2SLGBTQ+

The 2SLGBTQ+ community is a cornerstone of of our fertility law practice.

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“The (gay, lesbian, bisexual and transgendered) community has always included parents, whether from prior different-sex relationships or within the context of same-sex relationships. Experts estimate that, currently, at least 30% of lesbians and one-tenth of gay men are parents, but the percentages are rising dramatically. We are in the midst of what many describe as a ‘gayby boom’ – so many gay and lesbian families are choosing to have children.” ~ Joanna Radbord, GLBT Families and Assisted Reproductive Technologies, 2010, Canadian Bar Association

 

According to Joanna Radbord, lawyers need to be culturally competent, to have knowledge of, and sensitivity to, the needs and concerns of 2SLGBTQ+ communities to properly serve their 2SLGBTQ+ clients. We at Great Exceptions agree wholeheartedly. 

 

It is a well-established principle of international human rights law, that people have a right to found a family, and that of courses includes members of the 2SLGBTQ+ community. 

 

Article 23(2) of the International Covenant on Civil and Political Rights: 

• 23(2) “The right of men and women of marriageable age to marry and to found a family shall be recognized.”

• This clause has been used (with mixed results) to extend family rights to same-sex couples.  For example:

  • In Joslin v. New Zealand (1999) the Human Rights Committee rejected the claim Article 23(2) created a positive obligation for New Zealand to extend include same-sex marriages in their Marriage Act.  

  • Where as in Young v. Australia (2003), the Committee held that Australia violated Article 23(2) by limiting survivor veteran pension benefits to unmarried opposite sex couples. 

• Had Australia limited the survivor benefits to married couples, the Committee might not have found a violation of the treaty; however, once Australia had turned their mind to extending these benefits to unmarried opposite-sex couples, they could not discriminate against unmarried same-sex couples. 

• Using the same logic in Young v. Australia, if a country allows unmarried opposite-sex couples to adopt or to have surrogacies, then it would violate Article 23(2) to exclude same-sex couples from adoptions and surrogacies. 

 

Articles 2(1), 2(2),  and  7(1) of the Convention on the Right of the Child: 

• 2(1)  "State Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic, or social origin, property, disability, birth or other status."

• 2(2)  "State Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions or beliefs of the child's parents, legal guardians, or family members."

• 7(1)  "The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents."​

• While none of the UN human rights conventions expressly states "sexual orientation or gender identity", the Convention has been interpreted to include such protection. For example, in 2015, the Committee on the Rights of the Child recommended that Iraq :

  • "Ensure that children who belong to lesbian, gay, bisexual and transgender groups or who are cared for by person from these groups, [...] are not subject to any form of discrimination, by raising the public's awareness of equality and non-discrimination on the basis of sexual orientation and gender identity." (UN Doc. CRC/C/IRQ/CO/2-4).

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Principle 24 of the Yogyakarta Principles (an interpretative aid designed to explain how existing international human rights apply to sexual and gender minorities):

• “Everyone has the right to found a family, regardless of sexual orientation or gender identity.  Families exist in diverse forms.  No family may be subject to discrimination on the basis of the sexual orientation or gender identity of any of its members.

States shall:

A.   Take all necessary legislative, administrative and other measures to ensure the right to found a family, including through access to adoption or assisted procreation (including donor insemination), without discrimination on the basis of sexual orientation and gender identity; [...]

J.    Enable access to methods to preserve fertility, such as the preservation of gametes and tissues for any person without discrimination on the grounds of sexual orientation, gender identity, gender expression, or sex characteristics, including before hormonal treatment or surgeries;

K.     Ensure that surrogacy, where legal, is provided without discrimination based on sexual orientation, gender identity, gender expression or sex characteristics."​

• While the Yogyakarta Principles are not strictly speaking a legally binding international treaty, they were drafted by an esteemed panel of international human rights jurists, judges, law professors, and UN Human Rights Committee members and UN special rapporteurs.  Originally drafted in 2006 following a 3-day conclave hosted in Yogyakarta, Indonesia, and later expanded in 2017, the Yogyakarta Principles is an important advocacy tool, especially where discrimination against the 2SLGBTQ+ community exists.  Even here in Canada, there is still work to be done.

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