Below is a compilation of important, international jurisprudence rendered from 1986 - 2009 regarding lesbian, gay, bisexual and transgender rights.

European Court  | Inter-American System  |  United Nations  |  National Courts

European Court

2009 Case of SCHLUMPF v. Switzerland: respect for private life and freedom from discrimination

The Court found that Nadine Schlumpf's right to respect for private life under Article 8 ECHR had been violated. The Court specifically called into question the no-exception status of the case-law at the national level (the two-year pre-sex-change "observation" rule), which in the applicant's very particular situation (relatively high age of sixty-three) failed to strike a fair balance.

2008 Case of E.B. v. France: adoption and parental rights

The Court found that "if the reasons advanced for such a difference in treatment were based solely on considerations regarding the applicant's sexual orientation, this would amount to discrimination under the Convention (p. 93)." The Court pointed out that French law permits adoption by a single individual, thereby opening up the possibility of adoption by a single homosexual, which is not disputed. Against the background of the domestic legal provisions, it considered that the reasons put forward by the Government could not be regarded as particularly convincing and weighty such as to justify refusing to grant the applicant authorization.

2007 Case of L. v. Lithuania: gender reassignment

The Court found that the circumstances of the case revealed "a limited legislative gap in gender-reassignment surgery," which left the applicant in a situation of distressing uncertainty vis-à-vis his private life and the recognition of his true identity. (p.59) The Court also stated: "Whilst budgetary restraints in the public health service might have justified some initial delays in implementing the rights of transsexuals under the Civil Code, over four years have elapsed since the relevant provisions came into force and the necessary legislation, although drafted, has yet to be adopted (p.59)."

2007 Case of Baczkowski and Others v. Poland: freedom of assembly

The Court was of the view that it is important for the effective enjoyment of freedom of assembly that the applicable laws provide for reasonable time-limits within which the State authorities, when giving relevant decisions, should act. The applicable laws provided for time limits for the applicants to submit their requests for permission. In contrast, the authorities were not obliged by any legally binding time frame to give their final decisions before the planned date of the demonstration. The Court was therefore not persuaded that the remedies available to the applicants could provide adequate redress in respect of the alleged violations of the Convention.

2006 Case of Grant v. United Kingdom: gender reassignment

In its decision, the Court took into account the following: the applicant's personal circumstances as a transsexual; current medical and scientific considerations; the state of European and international consensus; and impact on the birth register and social and domestic law developments. The Court found that the respondent Government could no longer claim that the matter fell within their margin of appreciation. As there were no significant factors of public interest to weigh against the interest of these individual applicants in obtaining legal recognition of their gender re-assignment, it reached the conclusion that the fair balance that was inherent in the Convention now tilted decisively in favor of the applicants. Accordingly, there had been a failure to respect their right to private life in breach of Article 8 of the Convention.

2006 Case of R. H. v. Austria: age of consent

The Court observed that this case raised the same issue as L. and V. v. Austria (cited below). It noted, in particular, that like the applicants in the L. and V. case, the applicants in the present case were convicted under Article 209 of the Criminal Code and that the Government had not offered convincing and weighty reasons justifying the maintenance in force of Article 209 of the Criminal Code. It also found that it was not necessary to rule on the question whether there had been a violation of Article 8 taken alone.

2005 Case of H.G. and G.B. v. Austria: respect for private life and freedom from discrimination

The Court observed that this case raised the same issue as L. and V. v. Austria (cited below). It noted, in particular, that like the applicants in the L. and V. case, the applicants in the present case were convicted under Article 209 of the Criminal Code and that the Government had not offered convincing and weighty reasons justifying the maintenance in force of Article 209 of the Criminal Code. It also found that it was not necessary to rule on the question whether there had been a violation of Article 8 taken alone.

2005 Case of Wolfmeyer v. Austria: respect for private life and freedom from discrimination

The Court observed that this case raised the same issue as L. and V. v. Austria (cited below). It noted, in particular, that like the applicants in the L. and V. case, the applicants in the present case were convicted under Article 209 of the Criminal Code and that the Government had not offered convincing and weighty reasons justifying the maintenance in force of Article 209 of the Criminal Code. It also found that it was not necessary to rule on the question whether there had been a violation of Article 8 taken alone.

2004 Case of Woditschka and Wilfling v. Austria: respect for private life and freedom from discrimination

The Court observed that this case raised the same issue as L. and V. v. Austria (cited below). It noted, in particular, that like the applicants in the L. and V. case, the applicants in the present case were convicted under Article 209 of the Criminal Code and that the Government had not offered convincing and weighty reasons justifying the maintenance in force of Article 209 of the Criminal Code. It also found that it was not necessary to rule on the question whether there had been a violation of Article 8 taken alone.

