy urged that ‘Internationally, this is not a new idea. Spain, Croatia, Sweden, Estonia, Italy, Belgium and France all recognise gender and misogyny as a basis for hate crime.’
The Guardian has revealed, that the Home Office loses nearly 75% of its immigration appeals – i.e., those which it brings against rulings allowing migrants and asylum seekers to stay in the UK. There are lengthy delays in the immigration court process, with many waiting more than a year for an initial hearing, followed by a year or more in the lead up to the second. During this time, immigrants are often prevented from working, accessing healthcare or renting a home. These figures will add to concerns about the process, and will likely be ascribed to the government’s ‘hostile environment’ policy.
The issue of EU citizens’ rights was notably absent in the first batch of ‘no-deal’ Brexit papers launched by Dominic Raab at the end of August. A total of 24 technical notices were issued, with roughly 55 more expected to be released before 29 March 2019. However, the Department for Exiting the European Union were unable to confirm that there ever will be a technical notice covering the terms and conditions on which EU residents will be able to stay.
Finally, the case of Tini Owens drew nationwide attention this summer, leading to renewed sentiment that the time is ripe for the introduction of no-fault divorce in England and Wales. Currently, under the Matrimonial Causes Act 1973, those seeking divorce must prove that their partner is at fault through adultery, desertion or unreasonable behaviour: spouses may part after two years of separation if both sides agree, but in the absence of these conditions, applicants must wait until they have been living apart for five years. With the government set to launch a consultation on the matter, Charlotte Kelly has this week written for the Oxford Human Rights Hub, making the case for a human right to divorce.
Events: the Equality and Human Rights Commission and the University of Liverpool School of Law and Social Justice will on Thursday 13th formally launch the EHRC’s new report: The impact of LASPO on routes to justice. The launch will be held from 4-7:30pm at the University of Liverpool London Campus (33 Finsbury Square, EC2A 1AG). More information and tickets available here.
And finally…did you miss it? In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland)  UKSC 48, an unmarried mother won a landmark Supreme Court case which could allow cohabitees to claim Widowed Parent’s Allowance, a benefit previously only applicable to married parents. Lucy Eastwood has a rundown of the judgment elsewhere on the blog – catch up here.