legislation

• GLOBAL ARMS TRADE: ‘By halting the supply of weapons, states can help prevent human rights violations’

  CIVICUS discusses civil society efforts to control arms proliferation with Hine-Wai Loose, Director of Control Arms, a global civil society coalition with over 300 partners in all regions of the world.

  Despite the extensive international effort that led to the 2013 Arms Trade Treaty, challenges remain in regulating the international arms trade and ensuring compliance with international law. Rising tensions only encourage increases in military spending, which is evidenced in the arms industry’s ongoing expansion. Civil society advocates such as Control Arms are pushing for disarmament, stronger arms controls and greater compliance and accountability.

  Why’s disarmament important, and why’s it so difficult to achieve?

  Disarmament can make a significant contribution to building global peace and security. When countries such as Russia and the USA agree to reduce the size of their nuclear arsenals through treaties such as the Strategic Offensive Reductions Treaty, it fosters trust and cooperation between nations.

  Disarmament and arms control measures also play a crucial role in protecting civilians caught in the crossfire of armed conflict or subjected to serious human rights abuses committed with guns, for instance. A good example of an instrument with the potential to protect civilians and civilian infrastructure during armed conflicts is the Declaration on Explosive Weapons in Populated Areas, the first international instrument to explicitly recognise that the use of explosive weapons in populated areas has serious humanitarian consequences.

  Weapons are also an expensive business. Disarmament can free up resources that can be redirected to economic and social wellbeing.

  However, when tensions between countries are as high as they are today, it is particularly challenging to advance disarmament and arms control treaties and norms. In these moments of elevated tensions there can be an increased risk of miscalculations or mistakes that could result in the threat or use of a nuclear weapon.

  Another major challenge is that states invest heavily in arms, using them as an insurance policy against uncertainty. As a result, the ever-expanding arms industry undermines efforts to create a more stable environment. Once tensions eventually subside, it will be difficult to reverse the arms industry’s increased capacity.

  What’s the role of the arms industry in fuelling conflicts?

  In the wake of the events of 7 October, the Wall Street Journal reported a six per cent increase in the value of US arms industry stocks, highlighting the inextricable link between the arms industry and the war machine.

  According to the United Nations (UN) Guiding Principles on Business and Human Rights, the arms industry has clear human rights obligations. But the industry is reluctant to accept responsibility for the impact of its products on human rights.

  In western countries, the arms industry often claims to defend democracy, borders and human rights. If these claims were sincere, the arms industry would ensure its operations comply with human rights standards. This would be crucial to reducing the negative impact of arms production and distribution on global conflicts.

  How does Control Arms work for effective arms control?

  Control Arms was established to build an international coalition to support the negotiation of the Arms Trade Treaty (ATT). This treaty aims to regulate the international arms trade, prevent the transfer of arms that could facilitate serious violations of international humanitarian law or international human rights law and reduce the human suffering caused by irresponsible arms transfers.

  Our first objective is amplifying the voices of civil society in the arms control dialogue. We aim to ensure that those affected by irresponsible arms transfers and those working on the ground are heard and included in deliberations on the international arms trade.

  Our second objective focuses on strengthening the rules governing international conventional arms transfers. We seek to strengthen the ATT’s norms and rules by engaging directly with states and advocating for stronger regulations.

  The third objective is to promote transparency and accountability in the global arms trade. An independent project of Control Arms is the ATT Monitor, through which an annual report assessing reports submitted under the ATT and providing valuable insights into the implementation of the treaty is produced.

  We participate in multilateral forums, from the ATT Conferences of States Parties to the Human Rights Council, to raise awareness how real-world cases of arms transfers that are not in compliance with international law impact on civilians. We explain how arms transfers affect human rights and international humanitarian law in places such as Gaza, Myanmar and Yemen. We identify states involved in questionable arms transfers and seek to hold them accountable for their actions. Engaging in such advocacy is not always easy, and nor is it necessarily welcome, but it is essential to ensuring that multilateral deliberations are informed by reality and states are called to account for their actions.