2004 Case of B.B. v. United Kingdom: age of consent, respect for private life and freedom from discrimination

The Court noted that, while domestic law had since been amended, the present applicant was prosecuted under legislation which made it a criminal offence to engage in homosexual activities with men under 18 years of age while the age of consent for heterosexual relations was fixed at 16 years of age. The Court saw no reason to reach a conclusion different to those reached in the cases of S.L. v. Austria and L. and V. v. Austria. Therefore, it found that the existence of, and the applicant's prosecution under, the legislation applicable at the relevant time constituted a violation of Article 14 taken in conjunction with Article 8 of the Convention.

2003 Case of Karner v. Austria: housing tenure, social benefits

The Court proclaimed that the aim of protecting the family in the traditional sense was rather abstract, and a broad variety of concrete measures may be used to implement it. In cases in which the margin of appreciation afforded to States is narrow, as is the position where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require that the measure chosen is in principle suited for realizing the aim sought. (...) Accordingly, the Court found that the Government had not offered convincing and weighty reasons justifying the narrow interpretation of section 14(3) of the Rent Act that prevented a surviving partner of a same-sex partnership from relying upon that provision.

2003 Case of van Kück v. Germany: gender reassignment

Considering recent developments (see I. v. the United Kingdom and Christine Goodwin, both cited below), gender identity is one of the most intimate areas of a person's private life. The burden placed on a person in such a situation to prove the medical necessity of treatment, including irreversible surgery, appears therefore disproportionate. In these circumstances, the Court found that the interpretation of the term "medical necessity" and the evaluation of the evidence in this respect were not reasonable.

2003 Case of S.L. v. Austria: age of consent

The Court ruled that to the extent that Article 209 of the Criminal Code embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority, such negative attitudes could not of themselves be considered by the Court to amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different: race, origin or color. In conclusion, the Court ruled unanimously that the inequality of age of consent constituted a violation of Article 14 taken in conjunction with Article 8, and also unanimously ruled that there was no need to examine the complaints lodged under Article 8 alone.

2003 Case of L. and V. v. Austria: age of consent

The applicants complained of a difference in treatment based on their sexual orientation. In this case, the Court reiterated that sexual orientation is a concept covered by Article 14, differences based on sexual orientation require particularly serious reasons by way of justification. The Court thus reached the conclusion that in the absence of any objective and reasonable justification, the maintenance of a higher age of consent for homosexual acts than for heterosexual ones violated Article 14 taken in conjunction with Article 8.

2002 Case of Waite v. United Kingdom: age of consent

The Court stated that in this case the decision for the applicant's recall to prison included reference to his relationship with a minor who was male. At that time, the age of consent for male consensual adult homosexual relations was set at 18, while the age of consent for heterosexual relations was 16. The age for male homosexuals was not brought down to 16 until a few years later when the Sexual Offences (Amendment) Act 2000 came into force. The Court did not consider that it must necessarily be assumed that it would not have been of concern to the probation service if the applicant, a prisoner with a life sentence, had become involved in a relationship with a girl of 16 years. In their assessment of any risk of danger to the public by a person convicted of murder, it would have been inevitable that his relationships, as with other aspects of his life affecting his stability, would have come under scrutiny, whether contrary to the criminal law or not. Furthermore, as the Government pointed out, the relationship with MM was known for some months without any action being taken. It appears that it was his arrest for drugs offenses and his failure to keep in contact with his probation officer which gave rise to serious alarm. While therefore the relationship with MM was referred to in the reports, the Court did not find that it can be considered as playing a determinative role in his recall to prison.

2002 Case of Perkins and R. v. United Kingdom: military service

The Court recalled that in its judgments in the above-cited cases of Lustig-Prean and Beckett (§§ 63-68 and 80-105) and Smith and Grady (§§ 70-75 and 87-112) it found that the investigation of the applicants' sexual orientation, and their discharge from the armed forces on the grounds of their homosexuality pursuant to the absolute policy of the Ministry of Defense against the presence of homosexuals in the armed forces, constituted direct interferences with the applicants' right to respect for their private lives which could not be justified under the second paragraph of Article 8 of the Convention as being "necessary in a democratic society". Therefore, the Court found a violation of Article 8 and further recalled that, in those cases, it considered (at §§ 108 and 115, respectively) that the applicants' complaints under Article 14 of the Convention that they had been discriminated against on grounds of their sexual orientation by reason of the existence and application of the policy of the Ministry of Defense amounted in effect to the same complaint, albeit seen from a different angle, that the Court had already considered in relation to Article 8 of the Convention.

