Sexual Orientation, Gender Identity and International Human Rights Law

Common Law Perspectives

Kerry O'Halloran

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429809729
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This book identifies, analyses and discusses the nexus of legal issues that have emerged in recent years around sexuality and gender. It audits these against specific human rights requirements and evaluates the outcomes as evidenced in the legislation and caselaw of six leading common law jurisdictions. Beginning with a snapshot of the legal definitions and sanctions associated with the traditional marital family unit, the book examines the subsequently evolving key concepts and constructs before outlining the contemporary international framework of human rights as it relates to matters of sexuality and gender. It proceeds by identifying a set of themes, including the rights to identity, to form a family, to privacy, to equality and to non-discrimination, and undertakes a comparative evaluation of how these and other themes indicate areas of commonality and difference in the approaches adopted in those common law jurisdictions, as illustrated by the associated legislation and caselaw. It then considers why this should be and assesses the implications.

Part I

Background

1 Sexuality and gender

Cultural context, concepts and parameters

Introduction

The progenitor common law jurisdiction, and the others profiled in Part II, evolved from the same cultural context. This chapter begins the book by considering that baseline. The roles of these jurisdictions in the former British Empire meant that they grew to share much more than the discipline of the common law: language, Christianity, parliamentary democracy, modes of governance, cultural and social mores and strong family ties were also in the mix. The chapter briefly explores a cultural heritage in which Christian and common law principles provided the orthodox and exclusive framework for sexual relationships in those jurisdictions: gender and sexuality confined in law to familial roles; the criminalisation of sexual relationships outside that framework and the social exclusion and religious rejection of those involved; and the rejection or suppression of any Indigenous culture. It goes on to consider the relevance of “the politics of identity” and the process of social change driven by factors such as single parent welfare benefits, contraceptives and the impact of methods of assisted reproduction on family planning and on female control of that planning etc. It reflects on how much all of this has contributed to shaping the respective jurisdictional responses to contemporary SOGI issues.

The chapter then introduces and explains contemporary concepts, social constructs and emerging issues as they relate to matters of sexuality and gender and their inter-relationship. It identifies theoretical perspectives (e.g. “queer theory”) and relates them to social movements (e.g. feminism). It explores our understanding of “sexuality” and “gender”, tracing legal milestones in the development of independent rights for males and females. It examines the pivotal importance of reproductive rights, the emergence of which strategically altered the law relating to the family, freeing women and sexuality from roles assigned or constrained by law and opening up the possibility of further diversification from the traditional family law model. It concludes by considering the complex nature, process and consequences of transgendering.

The common law jurisdictions and a common cultural heritage

Prevailing in England since the twelfth century before being exported to its colonies, common law was grounded on the rights and duties of the individual.¹ Often referred to as “judge made law”, it was derived not from the prescribed directives of statute but rather from tradition, custom and judicial precedent, as embodied in rules and interpreted and applied by the judiciary adopting an inquisitorial approach on a case-by-case basis. Consequently, it was heavily reliant on established case precedents.

1 See Blackstone, Sir William, Commentaries on the Laws of England, Clarendon Press, Oxford, 1765–1769.

The common law: a shared tradition

The common law made no provision for class or community actions. There was no sense of collective legal interests; it consisted merely of categories of causes actionable by or against individuals, leaving the latter to fit his or her complaint to an established cause. This approach – listing subjects available for legal redress and permitting subsequent empirical extension by analogy – proved to be problematic. Its grindingly logical approach led to the law being constrained by the rigidity of the specified, corralled by established case precedents, where any development to meet emerging needs could only be achieved by painstakingly distinguishing the facts of new cases from the old. The result was a reliance on endless lists and categorisation, producing a consequent patchwork effect rather than a coherent body of law.

The doctrine of precedent

Reliance on this doctrine facilitated the growth of a shared jurisprudence between common law jurisdictions, reinforced, historically, by the role of the Privy Council. The judiciary in one common law jurisdiction would consider it reasonable to apply a principle drawn from a case precedent established in another where there were matching circumstances.² This, for example, was standard practice in charity law cases, where the judiciary for centuries were most often drawing from a pooled jurisprudence established in line with principles formulated under the auspices of the English Statute of Charitable Uses 1601. (This, until the mid-twentieth century, was the only formative charity legislation available in the Part II jurisdictions.) Even when not strictly abiding by the doctrine, by “following” the ratio decidendi of a judgement, “judicial notice” might well be taken of a ruling issued in another jurisdiction if it was felt to have a bearing on the facts of a particular case. By such means, both law and the accompanying moral imperatives were transferred from the progenitor jurisdiction to shape the foundations for justice in all other common law countries.

2 Most notably permitting the cross-jurisdiction adoption of principles such as audi alteram partem, nemo judex debet esse in proprio sua causa and res judicata.

The common law jurisdictions: a shared cultural heritage

The imperial blueprint that travelled with the forces of the British Empire to all jurisdictions presently being considered is most usually thought of in terms of administrative structure. This comprised a fairly uniform system of parliamentary government, of law and judiciary and of institutional machinery, language and customs that are still recognisable features of the bonds that unify this most developed group within the commonwealth of nations.³ A conspicuous aspect of that shared cultural infrastructure has been the mosaic of churches, mainly Catholic or Protestant, that have spread much the same web of parishes, ministers/priests and parishioners across many lands. These continue to be highly visible reminders of the shared Christian morality that formed the underpinning foundations of the common law cultural legacy.

3 Ireland, in fact, is not among the 52 countries that now constitute the commonwealth.

Christianity and the common law jurisdictions

Largely unseen but representing the bulk of their shared Christian heritage is the body of values, ethics and principles, strained from the gospels and scriptures, that have been ingrained and passed on from one generation to the next throughout the common law jurisdictions. This shaped a communal sense of right and wrong, of what constitutes morality, immoral conduct and “sin”. A matrix of moral imperatives – the violation of which was sinful – was threaded through the justice system of the common law nations.

Sin

The concept of “sin”, religion’s most basic enforcing mechanism, extended to brand a range of conduct designated by Church and State as “profane” and “heinous”, being both criminal and sinful. Conduct regarded as sinful was generally not confined by any religion to transgression of beliefs but included most behaviour that would be construed as breaching secular laws or which in ethical or morality terms could be viewed as “bad”. Such prohibited conduct policed the personal life of every individual, mapping out approved relationships, legitimate means of procreation and rules for the properly constituted family. This shared cultural heritage, infused with Christian morality and common law principles, inevitably prepared the ground for the response of the Part II jurisdictions to the emerging challenge of SOGI-related issues.

Sex

The sin of sexual relations – those not conducted between adult heterosexuals, for reasons of procreation and within a marital relationship – was well embedded in Christianity and regulated by statute in the common law nations. One incidental consequence of this was the apparent need to classify types of sexual activity – prostitution, buggery/sodomy, paedophilia etc. – a prequel perhaps to contemporary classifications that now structure our approach to SOGI matters and more generally towards the LGBT community and its constituent parts. Of greater, deeper and more long-lasting significance have been the connotations of immorality that came to be associated with non-marital sex and non-binary gender matters; for some, affirmation of that sinfulness came with the outbreak of AIDS. Fear of being branded sinful, to be tainted with the smear of perversion, has been a very real obstacle that has delayed social and legal acceptance of SOGI issues in the Part II jurisdictions.

Family law

Family law in the Part II jurisdictions evolved within a common law context in accordance with the structures, principles and judicial precedents established in England ...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Introduction
• Part I Background
• Part II Law, policy and practice
• Part III Evaluation
• Index