  What are the ATT’s key provisions?

  The ATT places international humanitarian law and international human rights law at the centre of arms transfers decisions. Article 6 prohibits transfers contrary to a state’s obligations under international law, or in cases where a state party has knowledge at the time of the authorisation that the weapons would be used in the commission of genocide, crimes against humanity and grave breaches of the 1949 Geneva Conventions.

  If the provisions of Article 6 do not apply, then before a state can transfer weapons it must undertake an assessment under Article 7. Under this assessment, an exporting state party is required without discrimination to ‘assess the potential’ that the weapons ‘would contribute to or undermine international peace and security’ or could be used to commit or facilitate serious violations of international humanitarian law or international human rights law. I am oversimplifying the risk assessment, but this is it in a nutshell.

  Even states that have not joined the ATT still have obligations under international customary law, which includes countries such as the USA. The four Geneva Conventions and customary international law obligate all states to ensure respect for international humanitarian law. By ending their supply of items at risk of being used in conflict, major arms exporting states can help bring an end to serious violations of international humanitarian law and most importantly to the suffering being witnessed in places such as Gaza, Haiti, Myanmar and Sudan.

  What are the challenges to the ATT’s effectiveness?

  There are a range of challenges, and these largely concern compliance with the ATT. For example, some national courts refuse to deal with legal challenges to government decisions to transfer weapons, considering them a matter of government policy rather than law. This limits the ability of the judiciary to hold governments accountable for arms transfers that may violate international law. Another problem being encountered is that some states announce a suspension of arms transfers but continue to transfer weapons, ammunition and parts and components under contracts established before suspension was announced. A third example is when companies originally established in countries that have strict regulations set up offshore entities in countries with less stringent controls so they can continue to transfer weapons to questionable contexts.

  What further agreements or regulations are needed?

  A key area of focus in disarmament and arms control right now is the regulation of new and emerging technologies such as lethal autonomous weapons systems. Given the rapid development of new technologies, this focus on autonomy is entirely understandable.

  Guns, however, remain the primary weapon of choice in everyday violence, organised crime and gender-based violence. Despite their impact, they are subject to limited international regulation, such as the UN Programme of Action on Small Arms and Light Weapons. While this has helped states implement gun control legislation, a more systematic and rigorous approach is needed.

  Unfortunately, the prevailing view, which has spread from the USA to other parts of the world, is that people have a right to bear arms. To prevent human rights abuses and violations committed with guns, states must enact robust legislation on gun ownership and control, and ensure it is backed by strong criminal penalties.

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  Get in touch with the Control Arms through itswebsite orFacebook andInstagram page, and follow@controlarms on Twitter.

• INDONESIA: ‘The new Criminal Code spells danger for civil society’

  CIVICUS speaks about the new criminal code passed in Indonesia withFatia Maulidiyanti, Executive Coordinator of KontraS/The Commission for the Disappeared and Victims of Violence.

  KontraS is an Indonesian civil society organisation (CSO) established in 1998 to investigate enforced disappearances, acts of violence and other human rights violations.

  What are the main changes introduced in the new Criminal Code?

  It is KontraS’s opinion that this Criminal Code Bill will have effects well beyond hampering people’s right to privacy. Many of its articles seek to legitimise the ongoing restrictions that are shrinking civic space, bringing back the spirit of the authoritarian Suharto era.

  For example, articles 218 and 219 introduce the crimes of defamation and insult against the president and vice president. This will allow the criminalisation of government critics. Similarly, article 240 bans defaming and insulting the government, and article 351 makes it a crime to defame or insult any authorities or state institutions. These articles are meant to criminalise the publication of any kind of research, data or criticism of the government and the state institutions.

  This amounts to the reintroduction of a once repealed lèse-majesté clause dating back to Dutch colonial times, which of course has long been repealed in the Netherlands. And it spells danger for civil society. It is worth noting that the policing and judicial systems in Indonesia are very problematic. Police standards are low and there is a lot of corruption. Arbitrary arrest and detention are commonly used, as are unfair trials. This already hinders the ability of civil society movements to exist and sustain their work.

