Five Extracts From The Same Sex Rights Ruling

November 30, 2015

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.”

Same-Sex-Marriage-2 TC

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[4][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]:

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Comments (28)

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  1. mike says:

    Hi Bernews - I thought that this related story may hold interest for Bermuda.

    Baroness Scotland uses new role as secretary‑general of the Commonwealth to call for LGBT rights.

    http://www.independent.co.uk/news/uk/home-news/baroness-scotland-uses-new-role-as-secretary-general-of-the-commonwealth-to-call-for-lgbt-rights-a6752966.html

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  2. hmmm says:

    The straight forward solution is to allow recognition of Same sex marriages in Bermuda/allow same sex marriages in Bermuda.

    Anything else will result in inequality.

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    • So does this work for straight partners relationships?

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      • hmmm says:

        A same sex marriage, or recognition of a same sex marriage ? Heterosexual couples already have their marriage recognized/ allowed.

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      • Mike Hind says:

        You realize how ridiculous you sound, right?
        You support the denial of rights, evidenced by your bigoted "disgusting European habits" post, yet are now questioning whether someone is being denied rights, as though that is now somehow unfair.

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        • @Mike Hind, I think you are not fully understanding the comment that was made, what I take from it is, if we are going to allow same sex partners who are not married, to have rights to live and work in Bermuda, how is that fair to straight Bermudians who are not married, but have a foreigner as their companion and have been in a committed relationship for sometime.

          There are many Bermudians who have common law wives and husbands but never married and have no intentions on getting married, and like wise many other Bermudians who are and in committed relationships to foreigners outside of Bermuda, who would want the same rights as that which is being handed down by the Supreme courts.

          So with that being said, it is bias and discrimination against these other classes of people, if the Chief justice is allowed to have his ruling stand as he has proposed. I find it rather amusing why we take so much time and effort to fight for equality for all, but in the process still end up discriminating against others.

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          • Mike Hind says:

            Firstly, all of this was covered by the Minister.

            Secondly, why is it that discrimination is only NOW bad and you're calling for equality for all NOW... but when it comes to marriage equality, discrimination is ok.

            It's incredible to me that you can oppose marriage equality on one hand and on the other say that there is a group "...who would want the same rights as that which is being handed down by the Supreme courts." AND that you can say "...WE (emphasis mine) take so much time and effort to fight for equality for all..." after VERY vocally opposing same sex marriages. Hypocrisy at its finest.

            Do you not get that this ruling wouldn't have happened if it weren't for people opposing marriage equality?

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          • serengeti says:

            "The indirect discrimination complaint required only marginally more analysis. Because same-sex marriage was neither possible nor recognised under existing Bermuda 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.”

            Quote from the Chief Justice addressing the point.

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            • Mike Hind says:

              Psht! How DARE you bring facts and reality into this discussion!
              Heterosexuals are being discriminated against! This is the worst inequality ever to happen ever!

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              • LOLOLOLOLOLOL says:

                I see you points and agree with them.

                Still, the bit about what Serengeti says "option of marrying his or her partner with a view to receiving the benefit of spousal rights" still does not permit that spouse to work in Bermuda until they are married. I agree that they will eventually receive the same rights, provided they get married, but what about before then? Until then they are not permitted to work however same-sex couples who also are not married are now permitted to work (if I am understanding the article correctly) without a marriage certificate.

                Hate to say this, but this now has the potential to be discriminatory against Heterosexuals.

                I feel that if you want to stomp out discrimination then go the whole way and not part of the way.

                Additionally, your bit about "Secondly, why is it that discrimination is only NOW bad and you're calling for equality for all NOW... but when it comes to marriage equality, discrimination is ok." is a bit one sided don't you think? Your coming off as "we had to be discriminated against, so now you should to." (Sound familiar in anyway to another large group of people who inhabit Bermuda?) Don't get me wrong, all for you guys and your own way of life, as all should be entitled to. Note what I said, ALL!!!!

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      • Anbu says:

        Nope cause u can get married and it be acknowledged. An easy fix to prevent abuse is to legalise it. Plain and simple. Lol. We told u it was gonna happen whether the church agenda wanted it or not.

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      • Kathy says:

        I think they should have paved the way for same sex marriages BEFORE they paved the way for same sex immigration provisions...NOW this discriminates against those who are in heterosexual relationships but are not married yet...i.e. a girlfriend who is living with her Bermudian boyfriend...should she have equal employment opportunities before marriage???

        What is a commitment anyway?

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  3. jim bob says:

    Let the people have their choice I say. I think you will find there is very small percentage of residents and people who are entitled to vote that will actually be in favor of it.

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    • hmmm says:

      No voting can no longer have an impact...The law is the law and the law has spoken.

      Either mess around with copius amounts of legislation, resulting in discriminatory positions elsewhere, huge costs and wasted money, time as the inevitable will happen, or grant equality.

      Any move against this now is potentially discriminatory. To seek to avoid granting it could in itself be a discriminatory practice.