2002 Case of Beck, Copp and Bazeley v. United Kingdom: military service

The Court recalled that in its judgments in the cases of Lustig-Prean and Beckett and Smith and Grady it found that the investigation of the applicants' sexual orientation, and their discharge from the armed forces on the grounds of their homosexuality pursuant to the absolute policy of the Ministry of Defense against the presence of homosexuals in the armed forces, constituted direct interferences with the applicants' right to respect for their private lives. These direct interferences could not be justified under Article 8 of the Convention as being "necessary in a democratic society"; and therefore, the Court found them to be in violation of Article 8. The Court further recalled that, in those cases, it considered that the applicants' complaints under Article 14 of the Convention that they had been discriminated against on grounds of their sexual orientation by reason of the existence and application of the policy of the Ministry of Defense amounted, in effect, to the same complaint, albeit seen from a different angle, that the Court had already considered in relation to Article 8 of the Convention.

2002 Case of Christine Goodwin v. United Kingdom: gender reassignment

In this case, as in many others, the applicant's gender re-assignment was carried out by the national health service, which recognizes the condition of gender dysphoria and provides, inter alia, re-assignment by surgery, with a view to achieving as one of its principal purposes as close an assimilation as possible to the gender in which the transsexual perceives that he or she properly belongs. The Court was struck by the fact that, nonetheless, the gender re-assignment which was lawfully provided was not met with full recognition in law, which might be regarded as the final and culminating step in the long and difficult process of transformation which the transsexual has undergone. The coherence of the administrative and legal practices within the domestic system must be regarded as an important factor in the assessment carried out under Article 8 of the Convention. Where a State has authorized the treatment and surgery alleviating the condition of a transsexual, financed or assisted in financing the operations and indeed permitted the artificial insemination of a woman living with a female-to-male transsexual (as demonstrated in the case of X., Y. and Z. v. the United Kingdom), it appeared illogical to refuse to recognize the legal implications of the result to which the treatment leads.

2002 Case of I. v. United Kingdom: gender reassignment

The Court noted that the unsatisfactory nature of the current position and the plight of transsexuals in the United Kingdom has been acknowledged in the domestic courts (see Bellinger v. Bellinger) and by the Interdepartmental Working Group which surveyed the situation in the United Kingdom and concluded that, notwithstanding the accommodations reached in practice, transsexual people were conscious of certain problems which did not have to be faced by the majority of the population. Having regard to the above considerations, the Court found that the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. Since there were no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, it reached the conclusion that the fair balance that is inherent in the Convention newly tilted decisively in favor of the applicant.

2002 Case of Fretté v. France: adoption and parental rights

The Court considered it quite natural that the national authorities- whose duty it is in a democratic society also to consider, within the limits of their jurisdiction, the interests of society as a whole- should enjoy a wide margin of appreciation when they are asked to make rulings on such matters. By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions. Since the delicate issues raised in the case, therefore, touched on areas where there was little common ground amongst the member States of the Council of Europe and, generally speaking, the law appeared to be in a transitional stage, a wide margin of appreciation must be left to the authorities of each State. In short, the justification given by the Government appeared objective and reasonable and the difference in treatment complained of was not discriminatory within the meaning of Article 14 of the Convention.

2000 Case of A.D.T. v. United Kingdom: criminal offense to engage in homosexual activities

The Court's comments did not go beyond raising the question "whether the sexual activities of the applicant fell entirely within the notion of "private life." The sole element in the present case which could give rise to any doubt about whether the applicant's private life was involved was the video-recording of the activities. No evidence had been put before the Court to indicate that there was any actual likelihood of the contents of the tapes being rendered public, deliberately or inadvertently. In particular, the applicant's conviction related not to any offense involving the making or distribution of the tapes, but solely to the acts themselves. The Court found it most unlikely that the applicant, who had gone to some lengths not to reveal his sexual orientation, and who had repeated his desire for anonymity before the Court, would knowingly be involved in any such publication.