  There are also several problematic articles related to the need to request and obtain permits to conduct demonstrations, rallies and other public gatherings.

  What are the forces behind the changes?

  There have been too many obscure political bargains between the government and parliament to accommodate the interests of all political parties at the expense of civil rights and fundamental freedoms.

  While there seems to have been a group of academics supporting the drafting process, there has been no consultation with or participation of civil society or business interests. At the centre of the new criminal code is an attempt to secure power, guarantee public order and gain control in preparation for the 2024 presidential election.

  What do you make of the changes regarding ‘morality’ issues such as sex outside marriage?

  Regression on morality issues may be counterproductive at a time when the government is trying to prevent mass protests against their policies, particularly in view of the upcoming election.

  But the criminalisation of private relationships, acts and behaviours can also be seen as a bargaining chip as the current government is trying to bring Islamic fundamentalist groups into the fold. They are trying to ensure their loyalty by showing they are willing to safeguard conservative religious values. LGBTQI+ rights have been at the forefront of the battles waged by fundamentalist political and religious groups, so they have been the first to go.

   

  How has civil society tried to stop these changes from happening?

  We often discussed with our allies whether and how to provide inputs and recommendations to the Ministry of Law and Human Rights and to the House of Representatives during the process. We did have meetings and took part in various consultations, but as it turned out, these just went through the motions of public engagement, keeping the formalities but disabling any meaningful opportunity to influence the outcomes.

  Numerous CSOs across Indonesia have been protesting about this since at least 2019. There was a big campaign, #ReformasiDikorupsi (‘corrupt reform’) followed by a series of demonstrations against the enactment of the criminal code. However, the government and parliament chose to continue ignoring our objections and instead accelerated the process.

  What kind of support does Indonesian civil society need from the international community?

  We need all sectors of the international community, including international CSOs, foreign governments and their diplomatic missions and United Nations bodies, to send a clear warning to the Indonesian government against continuing to shut down civic space.

  We really hope the movement to warn the government of Indonesia comes not only from domestic civil society, but also from our international counterparts.

  Investors should also use their leverage, as the government is trying to attract foreign investments while the human rights situation continues to deteriorate on the ground.

  The Indonesian state should be held accountable and be persuaded to step back and change course.

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  Civic space in Indonesia is rated ‘obstructed’ by theCIVICUS Monitor.

  Get in touch with KontraS through itswebsite and follow@kontras_update on Instagram and@KontraS on Twitter.

• IRAQ: ‘Tolerance for abuses against LGBTQI+ people has now been made explicit through legislation’

  CIVICUS discusses the criminalisation of same-sex relations in Iraq with Sarah Sanbar, researcher at Human Rights Watch’s Middle East and North Africa division.

  The Iraqi parliament recently passed a law criminalising LGBTQI+ people, punishing same-sex relations with between 10 and 15 years in prison and transgender identities with sentences of one to three years. The original proposal included even harsher penalties, but lawmakers introduced amendments in response to strong criticism. Supporters claim the law upholds deeply held religious values, while critics condemn it for institutionalising discrimination and enabling serious human rights abuses.

  What led to recent legislative changes criminalising LGBTQI+ people?

  On 27 April 2024, the Iraqi parliament passed an amendment to the country’s 1988 anti-prostitution law, effectively criminalising same-sex relations and transgender identities. The amendment states that same-sex relations are punishable with between 10 and 15 years in prison, and provides for one to three years’ imprisonment for those who undergo or perform gender-affirming medical procedures.

  The law also punishes those who ‘imitate women’ with a seven-year prison sentence and a fine of between 10 and 15 million Iraqi dinars (approx. US$7,700 to US$11,500) and criminalises the ‘promotion of homosexuality’, a vague and undefined expression.

  The passing of this law follows years of steadily increasing hostile rhetoric against LGBTQI+ people. Prominent politicians and media personalities have consistently spread harmful stereotypes, tropes and disinformation. They often claim homosexuality is a western import that goes against traditional Iraqi values.

  This rhetoric has increasingly translated into government action. For example, on 8 August 2023, the Communications and Media Commission issued a directive ordering all media outlets to replace the term ‘homosexuality’ with ‘sexual deviance’ in all published and broadcast language. The directive also banned the use of the word ‘gender’, which shows how the crackdown on LGBTQI+ rights is intertwined with broader issues, and is also used to target and silence women’s rights organisations working on gender-based violence.

  Sadly, as in many other countries, LGBTQI+ people in Iraq are being used as political pawns and scapegoats to distract from the government’s failure to provide for its people. Tensions are growing between the more conservative and religious groups in society and government and those that take a more secular approach to governance. The fact that conservatives have gained increasing support in successive elections allows laws like this to be passed. Such a law probably wouldn’t have been passed even a few years ago.

  What’s the situation of LGBTQI+ people in Iraq, and how do you expect it to change?

  The situation of LGBTQI+ people is extremely unsafe. Threats to their physical safety, including harassment, assault, arbitrary detention, kidnappings and killings, come from society at large – including family and community members as well as strangers – and from armed groups and state personnel. Human Rights Watch has documented cases of abductions, rape, torture and killings by armed groups. Impunity is widespread, and the government’s failure to hold perpetrators accountable sends the message that this violence is acceptable.

  With the passage of the new law, the already dire situation is expected to worsen. Tolerance for abuses has now been made explicit through legislation. As a result, an increase in violence is to be expected, along with an increase in the number of LGBTQI+ Iraqis fleeing the country to seek safety elsewhere. Unfortunately, it is becoming even harder for LGBTQI+ Iraqis to ensure their physical safety in the country, let alone lead fulfilling lives, find love, make friends and build links with others in their community.

  What are the challenges facing Iraqi LGBTQI+ rights organisations?

  The space for LGBTQI+ organisations in Iraq has long been extremely limited. For example, in May 2023, a court in the Kurdistan Region ordered the closure of Rasan, one of the few groups willing to publicly advocate for LGBTQI+ rights in the region. The reason the court gave for its closure was its activities ‘in the field of homosexuality’, and one piece of evidence cited was its use of rainbow colours in its logo.

  Organisations such as Rasan have previously been targeted under vaguely worded morality and public indecency laws that restrict freedom of expression. By criminalising the ‘promotion of homosexuality’, the new law makes the work of LGBTQI+ organisations even more dangerous. Any action in support of LGBTQI+ rights could be perceived as ‘promoting homosexuality’, which could lead to activities being banned or organisations being shut down. It will be almost impossible for LGBTQI+ rights organisations to operate openly.

  In addition, all civil society organisations in Iraq must register with the Directorate of NGOs, a process that includes submitting bylaws, lists of activities and sources of funding. But now, it is essentially impossible for LGBTQI+ organisations to operate transparently, because they can’t openly state their intention to support LGBTQI+ people without risking closure or prosecution. This leaves two options: stop working, or operate clandestinely with the risk of arrest hanging over them.

  Given the restrictive legal and social environment, many organisations operate from abroad. IraQueer, one of the most prominent LGBTQI+ advocacy groups, is based in Sweden.

  But despite the challenges, LGBTQI+ organisations continue to advocate for LGBTQI+ rights, help people fleeing persecution and work with foreign governments to put pressure on Iraq to roll back discriminatory policies. And they have made significant achievements, facilitating the safe passage of people fleeing persecution and broadening coalitions to advocate for LGBTQI+ rights internationally. Their perseverance in the face of adversity is inspiring.

  What international support do local LGBTQI+ groups need?

  Global organisations should use their capacity to sound the alarm and advocate for the repeal of the new law and the reversal of other discriminatory measures, and for impunity for violence against LGBTQI+ people in Iraq to be addressed.

  An effective strategy could be to focus on human rights violations. Equal protection from violence and equal access to justice are required under international law, including the International Covenant on Civil and Political Rights and the Arab Charter on Human Rights, both of which Iraq has signed. Advocacy for LGBTQI+ rights as human rights can put greater pressure on the Iraqi government to fulfil its obligations.

