Chief Justice Ian Kawaley handed down a groundbreaking decision in the Supreme Court on Friday [Nov 27] which paves the way for non-Bermudian same-sex partners of Bermudians to be granted rights to live and work in Bermuda.
The legal case was brought by the Bermuda Bred Company, which was formed by a group of ‘born and bred’ Bermudians in order to “challenge the manner in which their bi-national families were being unfavourably treated by Bermuda’s immigration laws.”
Following the ruling, the Bermuda Bred Company welcomed the decision, saying it “makes absolutely clear that as a matter of local Bermuda law the private and family lives of gay and lesbian Bermudians are subject to human rights protection, and we applaud the Chief Justice for recognising how important families are to Bermudians, including us.”
Speaking after the ruling, Home Affairs Minister Michael Fahy said, “The Chief Justice has made declarations of law that certain provisions of our immigration legislation shall be inoperative to the extent that they authorize me, as Minister, to deny residential and employment rights to same-sex partners of persons who possess and enjoy Bermuda status who have formed a stable relationship.”
“The judgment states that such individuals who have formed stable relationships with Bermudians, have the same rights of residency and employment comparable to those conferred on spouses of Bermudians. The Chief Justice comes to this ruling by making a finding of indirect discrimination on the basis of sexual orientation under the Human Rights Act.”
There is no indication that the Government plans to appeal the Court’s ruling, with Minister Fahy saying, “The Government respects the rule of law and the rights of the court to determine the law. We will conduct ourselves accordingly.”
In addition, the Bermuda Bred Company said, “The Government has asked the Court for time to consider the implications of the decision and importantly, in their words, to get their ducks in a row. We take this to mean that there will be no appeal of the decision, and that the Government is committed to giving full effect to the Order once it is finalized.”
Video of Minister Fahy’s press conference on the matter
Minister Fahy also said “the effects of this judgment are profound” as the Chief Justice’s decision “could have wide-ranging effects on other pieces of legislation and the administrative practices of various Government Departments.”
The Minister said the Government must consider the impact of this ruling on issues including the rights of people co-habiting as life partners, the right to inherit or receive bequests, health insurance legislation, pensions legislation dealing with survivor rights, mortgage and land transfer legislation as well as other matters.
As far as the timeline of implementation, Minister Fahy said that their “Counsel sought a suspension of the Chief Justice’s declaration of inoperability for a period of 12 months to allow Government sufficient time to consider what legislative changes, if any, it needs to bring as a result of this ruling.”
Extracts from the 32-page “Bermuda Bred Company v The Minister of Home Affairs and The Attorney General” Supreme Court ruling follow below.
Must In The Public Interest Be Permissible To Discriminate
As I acknowledged in the course of the hearing, it is true that it must in the public interest be permissible to discriminate [to the extent permitted by section 12[b] of the Bermuda Constitution] when formulating legislative and administrative rules relating to the entry of persons to Bermuda from different countries [e.g. on health or public safety grounds]
Legally Impossible To Avail Themselves Of Rights
To the extent that Bermuda law does not currently recognise same sex marriage it is legally impossible for same sex Bermudian and non-Bermudian partners to marry and avail themselves of the spouse’s employment rights, as heterosexual couples might do.
Same Sex Marriage Neither Possible Nor Recognised
Because same sex marriage was neither possible nor recognised under existing Bermudian law, the relevant statutory provisions discriminated against Bermudians in stable same-sex relationships in an indirect way.
Because while a heterosexual Bermudian at least had the option of marrying his or her partner with a view to receiving the benefit of spousal rights, this option was not available to homosexual Bermudians in that foreign same-sex marriages were not recognised and local same sex marriage was not legally possible.
Indirectly Discriminatory On The Grounds Of Sexual Orientation
The Applicant’s Skeleton Argument advanced the substantive point in the following brief and conclusory manner: “5.1 The 1956 Act provides for spouses of Bermudians to be able to live and work in Bermuda, provided certain conditions are met.
“It makes no such provision for same sex partners of Bermudian. It is submitted that this is directly discriminatory on the basis of marital status, and indirectly discriminatory on the grounds of sexual orientation, for the same reasons as were held in A&B-v-Director of Child and Family Services.
“It is submitted that ss. 25 & 60 of the 1956 Act ought to be read so as to allow bona fide same sex partners of Bermudians to reside and work in Bermuda, subject to the same conditions that are imposed on spouses of Bermudians as to good character, the Bermudian partner’s continued ordinary residence, etc.”
Sections of the Immigration Act Shall Be Inoperative
Sections 25 [, 27, 27A] and 60 of the Bermuda Immigration and Protection Act 1956 shall be inoperative to the extent that they authorise the Minister to deny the same-sex partners of persons who possess and enjoy Bermuda status, and who have formed stable relationships with such Bermudians, residential and employment rights comparable to those conferred on spouses by the said sections 25 and 60 respectively.
The full court ruling is below [PDF]: