LEGALISATION OF SAMESEX MARRIAGE: A GLOBAL PERSPECTIVE International Conference Proceedings

TABLE OF CONTENTS PREFACE ............................................................................................................................................................................. 7  UNDERSTANDING THE LGBT SUBCULTURE IN VIETNAM: TOWARD THEORY OF CULTURAL STUDIES M.A Nguyen Minh Tri................................................................................................................................................. 9  MARRIAGE OVERRULED? “CERTIFICATE OF NONIMPEDIMENT” AND IMPEDIMENT TO THE RIGHT TO SAMESEX MARRIAGE Ignatius Yordan Nugraha ....................................................................................................................................... 22  DOES THE POLISH CONSTITUTION DEFINE MARRIAGE ONLY AS A UNION BETWEEN A MAN AND A WOMAN, OR IS ANOTHER INTERPRETATION POSSIBLE? POLEMIC WITH THE PREVIOUS JURISPRUDENCE Anne Michalak ........................................................................................................................................................ 39  MARRIAGE APOSTATES: WHY HETEROSEXUALS SEEK SAMESEX REGISTERED PARTNERSHIPS Nausica Palazzo....................................................................................................................................................... 53  SAMESEX COHABITATION VIA THE COURT’S DECISION ON RESOLUTION OF CIVIL MATTERS A FIRST STEP ON THE PATH OF LEGALIZING SAMESEX MARRIAGE IN VIET NAM Nguyen Thi Xuan Mai, Tran Thien Trang, Ngo Thi Anh Van ..................................................................................... 115  THE STATUS OF MARRIAGE AS A SOURCE OF RECOGNITION Mary Anne Case ................................................................................................................................................... 139  CONTEMPORARY TAIWANESE SOCIETY LGBT RIGHTS AND THE ROAD TO MARRIAGE EQUALITY Doan Khoa ............................................................................................................................................................ 194  A LEGAL APPROACH ON THE RECOGNITION OF SAMESEX MARRIAGE IN TAIWAN Hoang Thao Anh ................................................................................................................................................... 208  THE FUNDAMENTAL RIGHT TO MARRY IN INDIA: VIEWING SAMESEX MARRIAGES THROUGH THE THE LENS OF CONSTITUTIONAL MORALITY Shruti Bedi ........................................................................................................................................................... 222  SAMESEX RELATIONSHIPS AND MARRIAGE IN INDIA: THE PATH FORWARD Saif Rasul Khan .................................................................................................................................................... 241  LGBT+ RIGHTS CLAIMING FOR MARRIAGE EQUALITY AND THE POSSIBILITIES OF TRANSFORMING INDIAN FAMILY LAW Akshat Agarwal, LL.M. Candidate ......................................................................................................................... 249  LEGALIZATION OF SAMESEX MARRIAGE IN CANADA: A SUCCESS STORY Sébastien Lafrance................................................................................................................................................ 279

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

International Conference Proceedings

LEGALISATION OF SAME-SEX MARRIAGE:

A GLOBAL PERSPECTIVE

International Conference Proceedings

Jointly organised by:

Asian Law Centre, Melbourne Law School

School of Law, Vietnam National University, Hanoi

The iSEE Institute, Vietnam

Hanoi, 7-8 December, 2021

NHÀ XUẤT BẢN KHOA HỌC XÃ HỘI

HANOI, 2022

Sarah Biddulph - Kathryn Taylor - Sébastien Lafrance

Nguyễn Thị Quế Anh - Vũ Công Giao - Lương Thế Huy

- Ngô Hoàng Ngọc Hiệp - Vũ Thành Cự

Selection Committee/ Hội đồng thẩm định

Kathryn Taylor - Vũ Công Giao - Đặng Thùy Dương

The conference and the publication of the proceedings were made by Vietnam National University School of Law, Institute for Studies of Society, Economy, and Environment (iSEE), and Asian Law Centre, Melbourne Law School, University of Melbourne, with financial support from United Nations Development Programme (UNDP) Vietnam and the Embassy of Canada to Vietnam.

Hội thảo và việc xuất bản kỷ yếu này được thực hiện bởi Khoa Luật, Đại học Quốc gia Hà Nội, Viện Nghiên cứu Xã hội, Kinh tế và Môi trường (iSEE) và Trung tâm Luật châu Á thuộc Trường Luật, Đại học Melbourne, với sự hỗ trợ tài chính từ Chương trình phát triển Liên hợp quốc (UNDP) và Đại sứ quán Canada tại Việt Nam.

TABLE OF CONTENTS

PREFACE 7

 UNDERSTANDING THE LGBT SUBCULTURE IN VIETNAM: TOWARD THEORY OF CULTURAL STUDIES

M.A Nguyen Minh Tri 9

 MARRIAGE OVERRULED? “CERTIFICATE OF NON-IMPEDIMENT”

AND IMPEDIMENT TO THE RIGHT TO SAME-SEX MARRIAGE

Ignatius Yordan Nugraha 22

 DOES THE POLISH CONSTITUTION DEFINE MARRIAGE ONLY AS A UNION BETWEEN A MAN AND A WOMAN,

OR IS ANOTHER INTERPRETATION POSSIBLE? POLEMIC WITH THE PREVIOUS JURISPRUDENCE

Anne Michalak 39

 MARRIAGE APOSTATES: WHY HETEROSEXUALS SEEK SAME-SEX REGISTERED PARTNERSHIPS

Nausica Palazzo 53

 SAME-SEX COHABITATION VIA THE COURT’S DECISION ON RESOLUTION OF CIVIL MATTERS

- A FIRST STEP ON THE PATH OF LEGALIZING SAME-SEX MARRIAGE IN VIET NAM

Nguyen Thi Xuan Mai, Tran Thien Trang, Ngo Thi Anh Van 115

 THE STATUS OF MARRIAGE AS A SOURCE OF RECOGNITION

Mary Anne Case 139

 CONTEMPORARY TAIWANESE SOCIETY LGBT RIGHTS AND THE ROAD TO MARRIAGE EQUALITY

Doan Khoa 194

 A LEGAL APPROACH ON THE RECOGNITION OF SAME-SEX MARRIAGE IN TAIWAN

Hoang Thao Anh 208

 THE FUNDAMENTAL RIGHT TO MARRY IN INDIA: VIEWING SAME-SEX MARRIAGES THROUGH THE THE LENS

OF CONSTITUTIONAL MORALITY

Shruti Bedi 222

 SAME-SEX RELATIONSHIPS AND MARRIAGE IN INDIA: THE PATH FORWARD

Saif Rasul Khan 241

 LGBT+ RIGHTS CLAIMING FOR MARRIAGE EQUALITY AND THE POSSIBILITIES

OF TRANSFORMING INDIAN FAMILY LAW

Akshat Agarwal, LL.M Candidate 249

 LEGALIZATION OF SAME-SEX MARRIAGE IN CANADA: A SUCCESS STORY

Sébastien Lafrance 279

 SAME-SEX MARRIAGE IN CHINA LAW

Pham Luong Khien 289

 MARRIAGE FOR INDONESIAN SAME-SEX COUPLES IN FRANCE

Dr Wisnu Adihartono 301

 SAME-SEX MARRIAGE FROM THE PERSPECTIVE OF TRADITION, MORALITY, AND LAW IN VIETNAM

Hoang Thi Thu Thuy 314

 FACTORS AFFECTING LEGALIZATION OF SAME-SEX MARRIAGE IN VIETNAM

LLM Tran Thi Quyen 320

 THE ENSURING CONDITIONS OF LGBT RIGHT TO ADOPT IN VIETNAM:

INADEQUACIES AND RECOMMENDATIONS

Assoc Prof Dr Nguyen Minh Tuan , Nguyen Thi Nhat Thao, Dang Thi Nhu Quynh,

Nguyen Thi Ngoc Anh, Nguyen Thi Tuoi, Nguyen Thi Huong 333

 SEARCHING FOR AN APPROPRIATE MODEL FOR THE LEGALIZATION OF SAME SEX COUPLES’ RELATIONSHIP FROM PUBLIC ATTITUDES IN VIETNAM - AN EMPIRICAL ASSESSMENT

Nguyen Thuy Duong, Le Hoang Dieu Anh, Ho Bao Chau 345

 MARRIAGES OF TRANSGENDER PEOPLE IN VIETNAM

Nguyen Quynh Trang 367

 TRANSGENDER PEOPLE’S RIGHT TO MARRY IN VIETNAM AND OTHER COUNTRIES – LEGAL RECOGNITION AND PRACTICAL PROBLEMS

Nguyen The Anh (Mr.) 379

 SURROGACY FOR SAME-SEX COUPLES - WHO ARE THE LEGAL PARENTS OF A SURROGATE CHILD?