  It’s also essential to provide resources and support to local organisations in Iraq and in host countries where LGBTQI+ Iraqis seek refuge, to ensure people have access to basic needs and community support, and can live full lives without fear.

  Civic space in Iraq is rated ‘closed’ by theCIVICUS Monitor.

  Get in touch with Human Rights Watch through itswebsite, and follow@hrw and@SarahSanbar on Twitter.

• SINGAPORE: ‘The entrenched system instils fear, making progress for civil society slow and difficult’

  CIVICUS speaks about Singapore’s recent leadership change with Kirsten Han, an independent writer, journalist and member of the Transformative Justice Collective (TJC).

  The TJC is a group that works to demystify and challenge Singapore’s criminal punishment system, including by calling for the abolition of the death penalty.

  Who is new prime minister Lawrence Wong and what are the implications of his recent appointment?

  Lawrence Wong is a long-time civil servant who served as the principal private secretary to former prime minister Lee Hsien Loong before entering politics. He’s seen as a stable and reliable leader rather than a maverick. His political approach has so far emphasised continuity and stability, and there’s been little indication that significant changes in human rights and civil liberties will occur under his leadership. This suggests the status quo will largely be maintained, which isn’t positive for civil society.

  We expect a general election to be held relatively soon, but the exact timing is uncertain and will be determined by Wong. There’s speculation the election could take place around September or, failing that, before the end of the year, but no date has been set. This will be the first election with the fourth generation of the People’s Action Party (PAP) officially at the helm.

  The PAP has been in power since 1959 and has undergone three generational changes so far. While there may not be the same level of enthusiasm or reverence for this new generation of leaders, dramatic shifts in the political landscape are unlikely. Any change is expected to be gradual, with the PAP possibly losing more of its vote share, but I don’t expect major upheavals.

  There’s currently little information on Lawrence Wong’s policy agenda. He’s not yet laid out anything very specific about his administration’s priorities across domestic and foreign policy. Every new prime minister in Singapore has promised a more open Singapore, but this hasn’t materialised, particularly not in greater respect for fundamental rights like freedom of expression or assembly. While Wong’s leadership style may differ from his predecessor’s, what really matters is the substance. And I haven’t seen much to be hopeful about for civil society on this front.

  What are people’s expectations?

  There’s considerable public concern about the cost of living and housing. Property and rental prices have risen significantly, making housing a major issue Wong will have to address.

  Among politically engaged young Singaporeans, there’s increasing discussion about Singapore’s role and relationship with Israel, an issue the government is reluctant to address publicly. The government has imposed strict controls on public organising and activism on the Israel–Palestine issue, including blanket bans on public activities and restrictions on the use of Speaker’s Corner, a traditional space for public discourse. Several activists have been put under police investigation for activities in solidarity with Palestine.

  Young Singaporeans are also concerned about racism and racial justice, and would like to see greater openness to differing political views. There’s growing pressure for change and an increasing desire for political plurality, in general and in parliament.

  The government has so far been able to manage a lot of this pressure, including by investigating activists and maintaining tight controls. The entrenched system, with its many levers of power and control, continues to instil fear among people, making progress for civil society groups gradual and challenging. Nevertheless, momentum for change is slowly building.

  What’s Wong’s position on thedeath penalty?

  As far as I know, Wong has not publicly stated his position on the death penalty. This issue remains primarily the responsibility of the Minister for Home Affairs and Law, who retained his position in Wong’s cabinet reshuffle. I don’t expect the government’s stance on the death penalty to change any time soon. If Wong has a different opinion from what the minister has expressed, we’ve not seen any evidence of it. Personally, even if a difference did exist, I’m not convinced Wong’s position would prevail over the status quo.

  Progress has been extremely difficult for the abolitionist movement. It has become increasingly hard for death row prisoners to find legal representation for post-appeal applications. Many represent themselves, and even then, they are often accused of abusing the legal process. In May, the Minister for Home Affairs and Law said in parliament that they’re looking into how to tackle what they say are cases of abuses of legal process, suggesting it will become even more difficult for death row prisoners to file applications.