1999 Case of Salgueiro Da Silva Mouta v. Portugal: adoption and parental rights

The Court did not deny that the Lisbon Court of Appeal had, above-all else, regard for the child's interests when it examined a number of points of fact and of law which could have tipped the scales in favor of one parent rather than the other. However, the Court observed that in reversing the decision of the Lisbon Family Affairs Court and, consequently, awarding parental responsibility to the mother rather than the father, the Court of Appeal introduced a new factor, namely that the applicant was a homosexual and was living with another man. The Court was accordingly forced to conclude that there was a difference of treatment between the applicant and M.'s mother which was based on the applicant's sexual orientation, a concept which is undoubtedly covered by Article 14 of the Convention. The Court reiterated that the list set out in that provision is illustrative and not exhaustive, as is shown by the words "any ground such as" (see the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, pp. 30-31, & 72).

1999 Case of Lustig-Prean and Beckett v. United Kingdom: military service

The Court was of the view that the investigations by the military police into the applicants' homosexuality, which included detailed interviews with each of them and with third parties on matters relating to their sexual orientation and practices, together with the preparation of a final report for the armed forces' authorities on the investigations, constituted a direct interference with the applicants' right to respect for their private lives. The Court observed that the essential justification offered by the Government for the policy and for the consequent investigations and discharges was the morale of service personnel and, consequently, of the fighting power and the operational effectiveness of the armed forces. The Court found no reason to doubt that the policy was designed to ensure the operational effectiveness of the armed forces or that investigations were, in principle, intended to establish whether the person concerned was a homosexual to whom the policy was applicable. To this extent, therefore, the Court considered that the resulting interferences pursued the legitimate aims of "the interests of national security" and "the prevention of disorder."

1999 Case of Smith and Grady v. United Kingdom: military service

The Court found that the investigation process was of an exceptionally intrusive character and that the administrative discharge of the applicants had, as Sir Thomas Bingham MR described, a profound effect on their careers and prospects. Accordingly, the Court concluded that convincing and weighty reasons were not offered by the Government to justify the policy against homosexuals in the armed forces or, therefore, the consequent discharge of the applicants from those forces. In such circumstances, the Court considered that the Government had also not offered convincing and weighty reasons to justify the continued investigation of the applicants' sexual orientation once they had confirmed their homosexuality to the air force authorities. In sum, the Court found that neither the investigations conducted into the applicants' sexual orientation, nor their discharge on the grounds of their homosexuality in pursuance of the Ministry of Defense policy, were justified under Article 8(2) of the Convention.

1993 Case of Modinos v. Cyprus: criminal offense to engage in homosexual activities

The Court first observed that the prohibition of male homosexual conduct in private between adults still remained on the statute book. In the Court's view, whatever the status in domestic law of these remarks, it could not fail to take into account such a statement from the highest court of the land on matters so pertinent to the issue before it. Since the Dudgeon judgment, the Attorney-General, who is vested with the power to institute or discontinue prosecutions in the public interest, had followed a consistent policy of not bringing to court criminal proceedings in respect of private homosexual conduct on the basis that the relevant law was a dead letter.

1992 Case of B. v. France: gender reassignment

The Court reached the conclusion that the applicant was placed in a daily situation which was not compatible with the respect due to her private life. Consequently, even having regard to the State's margin of appreciation, the fair balance which must be struck between the general interest and the interests of the individual had not been attained, and there had been a violation of Article 8.

1988 Case of Norris v. Ireland: criminal offense to engage in homosexual activities

The Court agreed with the Commission that, with regard to the interference with an Article 8 right, the present case was indistinguishable from the Dudgeon case. The laws in question were applied so as to prosecute persons in respect of homosexual acts. Above all, enforcement of the legislation was a matter for the Director of Public Prosecutions who may not fetter his discretion with regard to each individual case by making a general statement of his policy in advance. A prosecution may, in any event, be initiated by a member of the public acting as a common informer.

1981 Case of Dudgeon v. United Kingdom: criminal offense to engage in homosexual activities

The Court's task was to determine whether the reasons purported to justify the interference in question were relevant and sufficient under Article 8. The Court was not concerned with making any value-judgment as to the morality of homosexual relations between adult males. The Court began by examining the reasons set out by the Government in their arguments contesting the Commission's conclusion that the penal prohibition of private consensual homosexual acts involving male persons over 21 years of age was not justified under Article 8(2).

Inter-American System

2008 Case Karen Atala v. Chile: adoption and parental rights

The Commission found prima facie that the arguments raised questions related with the right to equal protection recognized in Article 24, which corresponded to an analysis in the merits stage. The petitioners alleged that the Supreme Court Justice of Chile accorded a different treatment to Ms. Atala and her former spouse in its ruling on the custody of their daughters, in which the sexual orientation of Ms. Atala was the decisive factor in granting permanent custody to the father. They claimed that the distinction based on Ms. Atala's homosexuality in the custody suit was neither objective nor reasonable and it did not have a legitimate purpose, in contravention of international human rights principles. They also contended that the Court's ruling had a disproportionate and limiting impact on the exercise of rights by homosexual parents, by promoting that they never retain custody of their children due to stereotypical conceptions of their ability to care and create a healthy family environment for them.