Lai Thanh Long, Nguyen Thi Kim Cuc 393

 PROTECTING HUMAN RIGHTS TO ADOPTION OF LESBIAN, GAY, BISEXUAL, AND TRANSGENDER PEOPLE (LGBT) - PRACTICE IN SOME ASIAN COUNTRIES AND VIETNAM

Mac Thi Hoai Thuong 409

 THỪA NHẬN XÃ HỘI ĐẾN TỪ CÔNG NHẬN HÔN NHÂN: THỰC TRẠNG PHÁP LÝ

Mary Anne Case, Vũ Thành Cự dịch 422

 QUYỀN CĂN BẢN ĐƯỢC KẾT HÔN Ở ẤN ĐỘ: NHÌN NHẬN HÔN NHÂN CÙNG GIỚI QUA LĂNG KÍNH ĐẠO ĐỨC HIẾN PHÁP Shruti Bedi 477

 YÊU CẦU QUYỀN BÌNH ĐẲNG HÔN NHÂN CỦA NGƯỜI LGBT+ VÀ KHẢ NĂNG THAY ĐỔI LUẬT GIA ĐÌNH ẤN ĐỘ Akshat Agarwal, LL.M 498

 HỢP PHÁP HÓA HÔN NHÂN CÙNG GIỚI Ở CANADA: MỘT CÂU CHUYỆN THÀNH CÔNG

Sébastien Lafrance 531

As of 2021, marriage between people of the same sex has been legally performed

in 29 countries The Netherlands was the first country in the world to legalise sex marriage exactly 20 years ago, with the most recent being Costa Rica in 2020

No country has reversed a law allowing sex marriage, while support for sex marriage has also increased In 2019, Taiwan became the first government in Asia to welcome legalisation on same-sex marriage A Japanese court ruled that the government’s failure to allow same-sex marriages is violating Article 14 of the Constitution, which ensures the right to equality Other countries in Asia, including Thailand, have also been discussing the prospect of legalising same-sex marriage.However, fighting for equality in marriage is nowhere near completion Most parts of Asia, Africa, and Latin America still have laws banning same-sex marriage, with nearly 70 countries continuing to criminalise same-sex relations The world is polarised regarding LGBTIQ acceptance The rise of nationalism, anti-globalisation and undiscovered intersectional impacts of the pandemic on the marriage equality movement have meant that opposition remains strong in many countries

same-In that context, an online international conference titled “Legalisation of sex Marriage: A Global Perspective” will be co-hosted on 7-8 December 2021 by:

Same-• School of Law, Vietnam National University Hanoi

• Asian Law Centre, Melbourne Law School, The University of Melbourne

• The iSEE Institute, Vietnam

The objectives of this conference were to provide an open forum for experts from various countries to discuss theoretical and practical aspects of legalisation of same-sex marriage in the world Presentations and ideas discussed in the conference mentioned diversified themes, such as: Legalisation of same-sex marriage in countries; Effective legal frameworks for same-sex marriage; Social, economic and cultural impacts of same-sex marriage after legalisation; Civil unions, registered partnerships, domestic partnerships for same-sex couples; Adaption of non-binary, non-heteronormative legislation; Marriages of transgender people; Adaption of non-binary, non-heteronormative legislation; Joint adoption, single parent, same-sex

parenting, surrogacy; Transnational marriage involving same-sex unions; Raising public awareness and social acceptance of same-sex marriage; The role of NGOs and civil society in building community and advocating for marriage equality.

There are 22 papers included in this book of conference proceedings School of Law, Vietnam National University, Hanoi decides to publish the book to disseminate foreign and domestic scholars’ expert research on same-sex marriage and to share knowledge thereof in comparison and connection with other countries in the world

On this occasion, School of Law, Vietnam National University, Hanoi acknowledges the contribution of scholars attending the conference, the Asian Law Centre, Melbourne Law School, and the iSEE Institute, Vietnam – our co-organizers with valuable support We would like to thank the Selection Committee, the Editorial Board, our distinguished colleagues for their fruitful contribution: Dr Mai Van Thang, Dr Bui Tien Dat, Dr La Khanh Tung, Dr Ngo Minh Huong, Dr Nguyen Thuy Duong, as well as Mr Vu Thanh Cu and other volunteers for their effectively participating in the course of technically editing the proceeding book

Hanoi, March 2022

The School of Law, Vietnam National University, Hanoi

UNDERSTANDING THE LGBT SUBCULTURE IN VIETNAM:

TOWARD THEORY OF CULTURAL STUDIES

M.A Nguyen Minh Tri 1

Abstract: In Vietnam, the gay, lesbian, bisexual & transgender/transsexual group - abbreviated as LGBT - is a social minority

group that receives little attention However, in recent years, the LGBT community has been mentioned more and more in social media, becoming the subject of surveys in several research programs and intervention projects of NGOs However, for the government, the research community, and even the LGBT group in Vietnam, the LGBT community has not been recognized

as a cultural entity, or a part of Vietnam’s culture Are the issues of the LGBT community, in the opinion of cultural researchers

in Vietnam, too sensitive, or are cultural researchers rejecting the LGBT subculture as part of Vietnam’s diverse culture? In this article, we will repeat a few cultural definitions and analyses to confirm that the LGBT community is a distinct cultural entity that needs to be studied, and the LGBT subculture in Vietnam is part of Vietnamese culture Moreover, we will research and summarize the characteristics of the LGBT subculture in Vietnam from cultural studies

Keywords: LGBT subculture, cultural studies, Vietnam

RESEARCH BACKGROUND

Historically, the LGBT subculture has never been a cultural entity in Vietnam in the view of the government, the media, and even the LGBT community As a result, it has never been considered a part of the Vietnamese culture This has hindered the promotion and protection of human rights in Vietnam for the LGBT community Moreover, the LGBT community has never been recognized for their contribution to the culture and society of Vietnam To date, the research and understanding of the LGBT community from a cultural perspective is still relatively new, if not an unexplored area

Many research topics and research surveys have mentioned the LGBT community

in Vietnam For example, Transgender people in Vietnam - practical and legal issues

was published in 2012 in “Aspiration to be Yourself: Transgender People in Vietnam:

1 Nguyen Tat Thanh University, Ho Chi Minh City, Vietnam, Email: nmtri@ntt.edu.vn.

2 Quynh Phuong Pham, Quang Binh Le and Thanh Tu Mai, “Aspiration to Be Yourself: Transgender People in Vietnam: Realities and Legal Aspects” (World Publishing House 2012)

problems, such as stigma and discrimination in families, schools or public spaces,

difficulties with job opportunities, health risks and legal issues Another study, The

employment of transgender women - the reality and challenges from iSEE, focused on

transgender women This study mentioned the difficulties that transgender people face

in terms of employment “The work argues that the barriers to transgender women’s

In addition, numerous research, literary and artistic works have been published,

of health workers in providing medical services to men who have sex with men (MSM),

Another iSEE survey on A study of the socio-economic characteristics of MSM in

Vietnam presented the problems faced by men who have sex with men in Vietnam,

authentically brought audiences the emotions of LGBT people through literature, such

need to become a girl (Me oi! Con phai la con gai).5

In addition to the text documents, there are also unique image documents, such

of vivid pictures of the gay community and their lives The Pink Choice photo series

by photographer Maika Elan also captured some of the casual daily activities of

Center for Creative Initiatives in Health and Population (CCIHP) also depicted the MSM community, taking pictures to talk about their lives with worries and pressures, love and happiness

The studies mentioned earlier, as well as surveys, pictures and literary works

1 Phuong An, “Talk about Transgender Employment” E-magazine Quality and Life (Vietnam, 22 July

2014) gaid19016.html>

<https://chatluongvacuocsong.vn/viec-lam-cua-nguoi-chuyen-gioi-chi-di-hat-dam-ma-hoac-lam-2 iSEE, “Stigma and Discrimination from Medical Staff in Providing Medical Services to MSM (Case Study of Some FHI Referral Medical Facilities in Hanoi and Ho Chi Minh City)” (2011) <http://www thuvien.lgbt/nghiencuu>

3 Cuong Q Nguyen, “A Study of the Socio-Economic Characteristics of MSM in Viet Nam” (iSEE 2009)

5 Ngoc Thach Pham, Transgender (Labour Publishing House 2016)

4 Ngoc Thach Pham, Mom! I’m a Gay (Labour Publishing House 2016)

5 Just Everlyn, Mom! I Need to Become a Girl (Walter Trook Publishing 1998)

6 iSEE, Another Me (Transportation Publishing House 2013).

7 CCIHP, “Moments in Life” <https://ccihp.org/>.

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

only focused on researching and depicting a specific part of the LGBT peoples, such as transgender people or MSM The research also only presents basic scientific knowledge in biology, health, economy, society, etc Issues surrounding the LGBT peoples have not been researched from the point of view of cultural studies Are issues

of the LGBT group, in the opinion of cultural researchers in Vietnam, too sensitive?

Or is it because we do not yet consider this group of people a distinct cultural entity

or, in other words, a subculture within the whole culture of Vietnam? With the help

of previous research, I therefore want to confirm and clarify the essential, identifying characteristics of the LGBT subculture in Vietnam from a cultural perspective

Understanding LGBT

According to Queer Theory, people’s sexual identity is much more complicated than dividing gender into male and female.1 Such division of essence into two extremes represents a way of looking at it as the polaropposite of life’s inherent form Regarding sexual orientation, in work published in the late 1940s, Alfred Kinsey and colleagues showed that sexual orientation could be divided into seven categories, from entirely

many research documents from anthropology, culture, history, religion, politics, and

social activities show that gender pluralism is quite common in Southeast Asia

Who are LGBT people? Biologically speaking, LGBT people have the same body state as other human beings However, to identify LGBT people with others, we need

to understand what human sexuality is Human sexuality comprises four elements:

sexual biology, gender identity,3 sexual orientation4 and gender expression

Of the four factors, biological sex is the one that cannot be changed because

it is a biologically determined factor Biological sex is mainly associated with sex chromosomes, hormones, and internal and externalorgans Humans are usually born intotwo distinct biological sexes, female and male, defined by the external genitalia: clitoris/penis, testicles; and internal organs: ovaries/prostate However, there are exceptions Some people, who have indistinct or both sexual organs, are called intersex and are usually recommended to receive medical intervention to determine

1 Annamarie Jagose, Queer Theory: An Introduction (Melbourne University Press 1996)

2 Kinsey A.C, Pomeroy W.B and Martin C.E, “Sexual Behavior in the Human Male” (1949) 109 283 12

Michael G Peletz, Transgenderism and Gender Pluralism in Southeast Asia since Early Modern Times

(1st Edition, Routledge 2009) <https://doi.org/10.4324/9780203880043>

3 APA, “Answers to Your Question about Transgender People, Gender Identity, and Gender Expression”

(American Psychological Association, 2012) <https://www.apa.org/topics/lgbtq/transgender.pdf>

4 APA, “Sexual Orientation & Homosexuality” (American Psychological Association, 2008) <https://

www.apa.org/topics/lgbtq/orientation>

their biological sex Although it is a natural factor that can be interfered with by medicine, biological sex combined with other factors will more accurately determine human sexuality

Sexual orientation is another of the four factors that make up sexuality and is

defined as a sustained emotional and/or sexual attraction to others From there, we can distinguish three basic types of sexual orientation: heterosexual - people who are attracted to the opposite sex; homosexual - someone who is attracted to people of the same sex; bisexual - someone who is attracted to both sexes Unlike sexual behavior, sexual orientation includes personal feelings Therefore, a person’s sexual behavior may not reflect their sexual orientation

Gender identity is the third factor in sexuality, expressed through the perception

of one’s gender as male or female Gender identity does not necessarily coincide with biological sex Gender identity is also independent of sexual orientation, as gender identity has to do with who a person thinks they are In contrast, sexual orientation has

to do with to whom is a person attracted

Gender expression is how a person unconsciously/consciously shows their

gender identity through their behavior, clothing, hairstyle, voice, or physical features However, in today’s society, gender expression goes beyond gender identity It gradually becomes a determining factor by personal preferences and trends of the times Hence, gender expression is not the decisive factor that defines who you are and what your sexuality is

The population of LGBT people in Vietnam

There is some difficulty in researching LGBT people because the specific LGBT population in Vietnam is unknown Vietnam has not conducted a nationwide survey on the number, distribution, and characteristics of LGBT people Therefore, it isn’t easy

to approach and research this group of people as a whole, instead, it is only possible through representatives For example, in Vietnam, a report published at the Scientific and Technical Conference held by the Ho Chi Minh City Dermatology Hospital on September 26, 2006, said there was no firm data on the number of gay men couples However, if we take the average rate that many scientists have agreed on, that of

2,900,000 people (according to the population of Vietnam in 2020, which was more

1 Dinh Luyen, “Scientific Report of the World Health Organization (WHO)” (Vietnam Law Online Newspaper,

11 May 2013) <http://baophapluat.vn/toi-18/nguoi-dong-tinh-ngong-tin-quoc-hoi-168740.html>

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

than 97.5 million people)1

Transgender people may not have had surgery, but if they understand their gender identity differently from their sexual biology, they are transgender people Of course, they also have a tendency or wish to be transexual However, this may not become

Transgender people are classified into two groups: male to female (also known as Trans Girl or Trans Women, or Male To Female - MTF) and female to male (also known as Trans Guy, or Female To Male - FTM) The population of LGBT people is

a minority amongst Vietnamese people However, whether the population is large or small, the LGBT subculture must be understood and recognized

CULTURE DEFINITION

To begin identifing the LGBT subculture, we should look at some perspectives

on the definition of culture However, we should also point out that the definition of culture has changed over time

There are two types of definitions - descriptive definitions and featured definitions The illustrative description lists the elements of culture For example, according to E.B Tylor (1871), culture consists of knowledge, belief, art, morals, law, custom, and

In the featured definition, there are three major trends: The first tendency is

to see culture as specific outcomes (products) It can be values, traditions, ways of life, standards, ideas, social institutions, symbols, signs, information created by a community, designed surplus, and accumulation The second tendency sees culture as a process It can be creative activities, technologies, processes, ways of existence, living and development, adapting to the environment, and human behavior Finally, the third trend considers culture as relationships, structures between values, between people and their fellow human beings and species All these different definitional tendencies have their logical nucleus The difference between them is mainly because the authors have emphasized one aspect or another of the concept However, regardless of the

trend, all definitions of culture contain an ordinary meaning of people, recognizing

1 GSO, “Population, Labor and Employment in 2020” (General Statistics Office of Vietnam, 1 September

2021) viec-lam-nam2020/>

<https://www.gso.gov.vn/du-lieu-va-so-lieu-thong-ke/2021/01/infographic-dan-so-lao-dong-va-2 Quynh Phuong Pham, Gay, Bisexual and Transgender People in Vietnam – A Review of Studies (Social

Science Publishing House 2013)

3 Tylor E.B., Primitive Culture, vol 2 (Cambridge University Press 2012).

and affirming the close relationship between culture and people

Tran Ngoc Them also affirmed that culture and humans are two concepts that are

not separate.1 Culture has existed since people appeared Humans are the creators of culture Throughout its formation and development, people have always been incessantly creative to create cultural values One of the cultural values created by people is people themselves - people with culture Humans create culture, and at the same time, people are also products of culture As a product of culture, man is a typical cultural carrier Material cultural values may be lost, but as long as people remain, culture will continue

to exist and develop From this point of view, looking back at the biological identity of LGBT people, it is clear that they are also complete human beings, a part of society Applying a simple inference, the LGBT group also has its own culture

For a long time, culture in Vietnam was understood in a very narrow sense: the level

of civilization was rated from 1 to 12 on administrative documents However, stopping

at this interpretation leads to a misunderstanding and forms the concept of people with and without cultures Cultured people (ie people with culture) are often identified as educated people This incorrect understanding amongst Vietnamese people gradually creates barriers and prejudices against people in the LGBT community For example,

if LGBT people, especially transgender people, cannot afford to go to school, they will

be considered uncultured or countercultural Moreover, culture is always associated with a set of historical values inherited from generation to generation,2 limiting other small subcultures that may be born later Subcultures that are not in the same frame

of reference, or that have not been known historically, may quickly lead to cultural frictions as they may be considered contrary to the central culture

Anthropologists have developed many theories to analyze and explain ethnicity

In the Euro-American anthropological tradition, cultural anthropologists in North America and social anthropologists in the United Kingdom have developed significant theories that explain culture and society, including ethnic themes Prominent among

them are two opposing theoretical views First, the academic view of cultural evolution3holds that human culture in general and the culture of specific ethnic groups,

in particular, have developed from low to high along a single path Since then, anthropologists studying specific ethnic groups have often placed this ethnic culture

1 Ngoc Them Tran, Treatise on Culture: Social Science & Humanities Issues – Cultural Studies (Ho Chi

Minh City National University Publishing House 2013)

2 Ngoc Them Tran, Vietnamese Cultural Establishment (2nd Edition, Education Publishing House 1999)

3 “What Is Cultural Evolution” (Cultural Evolution Society, 2018) <https://culturalevolutionsociety.org/

story/What_is_Cultural_Evolution>.

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

somewhere in the evolutionary framework from barbarian to barbarian or civilized For example, Morgan labels seven different stages of human culture: lower, middle,

anthropologists in the late 19th century and early 20th century usually came from the West, they used the values and cultural standards of their ethnic group to reflect and analyze their subject’s research As a result, it leads them to fall into ethnocentrism in exploring the cultures of other ethnic groups, creating an unscientific perception that some ethnic groups are superior to others is different

The anthropologist Franz Boas, on the other hand, developed the theoretical view

of cultural relativism, arguing that there is no high culture or low culture, to reject the cultural theory of evolution Instead, each culture is formed from its geographical and historical context Cultural relativism is the ability to understand a culture on its own terms and not to make judgments using the standards of one’s own culture This goal is

to understand cultural practices that are not typically part of one’s own culture Using the perspective of cultural relativism leads to the view that no culture is superior to another culture when respective systems of morality, law, politics, etc are compared.2This concept argues that cultural norms and values derive their meaning within

a specific social context This is also based on the idea that there is no absolute standard of good or evil Therefore every decision and judgment of right and wrong is individually decided in each society Cultural relativism also means that any opinion

on ethics is subject to each person’s perspective within their particular culture Overall, there is no right or wrong ethical system A holistic understanding of the term cultural relativism tries to promote the knowledge of cultural practices that are unfamiliar to other cultures, such as eating insects, genocides, or genital mutilation.

Every society has its own unique cultures in which people will have different ideas of moral codes The diversity of these cultures cannot be said to be correct or incorrect Every society has independent standards of ethics within its community, and these standards are culture-bound Cultural Relativism has a perception in which the rightness or wrongness

of an action depends entirely within the bounds of the culture

CHARACTERISTICS OF THE LGBT SUBCULTURE IN VIETNAM

The LGBT community has been a member of society for a long time in Vietnam However, in Vietnamese culture, there is limited recognition or reference to the presence of LGBT people Therefore, in the process of research and observation, we

1 Morgan Lewis H., Ancient Society (Harvard University Press 2013)

2 Philosophy Home, “Cultural Relativism: Truth Is Relative” (Philosophy Home, 2009) <http://www.

culturalrelativism.com/>

see that cultural events and phenomena are sometimes minor, inconsistent, or not universal for a group of LGBT people In fact, those cultural events and phenomena bring the representativeness and specificity of the LGBT subculture

VietPride - The series of events

In June 1969, patrons and supporters of the Stonewall Inn in New York City staged

an uprising to resist police harassment and persecution that LGBT Americans were commonly subjected to This uprising marks the beginning of a movement to overturn discriminatory laws and practices against LGBT Americans Today, celebrations include pride parades, picnics, parties, workshops, symposia, concerts, and LGBT Pride Month events attract millions of participants worldwide In addition, memorials are held during this month for members of the community who have been lost to hate crimes or HIV/AIDS The purpose of the commemorative month is to recognize

Accordingly, with its humanistic meaning, PRIDE has become a wave, constantly spreading to every country From a global activity, LGBT people in Vietnam, in general, have turned it into a unique and meaningful one of their own The Viet Pride series of events - the most significant of the year for the LGBT community in Vietnam

- has celebrated sexual diversity, brought pride and cheer to the community, spread the values of love, and the courage to live true to yourself The Viet Pride series is also an intercultural exchange between the significant global LGBT culture and the Vietnamese LGBT subculture

Initially, the Pride project implemented in Vietnam was initiated by a small group of LGBT friends in the capital, Hanoi in 2011 It then spread to many people

in different provinces across the country Ten regions participated in Viet Pride in the first year, and now more than 30 provinces and cities have participated In 2017, the series of Viet Pride activities from North to South, took place from July 2017 to the beginning of October 2017 It has once again affirmed the irreplaceable role of Viet Pride for the LGBT community across the country As a result, society is also gradually transforming, smashing stereotypes about gay, transgender, and bisexual

Strive with pride in 2013;3 Blossom your life in 2014; Spread my wings in 2015; Be

1 Youth.gov, “June Is LGBT Pride Month” (youth.gov) <https://youth.gov/feature-article/june-lgbt-pridemonth>

2 An Nguyen, “Viet Pride - Connecting Thousands of Hearts” (Motthegioi.vn, 15 September 2017)

<http://motthegioi.vn/lgbt-c-131/viet-pride-noi-ket-noi-hang-van-trai-tim-71585.html>.<https:// hanoigrapevine.com/2013/07/viet-pride-2013-strive-with-pride/>

3 Goethe-Institut Hanoi, “Vietpride 2013 - Strive with Pride” (Hanoi Grapevine, 23 July 201AD)

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

yourself free to love in 2016; Seeds of equality in 2017; It’s our pride in 2018; Out and proud in 2019; Light up the Pride in 2020; No matter what in 2021.1

Accordingly, manystraight people, parents, and friends of LGBT people held hands and joined the Viet Pride parade to support the LGBT community The journey

of the past ten years has brought Viet Pride beyond its initial limitations, bringing about positive changes for the whole society, with a correct and positive view of gay, transgender, and bisexual people People have come closer together, and Viet Pride

has gradually become similar to the Tet holiday for LGBT people in Vietnam

Lo to Show

Besides the Viet Pride cultural event, another activity can be considered a part

of life for LGBT people An activity mainly by transgender women, the Lo to Show (similar to a bingo game) has gradually become a feature that everyone associates about LGBT people Lo to Show is a form of entertainment very familiar to the people of the South in Vietnam The bustling atmosphere in the theater troupes in the southwestern towns, with traditional games, funny bingo papers, and colorfully dressed girls, has become a typical memory - the feeling of holding the purchased tickets and anxiously waiting for the girls to dial the numbers Familiar songs that are “mixed” make it interesting to find the numbers Whoever has five numbers appearing on the same

row will be “Kinh”, which means bingo Gifts are nothing big, just packets of instant

noodles, a few bags of MSG, but it’s still fun 2 In addition, the Lo To Troupe, a group

of LGBT people in provinces or cities, moves from one location to another They set

up fairs with game booths and stages in empty spaces; they sing, dance, circus, and

do magic tricksat night to earn money If the audiences do not play bingo or watch

the show, the LGBT people will continue to move In 2014, Nguyen Thi Tham’s feature-length documentary on this topic - Chuyen di cuoi cung cua chi Phung (The

Last Trip of Sister Phung) - was warmly received by domestic and foreign audiences with haunting emotions The Last Trip of Sister Phung is actual footage recorded by director Tham who followed the Phung for many years Although it is a documentary,

it attracted a lot of attention A large audience of people bought tickets because it showed a different perspective of people who use entertainment as their livelihood Director Huynh Tuan Anh then decided to make a movie Loto, inspired by this story

Drag Queen

1 ICS, “VietPride” (ICS Center) <http://ics.org.vn/viet-pride>.

2 Phuc Du, “Lo to Show: Both Tragic and Floating” (Newspaper young intellectuals, 30 March 2017)

<http://ttvn.toquoc.vn/>

Drag1 is the reception of an international artistic activity associated with the

England to refer to male actors playing female roles, stemming from various theatrical causes, including a shortage of female workers Today, the term is generally used for artists who dress up as women, not necessarily stage actors, singers, dancers, television actors, comedians, or contestants of beauty contests Lip-sync artists are also an iconic art activity of the “Drag-queen” world

Countries in Asia, especially Thailand, influenced drag queens in Vietnam Initially, the drags experimented with styles from Europe and America but they gradually formed their own style, returning to the original inspiration of the Asian Drag Queen Lip-syncing performances, gorgeous costumes, and thick makeup are the characteristics of Drag Queens However, Vietnamese Drags often do not update their trends Instead, they only reference musical performances like Whitney Houston and Celine Dion

In Thailand, Drag Queen shows can be performed outside the stage However, people can only go outside to watch the show In Vietnam, many performances occur during the night Although society has opened up to the LGBTQ+ community in recent years, they are still not fully accepted Therefore, the Drag Queen community needs a place where they can be more open to society but not be afraid of being abused or unsafe

Being subjected to disgusting glances, jokes, or even violent fights are typical for gay and transgender people, especially when they show signs of being “deviant” When faced with such a situation, people often have two choices: Hide or live with it This is one of the reasons that the “drag queen” movement was born These people did not try

to affirm their masculinity, but calmly turned their faces and covered themselves with lipstick and silk They live and work as true artists with the affirmation: “Feminine does not mean weak and only men who are strong enough dare to show it” “Drag queen” is considered a highlight of the colorful nightlife of the LGBT community Not only are the men dressed in fancy clothes and lip-syncing the masterpieces of the Divas, but they are also true artists who work hard every night for the audience Making money from art activities is the biggest challenge of the Drag Queen community However, as mentioned, perceptions are still skewed towards the

1 David A Gerstner, Routledge International Encyclopedia of Queer Culture (Routledge 2006)

2 Felix Rodriguez Gonzales, The Feminine Stereotype in Gay Characterization: A Look at English and Spanish (In María de Los Ángeles Gómez González; J Lachlan Mackenzie; Elsa M González Álvarez)

(John Benjamins Publishing Company 2008)

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

performance activities of the LGBT community Continuously performing late at night also adversely affects the artists’ health

CONCLUSION

If talking about a culture in general, or a subculture in particular, there are many things to mention, such as customs and habits, costume culture, food culture or specific religious beliefs, etc However, these aspects are often associated with the culture of the entire ethnic group With the LGBT group having a specificity related to sexual orientation, as I shared above, their subculture identification is also somewhat different However, there are also identifiable aspects, such as festivals, cultural events, cultural activities, livelihood methods, etc., and other identifiable factors such

as sexual culture and family culture, cultural behavior, etc., of LGBT people

However, within the framework of this essay, I would like to present the typical identifying factors of the LGBT group to show that this group of people is also eligible

to be considered a subculture, and needs to considered as a subculture When we identify LGBT people who have their own culture, who also have their own identity, they may be taken out of the counterculture group This is the reason that leads to LGBT people being scorned, stigmatized, and overlooked in society Up to now, the Vietnamese people only take an interest in the issues of LGBT people, such as health issues, social issues associated with social evils, social diseases, etc., generally only the problems, not the positives Agencies and organizations mainly support LGBT people in human rights, law, media, health, etc If we stop there, we can only solve the cultural reality of LGBT people; we are not changing the mindset of Vietnamese people When the LGBT group is considered a cultural entity, they will be considered

as a community with distinct cultural characteristics, with its own cultural identity They will see the large, colorful culture that they can contribute to society Identifying the LGBT subculture will therefore create a premise not only for the study of LGBT groups from a cultural perspective, but also for promoting the rights and presence of LGBT people in Vietnamese society

REFERENCES

1 A.C K, W.B P and C.E M, “Sexual Behavior in the Human Male” (1949) 109-283

2 An Nguyen, “Viet Pride - Connecting Thousands of Hearts” (Motthegioi.vn, 15

September 2017) van-trai-tim-71585.html>

<http://motthegioi.vn/lgbt-c-131/viet-pride-noi-ket-noi-hang-3 APA, “Sexual Orientation & Homosexuality” (American Psychological Association,

2008) <https://www.apa.org/topics/lgbtq/orientation>

4 ——, “Answers to Your Question about Transgender People, Gender Identity,

and Gender Expression” (American Psychological Association, 2012) <https://www.

apa.org/topics/lgbtq/transgender.pdf>

5 CCIHP, “Moments in Life” <https://ccihp.org/>

6 Dinh Luyen, “Scientific Report of the World Health Organization (WHO)”

(Vietnam Law Online Newspaper, 11 May 2013) <http://baophapluat.vn/toi-18/

nguoi-dong-tinh-ngong-tinquoc-hoi-168740.html>

7 E.B T, Primitive Culture, vol 2 (Cambridge University Press 2012)

8 Everlyn J, Mom! I Need to Become a Girl (Walter Trook Publishing 1998)

9 G Peletz M, Transgenderism and Gender Pluralism in Southeast Asia

since Early Modern Times (1st Edition, Routledge 2009) <https://doi.

org/10.4324/9780203880043>

10 Gerstner DA, Routledge International Encyclopedia of Queer Culture (Routledge

2006)

11 Goethe-Institut Hanoi, “Vietpride 2013 - Strive with Pride” (Hanoi Grapevine,

23 July 201AD) with-pride/>

<https://hanoigrapevine.com/2013/07/viet-pride-2013-strive-12 GSO, “Population, Labor and Employment in 2020” (General Statistics Office of

Vietnam, 1 September 2021)

<https://www.gso.gov.vn/du-lieu-va-so-lieu-thong-ke/2021/01/infographicdan-so-lao-dong-va-viec-lam-nam-2020/>

13 ICS, “VietPride” (ICS Center) http://ics.org.vn/viet-pride

14 iSEE, “Stigma and Discrimination from Medical Staff in Providing Medical Services to MSM (Case Study of Some FHI Referral Medical Facilities in Hanoi and Ho Chi Minh City)” (2011) <http://www.thuvien.lgbt/nghiencuu>

15 ——, Another Me (Transportation Publishing House 2013)

16 Jagose A, Queer Theory: An Introduction (Melbourne University Press 1996)

17 Lewis H M, Ancient Society (Harvard University Press 2013)

18 Nguyen CQ, “A Study of the Socio-Economic Characteristics of MSM in Viet Nam” (iSEE 2009)

19 Pham NT, Mom! I’m a Gay (Labour Publishing House 2016)

20 ——, Transgender (Labour Publishing House 2016)