  This could have repercussions for activists who support them. In the same speech, the minister publicly highlighted my involvement in helping the mother of a death row prisoner file an application. He read out my email address in parliament, accusing me of helping abuse the court.

  In addition, the government is aggressively promoting its pro-death penalty narrative. It has declared an annual Drug Victims Remembrance Day and launched extensive campaigns to highlight the harm caused by drugs to argue that a war on drugs is needed. This narrative basically frames death penalty abolitionists as endangering or betraying Singapore by undermining its war on drugs. The implication is that activists are opposing the country’s efforts to protect people from the dangers of drugs.

  While this response from the government suggests our campaigning has had some impact, it also indicates a strong resistance to change. At present, there’s no sign the government is moving away from the death penalty; in fact, it’s doubling down on its position. The campaign for abolition remains an uphill battle.

  Do you expect the situation of civil society to change under Wong?

  Civil society in Singapore is under considerable pressure. Over the past decade, conditions have tightened and people continue to be investigated for exercising their right to freedom of assembly. As far as we can see, this trend is likely to continue. While there can always be hope that Wong will prove us wrong once he settles into his role, right now there’s no indication anything is going to improve.

  We continue to hear about people being called in for police investigations. Recently, a migrant worker who’d been the victim of harassment, Uddin MD Sharif, was unjustly repatriated. After police closed their investigation without finding the harasser, Sharif was forced to return to Bangladesh because he no longer had a work permit and was no longer needed for the investigation. He appealed to Wong, who Sharif said promised to convey the appeal to the immigration authorities, but nothing changed and Sharif was still sent back.

  This suggests that either Wong has little influence over discretionary policy or he did not prioritise a case that was so clearly unjust. This doesn’t inspire confidence Wong will be more progressive or active in defending human rights and workers’ rights, so I don’t expect civil society to have an easier time under his leadership.

  Civic space in Singapore is rated ‘repressed’ by theCIVICUS Monitor.

  Get in touch with the TJC through itswebsite,Facebook orInstagram page, and follow@kixes and@tjc_singapore on Twitter.

• TURKS AND CAICOS ISLANDS: ‘Advancing LGBTQI+ rights requires advocacy, awareness-raising and a concerted effort to foster a culture of inclusion’

  

  CIVICUS speaks with Tim Prudhoe, a lawyer with Stanbrook Prudhoe, about a legal challenge brought against discriminatory legislation against LGBTQI+ people and the struggle for equal rights of same-sex married partners in Turks and Caicos Islands (TCI).

  Stanbrook Prudhoe is a law firm specialising in complex and cross-border cases in the Caribbean region.

  What legal action are you involved in?

  Since 2021 we have been representing Tim Haymon, a US citizen, and Richard Sankar, a Turks and Caicos Islander, in legal proceedings against the TCI government. The case is now up on appeal after findings of breaches of rights protected under the TCI constitution. The couple married in Florida in 2020, but Tim has been denied an exemption from the need to obtain a work permit, although that exemption is available to the spouse of a Turks and Caicos Islander. There is no definition of ‘spouse’ under the relevant immigration legislation and the definition used in the letter of refusal referenced the marriage legislation. The Marriage Ordinance treats same-sex marriages as void.

  The refusal of the spousal exemption was by the Director of Immigration. Tim and Richard brought proceedings against him alleging breaches of the protected rights of equality before the Law, the right to family and private life and freedom from discrimination on the basis of sexual orientation.

  The trial took place in November 2022 and the decision was delivered in March 2024. The TCI Supreme Court upheld two of our three claims, finding violations of the constitutional rights to private and family life and to protection against discrimination on the basis of sexual orientation. However, the court did not uphold the claim of equality before the law. That is the subject of an appeal that will be heard on 23 and 24 October.

  The government has also appealed. Although it relied on no evidence during the trial, it now disputes any findings of constitutional breach. The government’s legal team remains headed by Ivan Hare KC of Blackstone Chambers in London, UK. Colours Caribbean, an LGBTQI+ rights organisation, successfully applied to join the appeal as an interested party.

