LGBT rights in the British Virgin Islands

Last updated

LGBTQ rights in the British Virgin Islands
LocationBritishVirginIslands.png
Status Legal since 2001
Gender identity No
Military Yes
Discrimination protections Yes, sexual orientation only
Family rights
Recognition of relationships No
Adoption No

Lesbian, gay, bisexual, and transgender (LGBT) persons in the British Virgin Islands face legal challenges not experienced by non-LGBTQ residents. Same-sex sexual activity has been legal in the British Virgin Islands since 2001. [1]

Contents

Law regarding same-sex sexual activity

Before 2001, anal sex and oral sex for both heterosexuals and male homosexuals were criminal offences, referred to as "buggery" under the British Virgin Islands Criminal Code. Lesbian activity has never been illegal. Age of consent is set at 16, regardless of gender or sexual orientation.

Sexual acts between two consenting adults in private were expressly decriminalized by an Order in Council in the British Virgin Islands (and other British Overseas Territories) by the British Government pursuant to Sections 3(1) and 3(7) of the Caribbean Territories (Criminal Law) Order, 2000. [2] According to section 4 of the order, the law has retrospective effect. There are two exceptions to the law: group sex and sex in public remain criminal offences and may also lead to charges under gross indecency and other minor sexual offence laws. [3]

As a British Overseas Territory, the British Virgin Islands Government is required to comply with their obligations under international human rights instruments. Specifically, this includes an adherence to the European Convention on Human Rights, which highlight a responsibility to ensure non-discrimination and equality. [4] The European Convention on Human Rights has been recognised by the courts as having legal effect in the jurisdiction. [5]

Recognition of same-sex relationships

Recognition of same-sex unions in the Lesser Antilles and Puerto Rico
.mw-parser-output .legend{page-break-inside:avoid;break-inside:avoid-column}.mw-parser-output .legend-color{display:inline-block;min-width:1.25em;height:1.25em;line-height:1.25;margin:1px 0;text-align:center;border:1px solid black;background-color:transparent;color:black}.mw-parser-output .legend-text{}
Same-sex marriage
Unregistered cohabitation
Island subject to IACHR ruling
No recognition of same-sex couples
Constitutional ban on same-sex marriage
Same-sex sexual activity illegal but penalties not enforced
v
t
e Same-sex legislation Lesser Antilles (named).svg
Recognition of same-sex unions in the Lesser Antilles and Puerto Rico
  Same-sex marriage
  Unregistered cohabitation
  Island subject to IACHR ruling
  No recognition of same-sex couples
  Constitutional ban on same-sex marriage
  Same-sex sexual activity illegal but penalties not enforced

Same-sex marriages and civil unions are not legal in the British Virgin Islands. The British Virgin Islands is an extremely religious society, [6] and no discussion relating to legalisation has yet occurred in the House of Assembly.

In 2015, Premier Orlando Smith, whilst affirming his personal opposition to same-sex marriage, indicated that he is open to public consultation on the issue. [7] However, the Marriage (Amendment) Act 2017 made no provision for same-sex marriages, and politicians speaking in the House of Assembly took time to comment on the absence of such provisions and express hostility to same-sex marriage and LGBT people more broadly. [8]

Church leaders have indicated hostility towards the possibility of legalisation, [9] and political leaders have taken an unsympathetic approach in public. [10] His Majesty's Government has confirmed that it will not impose recognition of same-sex marriages in the British Virgin Islands by way of an Order in Council. [11]

In 2021 a local couple sought a judicial review challenging the constitutionality of the refusal to recognise their same-sex marriage (celebrated in the United Kingdom). [12] The proceeding was stayed pending the outcome of appeals to the Privy Council in two cases involving Bermuda and the Cayman Islands, though evidentiary proceedings were continued in July 2022 as the government defended the island's statute banning same-sex marriage in the court. [13] In December 2022 the Premier of the British Virigin Islands Natalio Wheatley announced the government would seek to pass legislation authorising it to hold a referendum on same-sex marriage and expansion of domestic partnership rights in 2023. [14]

Discrimination protections

The 2007 Constitution prohibits discrimination against people on the basis of sexual orientation: [15]

Whereas every person in the Virgin Islands is entitled to the fundamental rights and freedoms of the individual;
Whereas those fundamental rights and freedoms are enjoyed without distinction of any kind, such as sex, race, colour, language, religion, political or other opinion, national, ethnic or social origin, association with a national minority, property, family relations, economic status, disability, age, birth, sexual orientation, marital or other status, subject only to prescribed limitations;
"Discriminatory" means affording different treatment to different persons on any ground such as sex, race, colour, language, religion, political or other opinion, national, ethnic or social origin, association with a national minority, property, family relations, economic status, disability, age, birth, sexual orientation, marital or other status

Living conditions

The British Virgin Islands is a conservative and religious society. Open displays of affection between same-sex partners may offend, and LGBT people generally keep their sexual orientation a secret and stay in the closet. [16] There are reports of same-sex couples and LGBT people being harassed and even physically attacked. [16] Some of these violent attacks have been justified or excused by locals as simply "following the Bible".