21 Pham QP, Gay, Bisexual and Transgender People in Vietnam - A Review of Studies

(Social Science Publishing House 2013)

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

22 Pham QP, Le QB and Mai TT, “Aspiration to Be Yourself: Transgender People in Vietnam: Realities and Legal Aspects” (World Publishing House 2012)

23 Philosophy Home, “Cultural Relativism: Truth Is Relative” (Philosophy Home,

2009) <http://www.cultural-relativism.com/>

24 Phuc Du, “Lo to Show: Both Tragic and Floating” (Newspaper young intellectuals,

30 March 2017) <http://ttvn.toquoc.vn/>

25 Phuong An, “Talk about Transgender Employment” E-magazine Quality and Life

(Vietnam, 22 July 2014) chuyen-gioi-chi-di-hat-damma-hoac-lam-gai-d19016.html>

<https://chatluongvacuocsong.vn/viec-lam-cua-nguoi-26 Rodriguez Gonzales F, The Feminine Stereotype in Gay Characterization: A Look

at English and Spanish (In María de Los Ángeles Gómez González; J Lachlan Mackenzie; Elsa M González Álvarez) (John Benjamins Publishing Company 2008)

27 Tran NT, Vietnamese Cultural Establishment (2nd Edition, Education Publishing

House 1999)

28 ——, Treatise on Culture: Social Science & Humanities Issues – Cultural Studies

(Ho Chi Minh City National University Publishing House 2013)

29 ——, “What Is Cultural Evolution” (Cultural Evolution Society, 2018), <https:

//culturalevolutionsociety.org/story/What_is_Cultural_Evolution>

30 Youth.gov, “June Is LGBT Pride Month” (youth.gov)

<https://youth.gov/feature-article/junelgbt-pride-month>

AND IMPEDIMENT TO THE RIGHT TO SAME-SEX MARRIAGE

Ignatius Yordan Nugraha

The purpose of this article is to analyse the requirement to provide a certificate of non-impediment from the perspective of international human rights law This obligation is often imposed on LGBT non-nationals who wish to marry in a legalised same-sex marriage Authorities in countries without same-sex marriage have refused to issue this certificate because national law only recognises marriage between a man and a woman At the same time, excessive bureaucratism in the country that requires the certificate means that LGBT non-nationals cannot enter into a same-sex marriage In this article, I will argue that both countries have violated the right to marry, the right to private and family life and the right to non-discrimination I will specifically analyse in abstracto the compatibility of the certificate of non-impediment with the International Covenant on Civil and Political Rights and the European Convention on Human Rights

“certificate of marital status” or “certificate of legal capacity to marry’ This document

is usually defined as a letter declaring that there is no impediment to marriage for the person concerned under the law of the issuing state This letter is particularly required

to prove that one is still unmarried, and thus it can be considered an instrument to prevent bigamy

As an illustration, imagine a homosexual man from Indonesia who has settled in Germany He wants to marry another man from Poland who is working in Heidelberg, Germany, thanks to the freedom of movement within the European Union In order

to marry in Germany, the Indonesian national would have to prepare many different

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

documents Most pertinent for the purpose of this paper is an Ehefähigkeitszeugnis

(literally means “certificate of marriage capacity’) issued by the competent authority

in Indonesia The legal basis of this requirement is laid down under Section 1309 (1)

of the German Civil Code:

A person who, with regard to the requirements for entering into a marriage, is subject to foreign law (…), should not enter into marriage before he has furnished a certificate of the domestic authority of his home state that there does not impede the marriage under the law of that state A certificate of the domestic authority includes

a written confirmation issued by another office under a treaty entered into with the home state of the person affected The certificate becomes ineffective if the marriage

is not entered into within six months after it is issued; if the certificate states a shorter validity period, the latter is conclusive.1

Because of the bureaucratic quagmire in Indonesia, it is usually not obvious for many applicants to which authority they should turn In the past, they would have

to obtain the certificate from the Office of Religious Affairs (if they are officially registered as a Muslim) or the Civil Registry Office (if they are not a Muslim) However, new regulations seem to indicate that they have to apply to the city or regency administration However, for the Indonesian national, it is practically impossible to obtain this document While usually not mentioned on the official website of city or

copy of the identity of the spouse, together with their picture This requirement is even explicitly mentioned on the website of the Consulate General of the Republic of Indonesia in Frankfurt.3

Why would the requirement to show the spouse’s identity act as a hurdle to the right to marry? Indonesia only recognizes marriage between a man and a woman as

2 of the same law stipulates that “a marriage is valid if it has been performed in

1 § 1309 Abs 1 BGB <www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p4771> accessed

23 November 2021

2 See, for instance, “Persyaratan Surat Keterangan Belum Menikah” (Disdukcapil Kabupaten Sleman)

keterangan-belummenikah > accessed 23 November 2021; “Surat Keterangan Belum Menikah”

<web.archive.org/web/20180201100841/https://dukcapil.slemankab.go.id/persyaratan-surat-(Disdukcapil Kota Pontianak)

<online.disdukcapil.pontianakkota.go.id/pendaftaran/surat-keterangan-belum-menikah> accessed 23 November 2021

3 “Surat Keterangan” (Konsulat Jenderal Republik Indonesia Frankfurt) < www.indonesia-frankfurt.de/

layanankonsuler/surat-keterangan/> accessed 23 November 2021

4 Article 1 of Law No 1 of 1974 on Marriage

accordance with the laws of the respective religious beliefs of the parties concerned.”1Once the authorities realise that the Indonesian national was seeking to contract same-sex marriage abroad, they would most likely reject the request to obtain a certificate

of non-impediment Under Indonesian law, marriage is only valid between a man and a woman As commonly believed by many Indonesians, the authority could also

marriage would not be in line with Article 2 of Law No 1 of 1974

Meanwhile, the hypothetical Polish spouse is also facing an insurmountable headwind

This difficulty is illustrated in the case of Szypuła and Others v Poland, which is yet to be

decided by the European Court of Human Rights (ECtHR) when this paper was written In that case, the Warsaw Civil Status Office refused to issue a certificate of non-impediment because the issuance of this certificate was deemed to be contrary to Polish law, which

However, the issue of the certificate of non-impediment has not yet gained the attention of existing human rights scholarship This is despite the potential of this document to negate the effective exercise of the right to marry LGBT non-nationals in

a country that has legalised same-sex marriage Against this backdrop, the purpose of

this paper is to analyse the abstract certificate of non-impediment from the perspective

of international human rights law For the analysis, I focus on two major human rights instruments, namely the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) The former is selected given

its global scope, whereas the latter is included since the communication of Szypuła

and Others v Poland has led to the publication of some legal analyses, which could

enrich the research on the compatibility of the certificate of non-impediment with

1 ibid See also Letezia Tobing, “Hukum Perkawinan Sesama Jenis di Indonesia” (Hukumonline, 19

December 2012) sesama-jenis> accessed 23 November 2021

<www.hukumonline.com/klinik/detail/ulasan/lt50c9f71e463aa/hukum-perkawinan-2 See, for instance, Ali Mansur, “ICMI: Kalau LGBT Itu HAM, Mengapa Semua Agama Melarangnya?”

(Republika, 22 January 2018)

<www.republika.co.id/berita/p2xlek330/icmi-kalau-lgbt-itu-ham-mengapa-semuaagama-melarangnya> accessed 23 November 2021; Yose Rizal, “MUI : LGBT Tidak

Dibenarkan Semua Agama” (Antaranews, 9 May 2018) <https://www.antaranews.com/berita/708465/

mui-lgbt-tidak-dibenarkan-semuaagama> accessed 23 November 2021

3 Tomasz Szypuła v Poland, Jakub Urbanik and Jose Luis Alonso Rodriguez v Poland App nos 78030/14

and 23669/16 (ECtHR, 20 June 2020)

4 See, for instance, Claire Poppelwell-Scevak and Sarah Den Haese, “The Challenges of Saying “I Do” for SameSex Couples: The Human Rights Centre Submits a Third Party Intervention in Transnational Same-

Sex Marriage Case” (Strasbourg Observers, 20 November 2020) <strasbourgobservers.com/2020/11/20/

intervention-in-transnationalsame-sex-marriage-case/> accessed 23 November 2021

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

the requirement of certificate of non-impediment for foreigners, as well as states that prevent their nationals from contracting same-sex marriage abroad by refusing the issuance of such a certificate

In this paper, I will first argue that the refusal to issue a certificate of impediment constitutes a violation of the right to private life, the right to marry and the right to non-discrimination, as the refusal is grounded solely on sexual orientation Second, I will extend the analysis to states that have imposed a requirement to furnish

a certificate of impediment Finally, I will conclude that the certificate of impediment is discriminatory, as it creates an insuperable bureaucratic hurdle for LGBT non-nationals While states may invoke the ground of protection of public orders, the formalistic imposition of the requirement does not satisfy the proportionality test

non-REFUSAL TO ISSUE CERTIFICATE OF NON-IMPEDIMENT AS A HUMAN RIGHTS VIOLATION

In the communicated case of Szypuła and Others v Poland, the Warsaw Civil

Status Office refused to issue a certificate of non-impediment to the applicants, who intended to marry in Spain, under the grounds that the issuance would be contrary

Poland, same-sex marriage is explicitly prohibited under Article 18 of the Polish Constitution, which enshrines that “Marriage, being a union of a man and a woman,

as well as the family, motherhood and parenthood, shall be placed under the

name and the gender of the future spouse to obtain the certificate, and consequently, the Polish authorities became aware of the applicants’ intention to contract same-

