Immigration law needs to allow same-sex dependents

| 16/01/2015 | 5 Comments
Cayman News Service

Professor Robert Wintemute

(CNS): The local government will have to start addressing legislation that discriminates against the lesbian, gay, bisexual and transgender community, a leading professor of law has warned. The need to reform the immigration law to allow same-sex dependent partners on work-permits and anomalies in the decriminalization of homosexual acts are some of the things that need urgent attention, according to Professor Robert Wintemute of King’s College London.

The human rights professor and lawyer, who visited Cayman this week for the first in a series of public lectures hosted by the Truman Bodden Law School, delivered an engaging but educational presentation in the Grand Court Thursday evening to a packed house. It was standing room only when Wintemute went through the developments in legislation regarding the prevention of discrimination against people from the LGBT community in both the European Union and the UK.

Wintemute pointed out that the law in Cayman, which finally decriminalized the act of buggary, is now 14 years behind the UK and EU legislation. Because the EU convention on human rights has been extended to Cayman, even though the local constitution does not offer any protection to LGBT people, they can take complaints to the European Court.

He said Cayman needed to change the statute to equalize the age of consent for gay people and remove a rather odd clause in the law that does not allow more than one gay person to engage in sex at the same time. Wintemute, in his often amusing lecture, explained that when the UK legislation regarding the criminalization of gay sex was addressed, in order to pander to fears that gay men would be indulging in group orgies everywhere, they introduced the clause that limits the sexual act between same-sex people to just two at a time.

An expert in anti-discrimination law, Wintemute said the need for Cayman to start addressing general legislation which discriminates against LGBTs as well as tidying up the law that legalizes same-sex physical relationships provides an opportunity for the country to begin the debate about these issues. He said the decriminalization regarding gay sex was imposed on the government (in 2001) and never debated by legislators or the community.

“Perhaps there would not be so much silence on the issue in the Cayman Islands if the subject had been debated at the time,” he added.

He encouraged local people to be open about their sexual orientation. “Come out, come out, come out,” he said. “Give people a chance to learn and see that you are nice people.”

In some countries there are considerations of safety, he said, but coming out to family and friends is a first step, and where safe, coming out in the wider community was the only way that attitudes would change.

Whether Cayman is ready or not, there are laws on the statute books that the government must address because the points have been won in the European courts and the Privy Council and it is only a matter of time before the government’s hand is forced by the UK government or legal action in the EU court or the Privy Council.

Mapping out the history of LGBT rights in Europe, from the death penalty to civil partnerships, Wintemute said Cayman still some way to go along that line.

While the issue of marriage between same-sex couples is not something the government needs to concern itself with yet, he said Cayman should start with the immigration law as this was an area where legal action is likely to succeed and government should not be wasting public money to fight actions it can’t win. However, the professor did note that sometimes when legislators know laws have to be changed but they cannot bring the electorate with them, they go through the motions of fighting legal actions they will lose to give them the pass they need with voters to get through unpopular laws.

He said Cayman’s goal should be to firstly ensure the decriminalization of homosexual activity was completed with no anomalies, then work on the removal of all discrimination so lesbian and gay people can live open lives with full equality. The final step, he said, was addressing civil partnerships and family life for LGBTs so they get the same rights as married couples under the law and so they can adopt or engage in lawful assisted reproduction.

While there is still considerable opposition from the churches in Cayman to civil partnerships, Wintemute said it would happen eventually. Although it is not a requirement yet under European legislation for member states to have civil partnership laws, the UK does and it won’t be long before the majority of EU states do as well. Once that happens, the requirement will become part of the convention which will extend the right to Cayman while it remains a UK territory.

Wintemute said Cayman did not have “to jump into civil partnerships tomorrow”, even though within a decade it would likely have to deal with it. But he said the pressing issue was to deal with discrimination and inequality as well as tidying up the criminal law. Following those reforms, as more people begin living as openly gay couple without fear of intimidation or discrimination then the wider community will begin to accept the equality of LGBTS and the concept of civil partnerships, he said.

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Comments (5)

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  1. Jim says:

    We can pass all the laws we want, formulate the most erudite arguments and try to convince others of our progressive righteousness.
    You don’t need to convince me, you need to convince God.
    I don’t think He has changed His position, but just keep on going with this and see where it gets you.

  2. Optimism says:

    Let’s not confuse two concepts. Nobody suggests that the Cayman Islands has to enact legislation now to permit same-sex marriages. Although that would be desirable, it is a matter of public/family law for the Cayman Islands to consider. The suggestion here is that the Cayman Islands should recognise the validity of, or give some validity to, marriages or civil unions contracted overseas. This is a matter of international private law. The English common law applicable to Cayman on this matter is very clear: the validity of overseas marriages is assessed by the law of the place where the marriage was celebrated without regard, in principle, to the law of the Cayman Islands on the subject. This is a very old principle whose rationale is the respect of the legal act of marriage that took place under the law of another sovereign state. France has a similar principle in place; before France passed same sex marriage, it ‘recognised’ the validity of same sex marriage contracted abroad, even though same sex marriage was not at that time allowed in France.

  3. Edris says:

    It is an abomination and we should not be allowed by legalizing rights. It is not morally right to legalize same sex marriage for political expedience. As usual many leaders are so weak to good morality because it is easier to remain popular. I say no

    • JustSayin says:

      Cheating on ones spouse is also sin. I believe it’s called adultery, but it is not against the law and quite a bit more widespread here than homosexuality… Heterosexuals being the majority and all.

      I would even venture to say that adultery is a bigger threat to marriage and the family than homosexuality. Where is the hype to criminalize that?

  4. Optimism says:

    Hi Fred – just wanted to make clear that this is more about recognising, at the very least, the validity of same sex marriages that were celebrated elsewhere in the world where one or more of the parties to such marriage have decided to call Cayman their home and are legally residing and working here. There was never any suggestion at the lecture that this be about giving immigration rights to boyfriends or girlfriends etc. this is about stable loving relationships that have been legally consecrated.

    I have to agree that the bit about only allowing gay sex with one participant was an unfortunate and slightly amusing misquote. Those that attended the lecture will be aware that Prof. Wintemute was making the point that when gay sex was decriminalised in the Cayman Islands it was also written into statute that not more than two people may engage in gay sex. No particular criticism was being made, I think it was just intended as a lighthearted observation!

    As regards optimism, yes let’s be optimistic – no harm in a bit of that from time to time. It is great that these issues are being discussed and that everyone in the Cayman Island is welcome to join in the debate. The Student Society of the Truman Bodden Law School have shown great courage, maturity and initiative in setting-up this public lecture series and engaging with the community – in my view a great way to share knowledge of the law and perhaps catalyse changes, particularly where Cayman legislation demonstrates unequivocal violations of the European Convention on Human Rights, which applies to Cayman.

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