1999 Case Martha Lucia Alvarez v. Colombia: conjugal visitation rights

The Commission found that the appropriate administrative and judicial actions were taken to correct the alleged violations. Domestic remedies were effectively exhausted with the decision of the Constitutional Court of Colombia not to review the decision on the tutela. Therefore, the Commission found that the admissibility requirement set forth in Article 46(1)(a) had been met.

United Nations

2007 X contra Colombia: pension rights

The Committee recalled its earlier jurisprudence that the prohibition against discrimination under Article 26 comprised also discrimination based on sexual orientation. It also recalled that in previous communications the Committee found that differences in benefit entitlements between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry or not, with all the ensuing consequences. The Committee also noted that, while it was not open to the author to enter into marriage with his same-sex permanent partner, the Act does not make a distinction between married and unmarried couples but between homosexual and heterosexual couples. The Committee found that the State party had put forward no argument that might demonstrate that such a distinction between same-sex partners, who are not entitled to pension benefits, and unmarried heterosexual partners, who are so entitled, is reasonable and objective.

2003 Young v. Australia: pension rights

The Committee recalled its earlier jurisprudence that the prohibition against discrimination under Article 26 comprised also discrimination based on sexual orientation. It recalled that in previous communications the Committee found that differences in the receipt of benefits between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry with all the ensuing consequences. From the contested sections of the VEA, the Committee ruled that individuals who are part of a married couple or of a heterosexual cohabiting couple (who can prove that they are in a "marriage-like" relationship) fulfill the definition of "member of a couple" and therefore of a "dependant," for the purpose of receiving pension benefits. In this case, it was clear that the author, as a same sex partner, did not have the possibility of entering into marriage. Neither was he recognized as a cohabiting partner of Mr. C, for the purpose of receiving pension benefits, because of his sex or sexual orientation. The Committee recalled its jurisprudence that not every distinction amounted to discrimination under the Covenant, as long as it was based on reasonable and objective criteria.

1994 Toonen v. Australia: criminal offence to engage in homosexual activities

The Committee was called upon to determine whether Mr. Toonen had been the victim of an unlawful or arbitrary interference with his privacy, contrary to Article 17(1) and whether he had been discriminated against in his right to equal protection of the law, contrary to Article 26. The prohibition against private homosexual behavior is provided for by law, namely, sections 122 and 123 of the Tasmanian Criminal Code. As to whether it may be deemed arbitrary, the Committee recalled that pursuant to its general comment 16 (32) on Article 17, the "introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances." The Committee interpreted the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

National Courts

2009 Iowa Supreme Judicial Court - Varnum v. Brien: legal recognition of same-sex couples

The Court stated that the exclusion of gay and lesbian people from the institution of civil marriage did not substantially further any important governmental objective and that the legislature had excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. The Court stated its constitutional duty to ensure equal protection of the law and that faithfulness to that duty required it to hold that Iowa's marriage statute, Iowa Code section 595.2, violated the Iowa Constitution.

2009 Supreme Court of Appeals of Turkey - Lambda Istanbul: freedom of assembly

The Supreme Court of Appeals rejected the local court's decision to close Lamda Istanbul on the grounds that reference to LGBT people in the name and the statute of the association did not constitute opposition to Turkish moral values. The Court's judgment also recognized the right of lesbian, gay, bisexual and transgender individuals to form associations. The Supreme Court of Appeals referred to Article 20 of the United Nations' Universal Declaration of Human Rights, Article 22 of the UN Covenant on Civil and Political Rights, Article 9 of the European Human Rights Convention, Article 10 of the Turkish Constitution, Article 56 of the Turkish Civil Law and Article 3 of the Association Law, and came to the following conclusion: "Should the association go against its own regulations in the future by carrying out activities to encourage lesbian, gay, bisexual, transvestite and transsexual orientations and to make them more common, Articles 30 and 31 of the Association Law would apply and an application for the dissolution of the association could be made."

2009 Mexico Supreme Court of Justice: gender modification on identity documents

The Supreme Court of Justice unanimously decided to grant protection to a transsexual by ordering that a new birth certificate be granted to him. Also, the Court indicated that the constitutional principle of nondiscrimination and protection of human dignity had to be preserved. Therefore, it declared the unconstitutionality of Article 138 of the Civil Code for Federal District.