As the Polish courts dismissed the applicants’ appeals, the case was brought to the ECtHR At the time this paper was written, the case was yet to be decided by the Court Nevertheless, the applicants have raised pertinent arguments concerning the compatibility of the refusal to issue a certificate of non-impediment with the ECHR The applicants specifically argued that their right to private and family life under Article 8 of the ECHR had been violated, since the refusal has effectively prevented them from marrying in Spain Furthermore, the applicants also invoked Article 12 on the right to marry, as they were effectively barred from marrying in Spain because

of the decision of the Polish authorities Finally, they also added that the refusal

1 Szypuła and Others v Poland (n 8)

2 Poland’s Constitution of 1997, art 18 <www.constituteproject.org/constitution/Poland_1997.pdf> accessed 23 November 2021

3 Szypuła and Others v Poland (n 8)

constitutes discrimination on the basis of sexual orientation, and thus they contended that there is a breach of Article 14 on the accessory right to non-discrimination in conjunction with Article 8.1

In this Section, I shall demonstrate that the applicants’ arguments have grounds under international human rights law In other words, I will argue that refusal to issue

a certificate of non-impediment on the grounds of sexual orientation violates the right

to marry, the right to private and family life, and the right to non-discrimination I will base my arguments not only on the jurisprudence of the ECtHR, but also on the authoritative interpretation of the Human Rights Committee (HRC) as the treaty body

of the ICCPR At the same time, there are also important differences between the jurisprudence of the ECtHR and the HRC, as the latter still has not recognised that the right to marry is applicable to same-sex couples Nevertheless, I will still conclude that there is a violation, given the existence of the right to privacy and the right to non-discrimination

Right to Marry

Under the jurisprudence of the HRC, there is no legal obligation to legalise

same-sex marriage The HRC in Joslin v New Zealand observed that Article 23(2)

of the ICCPR on the right to marry specifically mentions “men and women” instead

of “everyone” Thus, the HRC concluded that the objective of the provision was “to recognize as marriage only the union between a man and a woman wishing to marry

opposite-sex couples As a result, same-sex couples who intend to marry abroad cannot enjoy the protection of this article.3

Similarly, the ECtHR in Schalk and Kopf v Austria found that the use of the term

held that “marriage has deep-rooted social and cultural connotations which may differ largely from one society to another”, and that it “must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess

1 ibid

2 Juliet Joslin, Jennifer Rowan, Margaret Pearl and Lindsay Zelf v New Zealand (2002) UN Doc CCPR/

C/75/D/902/1999, para 8.2

3 At the same time, it should be born in mind that Joslin was decided in 2002; as observed by Manfred

Nowak, “Article 23(2) (…) does not necessarily rule out a broader interpretation in the future, taking

into account the rapidly changing views in many societies in this respect.” See Manfred Nowak U.N Covenant on Civil and Political Rights: CCPR commentary (NP Engel 2005) 526-27

4 Schalk and Kopf v Austria App no 30141/04 (ECtHR, 24 June 2010) para 54-55

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

appreciation in deciding whether to legalise same-sex marriage.2

There is, however, an important difference between the jurisprudence of the HRC and

the ECtHR In the case of Schalk and Kopf v Austria (decided in 2010), the Court explicitly

ruled that Article 12 of the ECHR can no longer be regarded as being exclusively applicable

to heterosexual couples, since the institution of marriage has undergone “major social changes” in recent years.3 For the Court, this change was demonstrated by the deliberate omission of the term “men and women” in Article 9 of the Charter of Fundamental Rights

of the European Union.4 The Court’s red line was only that Article 12 cannot be construed

to establish an obligation on Contracting States to grant access to marriage to same-sex couples.5 In this light, Article 12 of the ECHR would be applicable for homosexual couples who wish to marry in another state that has legalised same-sex marriage

In response to this assertion, states such as Poland may point to the fine print

of Article 12, which indicates that the right to marry is subject to national laws of

non-impediment is based on a national law, which restricts the right of opposite-sex couples to marry Moreover, they could assert that the measure is intended to protect

“traditional marriage”, which has been recognised by the Court as a “weighty and legitimate interest”.7

However, the ECtHR has also established that limitations on the right to marry

“must not restrict or reduce the right in such a way or to such an extent that the

from marrying in Poland, they had the option to do so in Spain Poland’s refusal had effectively prevented them from getting married in a state where same-sex couples are granted access to marriage, which means that the very essence of the right to marry of

6 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on

Human Rights, as amended) (ECHR) art 12; Rees v the United Kingdom App no 9532/81 (ECtHR, 17

October 1986) para 50

7 Fedotova v Russia App no 73225/01 (ECtHR, 13 April 2006) para 54

8 Rees v the United Kingdom (n 22) para 50; F v Switzerland App no 11329/85 (ECtHR, 18 December

1987) para 32

the applicants in that state has been impaired.1 As argued by the Human Rights Centre

of Ghent University in its Third-Party Intervention:

the mere fact that a State does not allow for same-sex marriage does not contradict the possibility of that State nonetheless being subjected to some kind of obligations under Article 12, such as the obligation not to hinder the effective enjoyment by its

nationals of their right to marry in another country.”2

Furthermore, the Human Rights Centre also emphasised the importance of analysing the case in light of increasing transnational mobility, particularly within the European Union Thus, they exhorted the Court to take into account this factor “with

a view to ensuring that those human rights which are prerequisite to the effective enjoyment of transnational lives are not unduly hampered by the acts of the States concerned.”27 To rule otherwise “would grant a disproportionate power for rights-restrictive States in transnational situations, a scenario that in our opinion runs counter

to the object and purpose of the Convention as an instrument for the protection of

The overreliance on domestic law is also a classic example of “excessive formalism’ The ECtHR has held in the context of the right of access to a court under Article 6(1) that the practical and effective enjoyment of this right can be impaired by

applicable by analogy to the case of certificate of non-impediment, since “excessive formalism” with respect to that certificate effectively impairs the enjoyment of the

Finally, regarding the potential argument that states are entitled to protect traditional marriage, this argument is also weak given that granting a certificate of non-impediment

is not equal to recognising or legalising same-sex marriage, particularly because Schalk

and Kopf still allows states to refuse recognition of same-sex marriage.31 In its Party intervention, the Human Rights Centre also made an analogy with the case of

Third-1 Eva Brems et al, “European Court of Human Rights, Szypuła v Poland and Urbanik & Alonso Rodriguez

v Poland (Application Nos 78030/14 and 23669/16), Third Party Intervention by the Human Rights Centre of Ghent University” (Human Rights Centre) <hrc.ugent.be/wp-content/uploads/2020/11/

Szypula-v.-Poland-TPI.pdf> accessed 23 November 2021, 3-4

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

concerned with granting the right of residence to the same-sex spouse of a European

this case ruled that the right to residence “does not undermine the national identity or

Centre then asserted that this dictum is also applicable in the context of certificate of impediment, as “the mere granting of a marriage eligibility certificate to a national who wants to contract a same-sex marriage abroad would similarly not undermine national identity or pose a threat to public policy.”4

Right to Private and Family Life

Even if it is assumed that the right to marry is not applicable at all to the case of certificate of non-impediment due to the existence of the phrase “men and women’, refusal to issue the document still intervenes with the right to private and family life Article 8(1) of the ECHR enshrines that “Everyone has the right to respect for his

of the ICCPR is phrased in a slightly different manner: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor

uses the term vie privée.7 As observed by Nowak, “[d]espite the discrepancy in the two authentic English texts, it may be assumed that “private life” under Art 8 of the ECHR and “privacy” under Art 17 of the Covenant basically means the same thing

(…).”8

Under the jurisprudence of the ECtHR, it has been established that “the relationship

of a same-sex couple (…) falls within the notion of “private life” within the meaning

of Article 8.”9 Furthermore, the Court in Schalk and Kopf also ruled that “it is artificial

7 Pacte international relatif aux droits civils et politiques (adopted 16 December 1966, entered into force

23 March 1976) <ohchr.org/FR/ProfessionalInterest/Pages/CCPR.aspx> accessed 23 November 2021

8 Nowak (n 15) 385

9 Oliari and Others v Italy (n 21) para 103

to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8.”1 Additionally, the Court

observed in Orlandi and Others v Italy that:

(…) there is no reason why a State’s acknowledgment of the real marital status

of a person, be it, inter alia, married, single, divorced, widow or widower, should not

form part of his or her personal and social identity, and indeed psychological integrity protected by Article 8 Therefore, registration of a marriage, being a recognition of

an individual’s legal civil status, which undoubtedly concerns both private and family life, comes within the scope of Article 8 § 1.2

Thus, the intention of same-sex couples to marry abroad does fall under the ambit

of not only private life, but also family life In this regard, refusal to issue a certificate

of non-impediment prevents same-sex couples from enjoying their private and family life with their partner abroad, and negates a part of their personal and social identity Thus, it constitutes an interference with Article 8 of the ECHR

The HRC has also held in the landmark case of Toonen v Australia that consensual sex between adults in private falls under the scope of the term “privacy” or vie privée.3Furthermore, it has long been established by the HRC that privacy “refers to the sphere of a person’s life in which he or she can freely express his or her identity, be

it by entering into relationships with others or alone.”4 Thus, a relationship between persons of the same sex is also covered by this term As for the meaning of “family’, the HRC observed in General Comment 16 that “the objectives of the Covenant require that for purposes of article 17 this term be given a broad interpretation to

include all those comprising the family as understood in the society of the State party

point and further added that “cultural traditions should be taken into account when defining the term “family” in a specific situation.”6 As a result, in a case concerning refusal to issue a certificate of non-impediment, it would seem that the term “family”

1 Schalk and Kopf v Austria (n 16) para 94; ibid; Chapin and Charpentier v France App no 40183/07 (ECtHR, 9 June 2016) para 44; Vallianatos and Others v Greece App nos 29381/09 and 32684/09