  Before the claims were first started, Tim and Richard offered to abandon their legal action if the government enacted civil partnership legislation giving same-sex couples the same rights and benefits as opposite-sex couples. Unfortunately, this offer was ignored. Our appeal document itself repeats that offer. When we first made that offer, we even provided the government with a copy of the Cayman Islands legislation recognising civil partnerships as a precedent they could work from. But, again, no response.

  The Supreme Court’s decision was a significant step forward for LGBTQI+ rights in TCI. Former TCI Premier Michael Misick criticised it publicly, calling for Richard to have his Turks and Caicos Islander status revoked. If successful, the government’s appeal would be a major setback for equality. Either way, the outcome will have broader implications for LGBTQI+ rights across the Caribbean.

   

  What’s the status of LGBTQI+ rights in TCI, and what difference have recent Privy Council rulings made?

  The status of LGBTQI+ rights in TCI has a long way to go still. The government’s reliance on traditional moral standards and recent rulings on marriage issues by the UK Privy Council, the final court of appeal for TCI and other British Overseas Territories, are significant barriers to the advancement of LGBTQI+ rights.

  Recent Privy Council rulings on same-sex marriage in Bermuda and the Cayman Islands have significantly influenced the discourse on LGBTQI+ rights in TCI. The combined appeal on the right to marry in the Ferguson case in Bermuda and the Bodden Bush case in the Cayman Islands is particularly noteworthy.

  In Bermuda, same-sex couples had the right to marry for a period before the law was changed. Marriages already performed remained valid, but no new marriages could be celebrated – a situation that led to a case being taken to the European Court of Human Rights on the grounds that those left out were in practical effect facing discrimination. The Privy Council ruled that marriage was a unique legal institution and those jurisdictions could decide the scope of marriage without violating their constitutions.

  This gave us an insight into the Privy Council’s position. However, we distinguished our case in TCI by focusing on recognition of equivalent legal rights rather than the establishment of a right to marry. The government argued we were trying to introduce the right to marry via the back door, because of the attempt to invoke the spousal exemption from immigration restrictions.

  The Privy Council’s decision, which confirmed that jurisdictions can define marriage, wasn’t that surprising. TCI’s constitution, like Cayman’s, includes a preamble about TCI being a God-fearing nation. The government’s arguments in TCI appeal rely heavily on this. This is pretty odd, in light of the fact that it failed to present any actual evidence at trial.

  Despite these challenges, the LGBTQI+ community and its advocates continue to press for equality and recognition, reflecting a wider struggle in many small jurisdictions.

   

  What are the challenges for LGBTQI+ activism in TCI?

  A major challenge is stigma, which is keenly felt in a place as small as TCI. Despite the presence of people who identify as LGBTQI+, there isn’t a well-developed community infrastructure such as gay pubs or clubs. There’s been a slight improvement in visibility following recent decisions, but it hasn’t yet become a significant movement. For example, there’s now anticipation for an upcoming gay pride event, a notable first for the TCI, albeit modest, as a boat trip during Gay Pride Week in June.

  Living as an LGBTQI+ person in TCI often means necessarily leading a discreet life. While there are both locals and expatriates in same-sex relationships, such partnerships are not flaunted or embraced as a popular lifestyle choice. Rather, they tend to remain private, perhaps implicitly acknowledged by the community but not openly discussed.

  There’s a complex interplay between legal processes and government responses. Despite government appeals against decisions concerning LGBTQI+ rights, such actions are influenced by political dynamics, particularly when elections are approaching. The electorate consists solely of Turks and Caicos Islanders and has strong opinions on issues such as same-sex marriage, which politicians must navigate with caution.

  Constitutional protections theoretically guard against discrimination, but practical enforcement is uncertain. While legal recourse exists in principle, instances of intimidation and hostility, such as aggressive media commentary or social media harassment, deter people from pursuing anti-discrimination cases.