2009 Constitutional Court of Colombia - Sentence C-029 de 2009: equal rights for same-sex couples 

The Constitutional Court granted civil, political, social, economic, immigration and criminal rights to gay and lesbian couples. Before this case, those rights had been reserved for non-married heterosexual couples. The Court stated that equal rights could not allow qualifications or exceptions based on sexual orientation.

2008 Supreme Court of Nepal - Order of Certiorari, Mandamus, Prohibition Issued: criminal offense to engage in homosexual activities

The Court stated that no one possessed the right to question how two adults performed sexual intercourse and whether that intercourse was natural or unnatural. Furthermore, the Court noted that in the same manner that the right to privacy was secured to heterosexual individuals, it was equally secured to people who have different gender identity and sexual orientation. The court further held that gender identity and sexual orientation of homosexuals and third gender could not be ignored by treating the sexual intercourse among them as unnatural. The court took the view that both the selection of a sexual partner and the decision of marital relation was a matter falling entirely within the right to self-determination. The Court appeared to be in favor of gradual internalization of international practices of respecting minority rights. It called upon the state to create an appropriate environment and to make legal provisions to enable the LGBTI people to enjoy fundamental rights. It also called for provisions in the new constitution to be made by the Constituent Assembly, guaranteeing non-discrimination on the ground of "gender identity" and the "sexual orientation" in line with the Bill of Rights of the Constitution of South Africa. It issued an order to the Government of Nepal to form a Committee in order to undertake the study of all issues in this regard and to make the legal provisions after considering recommendations made by that Committee.

2008 Constitutional Court of Colombia - Sentence C-336 de 2008: pension rights

The Court declared the Constitutionality of the Law, but it clarified that same-sex couples must also be beneficiaries of such civil and economic rights.

2008 Constitutional Court of Colombia - Sentence T-912 de 2008: gender assignment

The Court ruled that a five year old intersex child had the right to choose his/her own gender, against the family's wishes. The Court indicated that an interdisciplinary group must be formed so that they could educate and assist the intersex child in the decision about gender assignment surgery and provision of hormonal treatments. In case that the child's answer was affirmative and in agreement with the group of doctors, the institution must conduct the operation.

2007 Constitutional Court of Colombia - Sentence C- 075 de 2007: legal recognition of same-sex couples

The Constitutional Court declared the constitutionality of Law 54, but the Court clarified that such law should be applied to same-sex couples as heterosexual couples. The Court applied the test of proportionality in favor of same-sex couples.

2007 Constitutional Court of Colombia - Sentence C-811 de 2007

The court found that if a statute mandated health coverage for family members, and was defined to include spouses and

cohabitants, then it also must be extended to same-sex couples. The court held that the constitution prohibited

discrimination on the basis of sexual orientation. To provide benefits to opposite-sex cohabitants but not to same-sex cohabitants, the court believed, would violate principles of human dignity and equality. The court also stated that same-sex cohabitants need not live together for two years to establish eligibility if they could get a judge or notary to certify they were bona fide cohabitants.

2007 Civil Court of Rancagua, Chile: name and gender modification on identity documents

The Civil Court of Rancagua acceded to his request to change his sex and name, although the process of sexual reassignment was not yet finalized.

2007 Fourth Court of Letters of Antofagasta, Chile: name and gender modification on identity documents

The Judge of the Fourth Court of Letters of Antofagasta, Susana Pamela Brave Tobar, determined that she had right to change her name and sex in the birth registry, without undergoing gender re-assignment surgery.

2006 Constitutional Court of Peru: name modification on identity documents

In April 2006, the Constitutional Court of Peru emitted a favorable sentence to Karen Mañuca Quiroz Cabanillas. However, the sentence of the Constitutional Court only alluded to the name change of the plaintiff, but not to the modification of sex; therefore, her identity card remained masculine.

2005 Fijian High Commissioner - Thomas McCosker v. The State Fiji: criminal offence to engage in homosexual activities

In his judgment, Judge Winters, the Fijian High Commissioner, declared that both sections 175 and 177 of the Penal code which criminalized both "private consensual sex against the course of nature between adults" and the "private consensual sexual conduct of adult males" were inconsistent with the Constitution and that prosecutions engaged on that basis were invalid.

2005 Federal Oral Court No 2 in Cordoba City, Argentina: conjugal visitation rights

Judge Jose Perez Villalobo, who presided over Federal Oral Court 2 in Cordoba City, ruled that same-sex partners in prison must have conjugal visitation rights.