(ECtHR, 7 November 2013) para 73

2 Orlandi and Others v Italy App nos 26431/12; 26742/12; 44057/12 and 60088/12 (ECtHR, 14 December

2017) para 144

3 Toonen v Australia (1994) UN Doc CCPR/C/50/D/488/1992, para 8.2

4 Coeriel and Aurik v the Netherlands (1994) UN Doc CCPR/C/52/D/453/1991, para 10.2; G v Australia

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

would be interpreted in line with the prevailing understanding and cultural traditions

of the refusing state Nevertheless, Article 17(1) is still applicable since the refusal to issue the certificate interferes with the couple’s privacy who intended to marry abroad The admissibility of the right to private and/or family life may be contested by

the claim that the right to marry is a lex specialis, and thus it takes precedence over the two in the matter of same-sex marriage In the case of Hämäläinen v Finland, the ECtHR explicitly held that “Article 12 of the Convention is a lex specialis for the right

to marry.”1 Moreover, in Joslin, the HRC found that “Given the existence of a specific

provision in the Covenant on the right to marriage, any claim that this right has been violated must be considered in the light of this provision.”2 However, this lex specialis

claim is only valid specifically with regard to recognition and legalisation of same-sex marriage Refusal to issue a certificate of non-impediment is already concerned with a different matter: a state preventing its own citizen from marrying abroad As a result,

the lex specialis argument would not hold, and the right to private and/or family life

would still apply

Since there is an interference with Article 8 of the ECHR and Article 17 (1) of the ICCPR, the question would be whether the refusal to issue a certificate of non-impediment can be justified by one of the grounds of limitations enshrined in each respective convention, such as protection of (public) morals.3 A potential argument in this regard is that the refusal reflects the profound moral values of the society of the refusing state that is against same-sex marriage Nevertheless, this argument is rather weak; as has been discussed in the previous Subsection, there is no link between granting a certificate of non-impediment to a few individuals to the destruction of the so-called “traditional family’ In this light, it is difficult to sustain that the refusal to issue a certificate of non-impediment is necessary and proportional to achieve the aim

of protecting (public) morals

Right to Non-Discrimination

The refusal to issue a certificate of non-impediment to same-sex couples can be considered a violation of the autonomous right to non-discrimination as enshrined

1 Hämäläinen v Finland (n 21) para 96

2 Joslin v New Zealand (n 14) para 8.2

3 See ECHR (n 22), art 8(2) While the right to be free from arbitrary or unlawful interference with one’s privacy and family does not contain any limitation clause under the ICCPR, the HRC has interpreted the term “arbitrary” to mean that the interference must be “reasonable’, which means that it has to be

“necessary in the circumstances of any given case” and “proportionate to the end sought” See Toonen v Australia (n 43) para 8; General Comment 16 (n 45) para 4; G v Australia (n 44) para 7.4

under Article 26 of the ICCPR and Article 1 of Protocol No 12 of the ECHR Moreover, the refusal is contrary to the accessory right to non-discrimination as found under Article 2(1) of the ICCPR and Article 14 of the ECHR, which are invokable in conjunction with the right to private and family life or the right to marry (depending

on whether same-sex relationship falls under the ambit of “family” and “marry’, as explored in the previous two Subsections) The reason is because the refusal is based

on the fact that the applicants do not intend to marry the opposite sex This means that the refusal is solely grounded on the sexual orientation of the applicants Opposite-sex couples do not have to face this predicament, as the document would be issued once they show the identity of their opposite-sex spouse Thus, there is a difference in treatment between same-sex and opposite-sex couples in states where the decision to issue a certificate of non-impediment is linked with heteronormative marriage Under the jurisprudence of the ICCPR, despite the right to marry being only applicable to opposite-sex couples, states are still not allowed to unlawfully discriminate against same-sex couples, particularly in light of the observation that “the reference to

“sex” in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation.”1

As observed by Rajsoomer Lallah and Martin Scheinin in their individual opinion to

Joslin, the finding that states do not have to legalise same-sex marriage:

should not be read as a general statement that differential treatment between married couples and same-sex couples not allowed under the law to marry would never amount to a violation of article 26 On the contrary, the Committee’s jurisprudence supports the position that such differentiation may very well amount to prohibited

Nowak also found that “a denial of certain rights or benefits to same-sex couples that are available to married couples may amount to discrimination prohibited under article 26, unless otherwise justified on reasonable and objective criteria.”52 Thus, he argued that “[i]f States uphold unreasonable distinctions between married and same-sex couples in the enjoyment of other rights, such as housing, social security, pension

or inheritance rights, while not interfering with the right to marry in Art 23(2), may nevertheless constitute discrimination in violation of Art.26.”53

The jurisprudence of the HRC further corroborates that states can still be found to violate the right to non-discrimination if they discriminate against same-sex couples In

1 Toonen v Australia (n 43) para 8.7

2 Individual Opinion of Committee Members Mr Rajsoomer Lallah and Mr Martin Scheinin (concurring), Juliet Joslin, Jennifer Rowan, Margaret Pearl and Lindsay Zelf v New Zealand (2002) UN Doc CCPR/

C/75/D/902/1999 52 Nowak (n 15) 526 53 ibid 527

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

the case of X v Colombia, national courts in Colombia refused to transfer a deceased man’s

pension to his lifelong partner, even though this was possible for opposite-sex couples Similar to how states may defend the certificate of non-impediment, Colombia claimed that the purpose of the law “was simply to protect heterosexual unions, not to undermine

held that “the State party has 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.”2Consequently, the HRC found that Article 26 of the ICCPR was violated

Subsequently, in 2017, the HRC in C v Australia had to decide whether states may

that under Australian law, there are also other forms of opposite-sex marriage that are not recognised in Australia, namely polygamous marriage and marriages involving parties who are between 16 and 18 years Australians who have contracted such a marriage abroad

do have the possibility of obtaining a divorce in Australia Consequently, the HRC found that there is a differential treatment between homosexual and heterosexual couples.4 Since the HRC ruled that there was a differential treatment, in accordance with its jurisprudence

on Article 26, the question was whether this distinction pursues a legitimate aim and is reasonable and objective.5 The HRC then found that Australia failed to justify why the exceptions for polygamous and underage marriage were not also applicable for same-sex marriage The HRC also asserted that “compliance with domestic law does not in and of itself establish the reasonableness, objectiveness or legitimacy of a distinction.”6Consequently, the HRC concluded that there had been a violation of Article 26.6

These two cases demonstrate that even if the right to marry does not impose an obligation to legalise same-sex marriage, states still have to ensure that their existing measures do not create an unlawful distinction between opposite-sex and same-sex couples As observed by Aleardo Zanghellini, “under the ICCPR, the interest in founding and cultivating interpersonal relationships in lesbian and gay families is no less valuable than the corresponding interest in heterosexual families.”7 In the context

1 X v Colombia (2007) UN Doc CCPR/C/89/D/1361/2005, para 7.1

2 ibid 7.2

3 C v Australia (2017) UN Doc CCPR/C/119/D/2216/2012, para 2.1-2.2

4 ibid para 8.3

5 ibid para 8.4

6 ibid para 8.6 60 ibid

7 Aleardo Zanghellini, “To What Extent Does the ICCPR Support Procreation and Parenting by Lesbians and Gay Men?” Melbourne Journal of International Law” (2008) 9 Melbourne Journal of International Law 125, 149

of certificate of non-impediment, the discriminatory treatment was the fact that sex couples were unable to obtain such a certificate At the same time, opposite-sex couples who also intended to marry abroad did not have to face this predicament This implies that the refusal would be contrary to Article 26 of the ICCPR and Article 2(1)

same-of the ICCPR in conjunction with the right to privacy

As for the ECHR, it has long been established under the jurisprudence of the Court that sexual orientation constitutes one of the grounds of non-discrimination under the

of an individual’s private life”, states would have to advance “particularly weighty reasons” in order to justify a differential treatment.2 Furthermore, the Court observed

in Kozak v Poland that:

Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought Still, it must also be shown that it was necessary in the circumstances Indeed, if the reasons advanced for a difference in treatment were based solely on the applicant’s sexual orientation, this would amount to discrimination under the Convention.6

Since the refusal to issue a certificate of non-impediment is based solely on

sexual orientation, in abstracto this decision would infringe Article 14 of the ECHR

in conjunction with the right to marry and the right to private and family life, and also Article 1 of Protocol No 12 of the ECHR (if the state concerned has ratified the protocol) Having established that the right to non-discrimination is infringed, the question would be whether the refusal is justified; in other words, whether it is based on

“reasonable and objective” criteria for the purpose of the ICCPR, or whether it is grounded on “particularly serious reasons” under the jurisprudence of the ECtHR

In this regard, the onus is on the state to prove that the refusal satisfies these criteria Nevertheless, given that the refusal itself is based solely on the sexual orientation

of the applicants, it would be rather difficult for states to uphold the legality of this discriminatory treatment.3

1 Salgueiro da Silva Mouta v Portugal App no 33290/96 (ECtHR, 21 December 1999) para 28; Karner v Austria App no 40016/98 (ECtHR, 24 July 2003) para 37; Kozak v Poland App no 13102/02 (ECtHR,

2 March 2010) para 92 See also Jens M Scherpe, “Same-Sex Couples Have Family Life” (2010) 69 Cambridge Law Journal 463, 46465

2 Kozak v Poland (n 62) para 92 64 ibid, emphasis added

3 Brems et al (n 25) 6 66 Brems et al (n 25) 7

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

Table 1: Summary of the Compatibility of the Refusal to Issue a Certificate of Non-Impediment

with International Human Rights Law

Right to Marry Right to marry is not applicable Violation of Article 12

Right to Private and Family

Life

Right to family life is not applicable, but the violation of right to privacy/vie privée Violation of Article 8 Right to Non-Discrimination Violation of Article 2(1) in conjunction

with the right to privacy, and Article 26 Violation of Article 14 in conjunction with the right to marry and the right to private and

family life, and Article 1 of Protocol No 12 (if the state concerned has ratified this protocol)

