The Privy Council on Sex, Gender and Equality

By Francis Alexis, 13 Nov 16

1. The UK Privy Council (‘UKPC’) upholds sexual orientation rights and defends stable ‘marriage-like homosexual relationships’; on provisions prohibiting  discrimination based on ‘sex’, not ‘gender’; paras 6-8 below refer. UKPC proclaims gender equality as equal human development rights for women and men, unrelated to sexual orientation rights, paras 3-5 below refer.

MODERN HUMAN RIGHTS INSTRUMENTS

2. UKPC looks at modern human rights instruments. The UN Universal Declaration of Human Rights 1948 entitles all to human rights without discrimination based on ‘sex’.  CEDAW 1979 calls for equal rights for men and women in human development; Article 11 championing equality in employment opportunities and promotion, the aim in Grenada in Rolda Bridgeman (2007).  So too does the CARICOM Charter of Civil Society 1997, Article XII, promoting ‘gender equality’.

UKPC EQUATES GENDER WITH SEX

3. The Trinidadian Equal Opportunities Act 2000, section (‘s) 7, prohibits a person from doing any act adverse to another person because of ‘gender’. If that section goes further than existing law, UKPC said in Suratt v A-G (2007), at para 58, it is ‘merely bringing the law into conformity with all modern human rights instruments, which include sex or gender among the prohibited grounds of discrimination’. So, UKPC sees gender as no wider than sex. UKPC equates gender with sex. The India SC even treats gender as one of the ‘distinct components of sex’, making sex larger than gender, in National Legal Services Authority v Union of India (2014).

EQUAL OPPORTUNITIES

4. Moreover, UKPC in Suratt presents as worthy of emulation modern human rights instruments.  In these, ‘gender equality’ is about promoting equal development for women and men; ensuring equality of opportunities for men and women in such areas as education, employment, vocations, the professions, national leadership, politics and culture; to boost economic, civil and social development, para 2 above refers.

5.  These are the goals of the ‘gender equality’ provisions of the Human Rights Bill, Bill No 6, in Grenada. They define ‘gender’ as the range of characteristics pertaining to, and differentiating between, male and female; confining gender to its traditional male and female binary language. They root ‘gender equality’ in equal treatment of men and women, without discrimination based on gender. Hence the opinions given to RC priest  Fr. Sean by Catholic legal experts abroad, reported in Catholic Focus Nov 2016, that ‘the definition of “gender” and “gender equality” in Bill No.6 are biological and not psychological’. Similar is the view of the Commonwealth Secretarial Human Rights Unit in London and LGBT in Grenada.

UKPC LINKS SEXUAL ORIENTATION TO SEX

6. The Gibraltar Constitution s 14 outlaws discrimination based on ‘sex’, just as s 13 in Grenada. In Rodriguez v Minister of Housing (2009), UKPC held that in Gibraltar, on s 14, sexual orientation is a prohibited ground of discrimination. The denying of public housing to two female same sex partners was based on their sexual orientation. This, UKPC held, was discriminatory, if only indirectly. So UKPC there linked sexual orientation rights to provisions on ‘sex’; not ‘gender’ nor ‘gender equality’. The same was done by the Belize SC on similar Belize provisions on sex, in Orozco v A-G (2016).

UKPC ON STABLE MARRIAGE-LIKE SAME SEX RELATIONSHIPS

7. UKPC in Rodriguez said its decision does not oblige Gibraltar to introduce same sex marriage or civil partnership. Equally, though, Lady Hale for UKPC there said, at para 26, quoting herself in an earlier UKHL decision, it is not legitimate to discourage either homosexual relationships or stable responsible ‘marriage-like homosexual relationships’. She added in Rodriguez that the aim of discouraging homosexual relationships is impermissible; holding that, in para 31, persons are not to be discriminated against for being ‘same sex partners who are in a stable, long term, committed and inter dependent relationship’.

8. Since ‘gender’ is no wider than ‘sex’,  and if anything gender is just a component of sex, para 3 above refers, gender may not generate more rights than those powered by sex, whether regarding sexual orientation rights or same sex marriages.

WHY THE NON DISCLOSURE

9. In Rodriguez, UKPC related homosexual relationship rights to ‘sex’. In Suratt, UKPC tied gender equality to equal development opportunities for women and men. My showing the   virtual vindication of our gender equality proposals by those UKPC rulings has forced opponents of these proposals to finally mention those two cases, and even then only grudgingly in passing. People want to know why didn’t those opponents make any, let alone any frank and full, disclosure of those UKPC rulings up front; to let Grenadians know that the expressions ‘gender’ and ‘gender equality’ have never been held to increase homosexual relationship rights. The truth will always win out.

10. Those UKPC rulings should inform voting, not only on gender equality, but on other provisions too, as Grenadians go to vote next Thursday, 24th, Referendum Day.
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Francis Alexis

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