2003 Supreme Court of the United States of America - Lawrence v. Texas: criminal offence to engage in homosexual activities

The Supreme Court ruled that a Texas law classifying homosexual intercourse as illegal sodomy violated the privacy and liberty of adults to engage in private, intimate conduct under the 14th amendment.

2003 Constitutional Court of South Africa - J and B v. the Director-General of Home Affairs and Others: protected status of same-sex couples

The Court stated that because a statute was challenged on the ground that it was under-inclusive and for that reason discriminated unfairly against gays and lesbians on the grounds of their sexual orientation, difficult questions had arisen in the determination of particular relationships entitled to protection. The Court also stated that the precise parameters of relationships entitled to constitutional protection would often depend on the purpose of the statute. The Court then ruled that Section 5 of the Children's Status Act 82 of 1987 was inconsistent with the Constitution because the word "married" appeared in that section, yet the words "or permanent same-sex life partner" after the word "husband" did not appear in that section.

2003 Massachusetts Supreme Judicial Court - Goodridge v. Department of Public Health: legal recognition of same-sex couples

The Court ruled that the denial of marriage licenses to same-sex couples violated provisions of the state constitution guaranteeing individual liberty and equality, and was not rationally related to a legitimate state interest. Superior Court of Massachusetts at Suffolk vacated and remanded.

2002 Constitutional Court of South Africa - Satchwell v. President of Republic of South Africa and Another: protected status of same-sex couples

In this case, the respondents' counsel conceded without qualification that permanent same-sex life partners are entitled to found their relationships in a manner which accords with their sexual orientation and, furthermore, that such relationships ought not to be the subject of unfair discrimination. But the respondents submitted that the order recognizing only the rights of permanent same-sex life partners was itself invalid because it failed to make provision for unmarried heterosexuals in permanent relationships. The Court ruled that the case was concerned only with same-sex relationships; therefore, the respondents' submission had no merit in this case.

2002 Constitutional Court of South Africa - Du Toit and Another v. Minister of Welfare and Population Development and Others: adoption and parental rights

In a unanimous judgment, the Court found that the statutory provisions of the Child Care Act and Guardianship Act infringed constitutional rights. The restriction of joint adoption to married persons discriminated on the grounds of sexual orientation and marital status.  Furthermore, the dignity rights of the first applicant were infringed because they denied her due recognition as a parent of the two children. Finally, the Court held that the legislation infringed the principle of the paramountcy of a child's best interests. Accordingly, this Court confirmed the order made by the High Court and provided that the legislation must now allow same-sex life partners jointly to adopt children where they were otherwise found to be suitable parents.

1999 Constitutional Court of South Africa - National Coalition for Gay and Lesbian Equality and Others v. Minister of Home Affairs and Others: protected status of same-sex couples

This case was referred to the Constitutional Court by the Cape of Good Hope High Court, which declared section 25(5) of the Aliens Control Act 96 of 1991 unconstitutional. Section 25(5) failed to give persons, who were partners in permanent same-sex life partnerships, the benefits it extended to "spouses" under this section. The Court rejected the argument that the word "spouse" could be interpreted so as to include a permanent South African resident who was in a permanent same-sex life partnership with a foreign national. It therefore became necessary for the Court to consider the constitutional validity of section 25(5). The Court ruled that this section discriminated unfairly against gays and lesbians on the intersecting and overlapping grounds of sexual orientation and marital status and seriously limited their equality rights and their right to dignity.  It did so in a way which was not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The Court accordingly held that the omission from section 25(5) of partners in permanent same-sex life partnerships was inconsistent with the Constitution.  Having come to this conclusion it was unnecessary to consider whether any of the freedom of movement rights were in any way limited by section 25(5). In order to remedy the constitutional defect the Court decided the words "or partner in a permanent same-sex life partnership" should be added to the section.  Permanent life partners were defined as "ones who have an established intention to cohabit with one another permanently." The Court emphasized that the Legislature could refine and alter the remedy of the court within constitutional limits.

1999 Supreme Court of Canada - M. v. H.: legal recognition of same-sex couples 

The Court held that the exclusion of same-sex couples from the definition of common-law spouse under section 29 of the Ontario Family Law Act was in violation of equality rights under section 15(1) of the Canadian Charter of Rights and Freedoms, and could not be justified under section 1 of the Charter, which allows only "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The ruling applied only to cohabiting partners in a common-law marriage. As a remedy, the Court struck down section 29 altogether rather than read in any necessary changes, but the ruling was suspended for six months to give the province time to change it. The section was subsequently amended by the Legislative Assembly of Ontario to include all common-law spouses, whether same-sex or different-sex.