The Requirement to Provide a Certificate of Non-Impediment as a Human Rights Violation

On the other side of the coin, the issue with the certificate of non-impediment would not have arisen in the first place if the country where same-sex marriage is legalised did not require this document As observed by the Human Rights Centre in

its Third-Party Intervention to the case of Szypuła, “it is only because Spanish private

international law referred to Polish family law that the Polish authorities were placed

in a position in which they could make a decision to deny granting the applicants the

marriage can also be found to be in violation of the right to marry, the right to private and family life and the right to non-discrimination if they insist that this certificate is

a prerequisite for same-sex marriage

I argue that the findings of the previous Subsection are also applicable in this case, because by requiring same-sex couples to furnish a certificate of non-impediment in

an “excessively formalist” manner, the state concerned has effectively impaired the enjoyment of the applicants’ right to marry and the right to private and family life

A major difference is that under the ICCPR, the right to marry under Article 23(2) and the right to protection of family from arbitrary or unlawful interference under Article 17(1) are also applicable, since the country who imposed the requirement has recognised that same-sex couples enjoy these rights

Moreover, as has been argued above, this bureaucratic hurdle only affects sex couples It therefore also constitutes a violation of the right to non-discrimination

same-on the grounds of sexual orientatisame-on Indeed, there is usually a possibility to request

an exemption in several countries In Germany, for instance, Section 1309(2) of the German Civil Code stipulates that the president of the higher regional court may grant

1 ibid.

create an extra burden for LGBT non-nationals who must expect to wait between four and eight weeks for a decision to be made, and spend between 10 to 300 euros to cover the court fees, with no guarantee that an exemption will be granted.1 Furthermore, the burden is also on the applicant to prove that the certificate is impossible to obtain, which would be onerous given that the problem usually occurs in practice Heterosexual non-nationals do not face this obstacle, which means that the application of the requirements

of the certificate of non-impediment as found under Section 1309 of the German Civil Code leads to a discriminatory effect towards LGBT people

Furthermore, as convincingly argued by the Human Rights Centre in its Party Intervention, there is also a discrimination based on nationality:

Third-If a Contracting State, for example Spain, allows same-sex marriages, a national leading a genuine family life should in principle also be able to exercise the right to contract a same-sex marriage in that State The fact that access to same-sex marriage is made dependent on the legislation of the State of nationality of the spouses (including by requiring the submission of documents providing information on the marital status or capacity to marry), amounts to a difference of treatment on the ground

non-of nationality for which “very weighty reasons” would have to be put forward The mere fact that private international law often uses nationality as a connecting factor to determine which law applies to a particular situation with an international dimension (i.e the designated law), does not in itself justify such discriminatory treatment In the past, the Court has made clear Contracting States can freely determine the appropriate connecting factor, on condition, however, that the result obtained after applying the

Consequently, states would have to furnish “very weighty reasons” to justify the differential treatment under the ECHR, or the treatment has to be based on “objective and reasonable criteria” under the ICCPR

In this regard, states are likely to argue that the certificate is intended to protect public order, specifically to prevent bigamy, and thus the requirement is imposed on all non-nationals, irrespective of their sexual orientation However, I would submit here that the measure is disproportionate to achieve this aim Suppose the certificate must

be furnished at all costs without exception In that case, this requirement will constitute

a perpetual restraint on LGBT non-nationals from being able to enter into same-sex marriage This effectively impairs the enjoyment of their rights Moreover, there are

1 “Befreiungsverfahren bei ausländischen Verlobten“ (Stadt Heidelberg) <www.heidelberg.de/hd/HD/

Rathaus/Befreiungsverfahren.html> accessed 23 November 2021

2 Brems et al (n 25) 8

LEGALISATION OF SAME-SEX MARRIAGE: A GLOBAL PERSPECTIVE

also less intrusive means available to fulfil this aim, such as the possibility to confirm by signature under criminal liability that one is unmarried.1 In fact, many states have also

with these means without having to impose a perpetual restraint on LGBT non-nationals For cases where it is not possible to apply for an exemption, the requirement would still impose an onerous burden on LGBT non-nationals, and with the availability of a less intrusive means, this measure also cannot be regarded as proportionate

Table 2: Summary of the Compatibility of the Requirement to Provide a Certificate

of Non-Impediment with International Human Rights Law

Right to Marry Violation of Article 23(2) Violation of Article 12

Right to Private and Family Life Violation of Article 17(1) Violation of Article 8

Right to Non-Discrimination Violation of Article 2(1) in

conjunction with Article 23(2) and 17(1), and Article 26

Violation of Article 14 in conjunction with Article 12 and

8, and Article 1 of Protocol No 12 (if the state concerned has ratified this protocol)

CONCLUSION

This paper has analysed certificates of non-impediment from the perspective of international human rights law This bureaucratic requirement was initially intended to prevent bigamy, and yet its excessively formalist application has led to a discriminatory outcome against LGBT non-nationals, specifically those who hail from homophobic countries The imposition of this requirement also effectively hampers the right of LGBT non-nationals to marry and enjoy their private and family life, and thus the requirement

to provide a certificate of non-impediment constitutes a human rights violation

The case study of the certificate of non-impediment has also highlighted how the scope of the right to marry and the right to family life can determine which right

is applicable Under the jurisprudence of the HRC, these rights are only applicable

to opposite-sex couples, and thus same-sex couples could only benefit from the protection of the right to non-discrimination and the right to privacy Meanwhile, under

1 See, for instance, “If You Wish to Get Married in Denmark” (Familieretshuset) <familieretshuset.dk/en/

yourlife-situation/your-life-situation/international-marriages/if-you-wish-to-get-married-in-denmark> accessed 23 November 2021: “If you do not include a certificate of marital status in your application, you confirm under criminal liability with your signature that you are both unmarried.”

2 See, for instance, Art 391, Strafwetboek <www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language

=nl&la=N&table_name=wet&cn=1867060801> accessed 23 November 2021; § 172 StGB <www.lewik org/term/15657/bigamy-section-172-german-criminalcode/> accessed 23 November 2021; Section 57 Offences Against The Person Act, 1861, <www.irishstatutebook.ie/eli/1861/act/100/section/57/enacted/ en/html> accessed 23 November 2021

the ECHR, the Court has recognised that the right to marry and the right to family life are no longer exclusively applicable to opposite-sex couples, and thus same-sex couples can invoke these rights in the case of the certificate of non-impediment These differences could perhaps dissipate in the future if the HRC decides to “update” its jurisprudence on the right to marry and protect the family from arbitrary or unlawful interference

At the same time, this study has not delved into the issue of the certificate of the

non-impediment in practice Despite the right to marriage equality being guaranteed at

the national level, bureaucrats and judges often construe regulations concerning impediment certificates in an excessively formalist manner, which prevents LGBT non-nationals from exercising their rights Furthermore, they are often unaware of the existing international human rights standards As observed by Sarah Den Haese in her research:

non-In the online survey distributed among Belgian and Dutch public servants (…), no less than 124 participants (or 80% of the respondents who answered this question) disclosed that they are not aware of the case-law of the ECtHR regarding the recognition of a personal status obtained abroad Only 31 participants stated that they are familiar with the ECtHR’s case-law, of which only 20 indicated that they also apply this case law in practice At the level of the courts, the situation is not different Only a handful of cases referred to the case-law of the ECtHR and the rights and

More studies are needed in order to understand the extent to which the certificate

of non-impediment has impeded the right to marry in practice; the results could be

pertinent to designing a program to increase awareness among civil servants and judges Nevertheless, this research has fulfilled its role by demonstrating how the requirement to provide a certificate of non-impediment is not in line with human rights States should therefore abolish this requirement in order to ensure that the rights of LGBT non-nationals are not further trampled in a country where hard-earned marriage equality is already a reality for nationals

1 Sarah Den Haese, “Crossing Borders: Proving Your Personal Status, Interactions between Private International Law and Human Rights Law” (DPhil thesis, Ghent University 2021) 315 para 544

DOES THE POLISH CONSTITUTION DEFINE MARRIAGE ONLY

AS A UNION BETWEEN A MAN AND A WOMAN, OR IS ANOTHER

INTERPRETATION POSSIBLE? POLEMIC WITH THE PREVIOUS JURISPRUDENCE

Anne Michalak 1

INTRODUCTION

The change of approach to homosexuality and homosexual relationships took place gradually In the interwar period and the first two decades after the Second World War, depenalization of homosexual acts took place in developed countries The culmination of this stage was the official deletion of homosexuality from the list

of mental disorders by the American Psychiatric Association in 1973, and in 1990 by

Currently, there are 30 jurisdictions all over the world where same-sex marriage is legal Among them, 21 countries/jurisdictions have legalized same-sex marriage nationally through legislation However, Australia, Ireland and Switzerland legalized same-sex marriage through legislation only after nationwide votes Another seven countries/jurisdictions have legalized same-sex marriage nationally through court decisions (Austria, Brazil, Colombia, Costa Rica, Ecuador, Mexico, South Africa, Taiwan and the United States of America), and two countries/jurisdictions (South Africa and Taiwan), enacted legislation legalizing same-sex marriage after courts mandated them to do so.3

Regarding the same-sex marriage legal regulations, Europe is both the leader

in the number of states that allow same-sex marriage (16) and the pioneer, as the first jurisdictions that allowed same-sex marriage were the Netherlands in 2001 and

1 Ph.D in law, Assistant Professor at the Department of Constitutional Law, Faculty of Law and Administration, University of Łódź, Poland (ORCID: 0000-0001-74305817).

2 World Health Organisation https://www.who.int/bulletin/volumes/92/9/14-135541/en/ (accessed: 12.01.2019).

3 https://www.hrc.org/resources/marriage-equality-around-the-world (accessed: 28.11.2021)

4 Germany has legalized same-sex marriage in 2017.