Summary table

Same-sex sexual activity legal Yes check.svg (Since 2001)
Equal age of consent (16) Yes check.svg (Since 2001)
Anti-discrimination laws in employment Yes check.svg (Since 2007)
Anti-discrimination laws in the provision of goods and services Yes check.svg (Since 2007)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) Yes check.svg (Since 2007)
Same-sex marriages X mark.svg
Recognition of same-sex couples X mark.svg
Stepchild adoption by same-sex couples X mark.svg
Joint adoption by same-sex couples X mark.svg
LGBT allowed to serve openly in the military Yes check.svg (Responsibility of the United Kingdom)
Right to change legal sex X mark.svg
Access to IVF for lesbians X mark.svg
Commercial surrogacy for gay male couples X mark.svg (Banned for heterosexual couples as well)
MSMs allowed to donate blood X mark.svg

See also

Related Research Articles

<span class="mw-page-title-main">LGBT rights in the United Kingdom</span>

The rights of lesbian, gay, bisexual, and transgender (LGBTQ) people in the United Kingdom of Great Britain and Northern Ireland have developed significantly over time. Today, lesbian, gay and bisexual rights are considered to be advanced by international standards.

<span class="mw-page-title-main">LGBTQ rights in Australia</span>

Lesbian, gay, bisexual, transgender and queer (LGBTQ) rights in Australia rank among the highest in the world; having significantly advanced over the latter half of the 20th century and early 21st century. Opinion polls and the Australian Marriage Law Postal Survey indicate widespread popular support for same-sex marriage within the nation. Australia in 2018, in fact was the last of the Five Eyes set of countries - that consisted of namely Canada (2005), New Zealand (2013), United Kingdom (2014) and the United States (2015) to legalize same-sex marriage. A 2013 Pew Research poll found that 79% of Australians agreed that homosexuality should be accepted by society, making it the fifth-most supportive country surveyed in the world. With its long history of LGBTQ activism and annual Gay and Lesbian Mardi Gras festival, Sydney has been named one of the most gay-friendly cities in the world.

<span class="mw-page-title-main">LGBT rights in the Isle of Man</span>

Lesbian, gay, bisexual, and transgender (LGBT) rights in the British Crown dependency of the Isle of Man have evolved substantially since the early 2000s. Private and consensual acts of male homosexuality on the island were decriminalised in 1992. LGBTQ rights have been extended and recognised in law since then, such as an equal age of consent (2006), employment protection from discrimination (2006), gender identity recognition (2009), the right to enter into a civil partnership (2011), the right to adopt children (2011) and the right to enter into a civil marriage (2016).

<span class="mw-page-title-main">LGBT rights in Solomon Islands</span>

Lesbian, gay, bisexual, and transgender (LGBT) people in Solomon Islands face legal challenges not experienced by non-LGBTQ residents. Male same-sex sexual activity is illegal, punishable by up to 14 years imprisonment, but the law is not enforced.

<span class="mw-page-title-main">LGBT rights in Gibraltar</span>

Lesbian, gay, bisexual and transgender (LGBT) rights have evolved significantly in the past decades in the British Overseas Territory of Gibraltar. Same-sex sexual activity has been legal since 1993 and the age of consent was equalised to 16 in 2012. The Supreme Court of Gibraltar ruled in April 2013 that same-sex couples have the right to adopt. Civil partnerships have been available to both same-sex and opposite-sex couples since March 2014, and in October 2016, Gibraltar voted to legalise same-sex marriage with the Civil Marriage Amendment Act 2016 passing unanimously in Parliament. The law received royal assent on 1 November and took effect on 15 December 2016.

<span class="mw-page-title-main">Sodomy law</span> Laws criminalising certain sexual acts

A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law, but are typically understood and defined by many courts and jurisdictions to include any or all forms of sexual acts that are illegal, illicit, unlawful, unnatural and immoral. Sodomy typically includes anal sex, oral sex, manual sex, and bestiality. In practice, sodomy laws have rarely been enforced to target against sexual activities between individuals of the opposite sex, and have mostly been used to target against sexual activities between individuals of the same sex.

<span class="mw-page-title-main">LGBT rights in Bermuda</span>

Lesbian, gay, bisexual, and transgender (LGBT) people in Bermuda, a British Overseas Territory, face legal challenges not experienced by non-LGBT residents. Homosexuality is legal in Bermuda, but the territory has long held a reputation for being homophobic and intolerant. Since 2013, the Human Rights Act has prohibited discrimination on the basis of sexual orientation.

<span class="mw-page-title-main">LGBT rights in the Cayman Islands</span>

LGBTQ+ rights in the Cayman Islands are regarded as some of the most progressive in the Caribbean. While the British territory still has a long way to go, it continues to relax its stance on this subject. Both male and female types of same-sex sexual activity are legal in the Cayman Islands. Same-sex unions became legal in 2020.

<span class="mw-page-title-main">LGBT rights in Montserrat</span>

Lesbian, gay, bisexual, and transgender (LGBT) persons in Montserrat face legal challenges not experienced by non-LGBTQ residents. Same-sex sexual activity has been legal in Montserrat since 2001.