1999 Correctional Court No 1 in Bahia Blanca, Argentina: Criminal offence to engage in homosexual activities

The Correctional Court No 1, in Bahia Blanca (Buenos Aires Province), declared that Article 92.3 of the province's Code of Misdemeanors to be unconstitutional. Article 92.3 criminalizes individuals who dress and attempt to pass as a person of the opposite sex. The Court stated that Article 92.3 contravenes Article 19 of the National Constitution, which protects an individual's private and intimate life, as well as other aspects of her/his spiritual or physical personality, such as her/his: bodily integrity, image, and free choice of lifestyle.

1998 Supreme Court of Canada - Vriend v. Alberta: discrimination on the basis of sexual orientation

The Court concluded that the IRPA, by reason of the omission of sexual orientation as a protected ground, clearly violated section 15 of the Charter. The Court further stated that IRPA in its under-inclusive state created a distinction which resulted in the denial of equal benefit and protection of the law on the basis of sexual orientation, a personal characteristic which has been found to be analogous to the grounds enumerated in section 15. Furthermore, the Court stated that such denial of equal benefit and protection was sufficient to conclude that discrimination was present and therefore was a violation of section 15. Additionally, the serious discriminatory effects of the exclusion of sexual orientation from the Act reinforced the Court's conclusion.

1998 Constitutional Court of South Africa- National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others: decriminalization of homosexuality  

In this case, the Constitutional Court was asked to confirm an order made by the Witwatersrand High Court that the following laws were unconstitutional and invalid: the common law offence of sodomy, the inclusion of sodomy in schedules to certain Acts of Parliament, and a section of the Sexual Offences Act which prohibited sexual conduct between men in certain circumstances. Although technically the Constitutional Court only had to decide on the constitutionality of the inclusion of sodomy in the schedules and of the section of the Sexual Offences Act, this could not be done without also considering the constitutionality of sodomy as a common law offence. The Court found that the above offences, all of which were aimed at prohibiting sexual intimacy between gay men, violated the right to equality in that they unfairly discriminated against gay men on the basis of sexual orientation.  Such discrimination was presumed to be unfair since the Constitution expressly includes sexual orientation as a prohibited ground of discrimination. The Court therefore concluded that the common law offence of sodomy, its inclusion in certain statutory schedules, and the relevant section of the Sexual Offenses Act were not reasonable or justifiable limitations on the rights of gay men to equality, dignity and privacy. The offences were accordingly found to be unconstitutional and invalid.

1997 Commercial and Civil Court No 8 in Quilmes City, Argentina: name and gender modification on identity documents

The Court indicated that a transsexual post-operate woman could modify her identification document according to her chosen sex. Although this was the first sentence in Argentina about this topic, now there is much similar jurisprudence.

1996 Supreme Court of the United States of America - Romer v. Evans: protected status of homosexuals under state law

An amendment to the Colorado Constitution that prevented protected status under the law for homosexuals or bisexuals was struck down because it was not rationally related to a legitimate state interest.

1995 Supreme Court of Canada - Egan v. Canada: legal recognition of same-sex couples 

The Court ruled that the exclusion of same-sex couples from eligibility for spousal allowance under the Old Age Security Act amounted to a violation of section 15 of the Canadian Charter of Rights and Freedoms because the denial of the benefit was rooted in an irrelevant distinction based upon sexual orientation, which was an analogous ground of discrimination. Further, for the reasons outlined above, the impugned legislation was not justified under section 1 of the Charter.

1995 Supreme Court of Canada - Miron v. Trudel: legal recognition of same-sex couples 

When faced with a standard automobile policy prescribed by provincial legislation extending accident benefits to "spouse" of policy holder and where the term "spouse" did not include unmarried common law spouse, the Supreme Court of Canada deliberated upon whether limitation of benefits to married persons violates section 15(1) of Canadian Charter of Rights and Freedoms. The Court further dealt with whether that violation was justifiable under section 1 of the Charter. The Court concluded that "marital status" was an analogous ground for discrimination under section 15. The Court thus held that an insurance benefit provided only to married couples discriminated against common-law couples.

1986 Supreme Court of the United States of America - Bowers v. Hardwick: criminal offence to engage in homosexual activities

Charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the privacy of his home, respondent Hardwick brought suit in Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. The court granted the defendants' motion to dismiss for failure to state a claim. The Court of Appeals reversed and remanded, holding that the Georgia statute violated respondent's fundamental rights.