  In essence, while there is a legal framework to combat discrimination, the challenges of social stigma, political sensitivities and intimidation hinder progress towards full LGBTQI+ equality in TCI.

   

  What role has civil society played in the case?

  We’ve worked with the Pride group that’s recently emerged. Although not gay myself, I was pleased to attend their meeting to have a chance to explain relevant parts of the legal challenge. I have been a friend of Richard for many years, and more recently Tim as well.

  The only outside group involved was Colours Caribbean, whose involvement in the Cayman case I had been aware of for some time. When they heard of our legal victory, despite ongoing appeals from both sides, they approached us to join the proceedings. We don’t control their involvement, but the fact that we haven’t objected to it apparently influenced the court’s decision to give them a speaking role in the October appeal.

  What are your expectations?

  I expect that Tim and Richard will win their appeal on the failure by the judge to deal with the equality before the law claim. Whatever the outcome of the government’s appeal, I expect that the British government will have to exercise its power of override, as it did in the Cayman Islands context, to introduce civil partnership recognition legislation. In TCI, the Governor, a British-appointed official, has a constitutional power to legislate in the best interests of the jurisdiction. For example, previous governors have forced through legislation decriminalising same-sex sexual activity – a move still resisted in other parts of the Caribbean.

  I think our success will primarily relate to the anti-discrimination aspect of the lower court judge’s decision. Right now, we are in a perplexing situation: the judge has agreed with our argument that Richard and Tim’s constitutionally protected rights are being violated but he stopped short of implementing the necessary remedial measures.

  This creates a glaring inconsistency: existing violations are acknowledged but no remedy is provided. So if another same-sex couple were to seek spouse treatment, they would be denied the exemption, even though the Court has recognised this as a breach of constitutional rights. It is unlikely that the Court of Appeal will accept this situation. We argue that the judge made a fundamental mistake in finding breaches but not proposing remedies. Moreover, the judge’s criticism of our approach fails to recognise alternative ways of remedying the situation, such as amending immigration laws to include same-sex couples in the eligibility criteria for spousal exemptions.

  The delay in the judge’s decision, despite mounting pressure, suggests a rushed outcome in the end. It appears that in his haste, the judge failed to thoroughly explore possible solutions to the violations identified. I therefore anticipate that the Court of Appeal will scrutinise the lower court’s handling of the case and consider remedies in line with constitutional obligations.

  What are the next steps?

  The trajectory of progress depends heavily on the outcome of the Court of Appeal hearing. It’s unlikely a decision will be made immediately after the hearing, given the complexity and scale of the case. As we have argued that the lower court judge erred in his decision, the matter could be escalated to the Privy Council for constitutional review.

  However, in terms of broader progress and the continued advancement of LGBTQI+ rights, increased visibility and public awareness are paramount. The greater the exposure and discussion surrounding the case, particularly at the appellate level, the more likely it is that attitudes will evolve positively. Increased awareness fosters confidence within the LGBTQI+ community, encouraging people to live more openly and authentically.

  Historically, many people who identify as LGBTQI+ have felt compelled to leave TCI and seek more accepting environments abroad, primarily in cities in the UK or the USA. This trend underscores the prevailing reluctance to accept LGBTQI+ identities in the local context. It will undoubtedly take time to overcome this suspicion and foster a culture of acceptance, but progress is evident and ongoing.

  It is my hope as a legal practitioner that church groups engage in this discussion in a constructive and inclusive way, avoiding regressive interpretations of religious doctrine. Such interpretations, rooted in outdated beliefs, only serve to hinder progress. It’s worth noting that TCI, essentially a tourist destination, relies heavily on its reputation as a progressive and welcoming place. Failure to address LGBTQI+ rights risks tarnishing this image, with negative implications for tourism and therefore for economic prospects.

  Advancing LGBTQI+ rights in the TCI requires ongoing advocacy, awareness-raising and a concerted effort to foster a culture of inclusion and acceptance within the local community and wider society.

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  Get in touch with Stanbrook Prudhoe through itswebsite and connect with Tim Prudhoe onLinkedin.