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      • Daylilly says:

        You are soooo right!!! The human rights act was crafted just well enough to have the courts force Bermuda to abolish marriage in exchange for licensed "hook ups"...

        To my understanding, In the U.S. there are already legal battles on how many people can be in a marriage, 2,3,4 male, female, 2 of each, anything goes and nothing matters.

        Why respect the democratic process when you can manipulate and circumvent it.

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        • Hmmm says:

          Human rights and equality are no brainers.

          Unless you want your fellow human to be dicriminated against and have less rights than you.

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        • Mike Hind says:

          Links?

          Or is this just something else you're making up?

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    • Onion says:

      Last poll the majority supported same sex marriage.

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      • Daylilly says:

        The chicanery used to pretend people are for SSM is unscrupulous. The trick is to keep saying a lie loud enough and long enough until everyone believes that your lie is their truth. Great trick, but not everyone is buying what your lie is selling.

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  4. Mark True says:

    Lets keep a calmness around us all, a willingness to tolerate, collaborate and love our brothers and sisters by seeing no differences in the way we express our loves.

    The USA fooled around with a beat around the bush tactic. 300 years were waisted and families and communities destroyed and devastated.

    Don't ask, don't tell should give a huge indication as how not to offer equality, all the while gay men and women, straight men and.woman fighting side by side. United in mind, body and spirit, saw no inequality.

    Different tongues, colors, religeons and sexes united. That is why America is strong, centered and always able to offer a strong hand, finances, consultation or just watching your back. We have lighted the trail along with so many other countries. Simply because we are now able to see that all being are worthy and offer worth.

    Highly decorated and honored men and women. What a quick thoughtless half witted way to place a bandaid over an artery. By allowing gays in our military fighting for the country they love and at times losing life protecting a country that not only recognizes them as second class citezens or beings unworthy. I believe we are worthy and all have worth.

    We all should hang our heads in shame for treating any person like their lives are not worthy to share rightful protections and privelages under the country they live, fight and even die for. Where is our humanity? Can we even find it ? If we can't treat people with the very same rights given to every other group in the world. How horrible our future is heading if we cannot see that we are all created equal. Our creator does not waiver when saying "God is no respector of persons.". Black, white, Asian, catholic, Baptist, Hindu, Protestant, Seventh Day Adventist. Straight and gay, Morman or Truth Science. We are all the same in the eyes of God. How wonderful is that. If God can see past color, sexes and even orientations. How come we are not able to follow his lead? It's only been his way since the very beginning if time. Never has or will it faulter.

    Time now for positive attitudes and actions.

    What we do today either creates a progressive and prosperous landscape or it could (as evident in this day of discovery) setthe boundaries and limits for ourselves as well for . eachother and our children,

    Today is an opportunity to prove ourselves as bigger, brighter and more loving without bias. Let's all walk together for a united state if equality. Take my hand. I'm delighted to help see you through it. In a state of love and respect may we all continue to benifit together as one being. Whole, aware, conscious and mindful that no one man or woman is better than any other one of us.

    Act from the love you hold in your heart and not the fear and hatred some hold in their minds. Let's celebrate our differences and rejoyce in the unique residents that make Bermuda wonderful and thriving and inviting. Let's lead by example and not hate or bias.

    I love and respect you. Not because your straight but because you are willing and capable of loving and respecting me and others that walk a different path. We're all going the same direction. Why not ease the burden and walk side by side as our creator intends us to.

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  5. Legalgal says:

    It's not "ground breaking" in that, as the CJ points out, it follows an earlier adoption case. The gay lobby, wh I support, are putting the legal cart before the horse...and avoiding marriage by effectively avoiding the marriage act. Challenge that and it will fall, get married then all else will follow.

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  6. Ed Case says:

    Just legalize same sex marriage and all the issues above will be solved. You do not need the church to get married and churches do not issue marriage licenses, they are therefore irrelevant and should have no part of the discussion. The fact that they want to control the situation is unreasonable though not surprising. It's what churches do and it is why people are leaving the church in droves.

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  7. Average Bermudian says:

    This new ruling is not rational or logical - it is not in a reasonable sequence of the current status on SSM discussion in Bermy.

    It's "the cart before the horse"
    What a mockery to all Bermudians.
    Once again immigration laws are impacted - which have no connection to this SSM matter at this point in time.

    How can one person make this call ???????

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    • Mike Hind says:

      What, exactly, is wrong with this ruling?
      What, exactly, is irrational or illogical about it?
      How is it a mockery? How does it effect "all Bermudians"?

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  8. MPP says:

    The OBA would like you to think that their hands are tied on this, but they aren't. Their disinterest in appealing the ruling shows their hand - this is step one on an easy-to-see plan to legalize SSM by avoiding the people altogether.

    It's the perfect political strategy!
    Avoid the people's will by allowing the issue to be *uncontestedly* legislated from the courts.

    Therefore, the OBA doesn't have to change the legislation to legalize SSM. The gay lobby is happy. To the pro-preservation of marriage people: "hey, you can't blame us! We're just following the law like you!"

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