On March 14th, 2022, the Judicial Committee of the Privy Councill ruled that the 2018 Domestic Patnership Act, a law which banned same-sex marriage, was constitutional. The decision was a significant setback for activists after years of progress and regression in the fight for marriage equality. In 2016, the Bermudan government issued a non-binding referendum asking two questions of the Bermudan people: (1) Whether they were in favor of same-sex marriage and (2) whether they were in favor of same-sex civil unions. 60%-70% of voters rejected both proposals.
However, in 2017 the Supreme Court of Bermuda considered a case on same-sex marriage. Winston Godwin and Greg DeRoche, a same-sex couple, sued after the government denied their application for a marriage license. The supreme court ruled that the couple had their rights violated under the Bermuda Human Rights Act as it constituted differential treatment based on sexual orientation. Furthermore, the court found that the ruling violated Bermuda's constitutional right to freedom of conscience. The ruling effectively legalized same-sex marriage in the British Overseas Territory.
Unfortunately, this improvement was only temporary as the 2017 general elections resulted in a new government. The Progressive Labor Party of Bermuda passed the Domestic Partnership Act in December of 2017 which replaced same-sex marriage with domestic partnerships. The law went into effect on June 1st, 2018, after the Governor of Bermuda gave it royal assent. Bermuda became the first territory to reverse marriage rights for same-sex couples through legislation.
In another change of pace, Roderick Ferguson challenged the law in the Bermudan supreme court in April of 2018. In June, the court overturned the section of the law that prevented same-sex couples from marrying. The appellate court upheld the supreme court's decision. The final decision landed at the Judicial Committee of the Privy Council, the highest court of appeals for British territories. Thus, a British court would make the final decision about the outcome of the Bermudan law. Unfortunately, the JCPC found that the Domestic Partnership Act was permitted under the Bermudan constitution. Therefore, the law was upheld, and same-sex couples were only legally allowed to partake in domestic partnerships.
The ruling reflects many of the global trends in the LGBTQ+ rights movement. It is often homophobia, rather than homosexuality, that is an import from the west. Former colonies such as Sudan, Mauritius, and parts of Somalia and Nigeria enforce the death penalty for homosexual acts. The penal codes for former colonies such as Egypt, Zimbabwe, Ghana, and Tanzania continue to use the British version of penal codes, including the criminalization of homosexual acts.
Activists have focused in recent years on changing the meaning of African identity. They argue that homosexuality is not "un-African," but rather, it is homophobia that is dangerous. This tactic has proven successful in Botswana and Trinidad. However, Of the 72 countries in 2019 where homosexuality was a crime, 38 were previously under British rule. As homophobia was espically persistent in Britain in the 19th century, their former colonies struggle with the lasting impacts more than other colonies.
While the problem of exported homophobia is apparent, the solution is not. According to experts, cultural relativism is essential when working with and persuading residents of former colonies. When Barack Obama visited Kenya in 2015, he criticized the county's poor record on LGBTQ+ issues. While the president was trying to pressure the Kenyan government to improve its policies, there was significant backlash from those who viewed the president's remarks as an example of the "gay agenda" seeping into the country.
The future of Bermuda remains unclear. The ruling of the Judicial Committee of the Privy Council countered the global trend of legalizing same-sex marriage. Interestingly, the same Bermudian political party, the PLP, which passed the domestic partnership act, has historically been the party that advocated for independence from Britain. However, their law was only rewarded legal standing by their former colonizer. While there have been growing calls for Bermundan independence, how this ruling will affect the long-term fight for LGBTQ+ rights in Bermuda remains unknown. In the short term, same-sex couples will not have the same legal rights as heterosexual couples. Activists and organizations such as OUTBermuda have asked the government to clarify the legal status of married people before the law was deemed unconstitutional.
The past four years have been very tumultuous for those advocating for the legalization of same-sex marriage in Bermuda. While there were victories, the final decision by the JCPC requires the Bermudan government to pass a law to protect same-sex marriage or change its constitution. These setbacks have not deterred Bermudan activists from achieving marriage equality. As Roderick Ferguson, the co-plaintiff in the lawsuit, said, "Our work as a society is not done until everyone's humanity is recognized both in law and in life."
Bibliography
Angerer, D. (2018). Bermuda Bends Back the Arc [Illustration].
https://slate.com/news-and-politics/2018/02/bermudas-abrupt-repeal-of-marriage-equality-proves-theres-nothing-inevitable-about-civil-rights.html
Buckle, L. (2021, November 1). African sexuality and the legacy of imported homophobia.
Stonewall. https://www.stonewall.org.uk/legacy-imported-homophobia
Farge, E. (2018a, November 23). Bermuda top court reverses government’s gay marriage
Ban. U.S.https://www.reuters.com bermuda-reverses-governments-gay-marriage-b
Farge, E. (2018b, December 14). Bermuda appeals to London high court to enforce gay
marriage ban. https://www.reuters.com-london-high-court-enforce-gay-marriage-ban
Getty Images. (2019). Bermuda to have first Pride march after legalizing gay marriage
[Photograph].https://thehill.com/blogs/blog-briefing-room/news/448520-bermuda-will-have-its-first-pride-march-after-legalizing-gay
Government of Bermuda. (2018). DOMESTIC PARTNERSHIP ACT 2018.
http://www.bermudalaws.bm/laws/annual/acts/domestic/partnership/202018.pdf
Kushner, J. (2019, June 18). The British Empire’s Homophobia Lives On in Former Colonies.
The Atlantic. https://www.theatlantic.com/international/archive/kenya-supreme-court
McWhirter, F. (2022, March 15). Banning same-sex marriage not unconstitutional – Privy
Council. The Royal Gazette https://www.royalgazette.com/same-sex-marriage
Platform. (2022). Progressive Labour Party. https://www.plp.bm/platform_2020
Schiavenza, M. (2015, July 27). Why Obama Pushed for Gay Rights in Kenya. The Atlantic.
https://www.theatlantic.com/why-obama-pushed-for-gay-rights-in-kenya/
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