<span class="mw-page-title-main">LGBT rights in the Turks and Caicos Islands</span>

Lesbian, gay, bisexual, and transgender (LGBT) persons in the British Overseas Territory of the Turks and Caicos Islands face legal challenges not experienced by non-LGBTQ residents. Same-sex sexual activity has been legal in the Turks and Caicos Islands since 2001, and discrimination based on sexual orientation is constitutionally banned.

<span class="mw-page-title-main">LGBT rights in the Falkland Islands</span>

Lesbian, gay, bisexual, and transgender (LGBT) people in the British Overseas Territory of the Falkland Islands enjoy most of the same rights as non-LGBT people. Marriage and civil partnerships have been open to both opposite-sex and same-sex couples since 29 April 2017. Discrimination on the basis of sexual orientation is constitutionally banned. Additionally, attitudes are largely positive; a public consultation found that 90% of respondents were in favour of same-sex marriage.

<span class="mw-page-title-main">LGBT rights in the Commonwealth of Nations</span>

The majority of the countries of the Commonwealth of Nations, formerly known as the British Commonwealth, still criminalise sexual acts between consenting adults of the same sex and other forms of sexual orientation, gender identity and expression. Homosexual activity remains a criminal offence in 29 of the 56 sovereign states of the Commonwealth; and legal in only 26.

<span class="mw-page-title-main">LGBT rights in Guernsey</span>

Lesbian, gay, bisexual, and transgender (LGBT) rights in the British Crown dependency of Guernsey have improved significantly in the past decades. Same-sex sexual activity for both men and women is legal in Guernsey. Same-sex marriage has been legal since 2 May 2017 in Guernsey, and since 14 June 2018 in its dependency, Alderney. Legislation approving the legalisation of same-sex marriage in its other dependency, Sark was given royal assent on 11 March 2020. Guernsey is the only part of the British Isles to have never enacted civil partnership legislation, though civil partnerships performed in the United Kingdom were recognised for succession purposes. Since April 2017, same-sex couples can adopt in the entire Bailiwick. Discrimination based on sexual orientation and gender identity has been banned since 2004. Transgender people have been able to legally change gender since 2007.

<span class="mw-page-title-main">LGBT rights in the Northern Territory</span>

Lesbian, gay, bisexual, and transgender (LGBT) people in Australia's Northern Territory have the same legal rights as non-LGBT people. The liberalisation of the rights of lesbian, gay, bisexual and transgender (LGBTQ) people in Australia's Northern Territory has been a gradual process. Homosexual activity was legalised in 1983, with an equal age of consent since 2003. Same-sex couples are recognised as de facto relationships. There was no local civil union or domestic partnership registration scheme before the introduction of nationwide same-sex marriage in December 2017, following the passage of the Marriage Amendment Act 2017 by the Australian Parliament. The 2017 Australian Marriage Law Postal Survey, designed to gauge public support for same-sex marriage in Australia, returned a 60.6% "Yes" response in the territory. LGBT people are protected from discrimination by both territory and federal law, though the territory's hate crime law does not cover sexual orientation or gender identity. The territory was the last jurisdiction in Australia to legally allow same-sex couples to adopt children.

<span class="mw-page-title-main">LGBT rights in Jersey</span>

Lesbian, gay, bisexual, and transgender (LGBTQ) rights in the British Crown dependency of Jersey have evolved significantly since the early 1990s. Same-sex sexual activity was decriminalised in 1990. Since then, LGBTQ people have been given many more rights equal to that of heterosexuals, such as an equal age of consent (2006), the right to change legal gender for transgender people (2010), the right to enter into civil partnerships (2012), the right to adopt children (2012) and very broad anti-discrimination and legal protections on the basis of "sexual orientation, gender reassignment and intersex status" (2015). Jersey is the only British territory that explicitly includes "intersex status" within anti-discrimination laws. Same-sex marriage has been legal in Jersey since 1 July 2018.

<span class="mw-page-title-main">LGBT rights in the United States Virgin Islands</span>

In the U.S. Virgin Islands, Lesbian, gay, bisexual, and transgender (LGBT) rights have evolved substantially in recent years. Same-sex sexual activity has been legal since 1985. The region also provides explicit legal protections against discrimination for LGBTQ residents since December 2022. Following the Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015, which found the denial of marriage rights to same-sex couples unconstitutional, same-sex marriage became legal in the islands.

<span class="mw-page-title-main">LGBT rights in Akrotiri and Dhekelia</span>

Lesbian, gay, bisexual, and transgender (LGBT) persons in the British Overseas Territory of Akrotiri and Dhekelia enjoy most of the same rights as non-LGBT people.

<span class="mw-page-title-main">LGBT rights in the Pitcairn Islands</span>

Lesbian, gay, bisexual, and transgender (LGBT) people in the British Overseas Territory of the Pitcairn Islands enjoy most of the same rights as non-LGBT people. Same-sex sexual activity is legal, discrimination based on sexual orientation is constitutionally outlawed and same-sex marriage has been legal since 14 May 2015.

<span class="mw-page-title-main">Recognition of same-sex unions in the British Overseas Territories</span>

Among the fourteen British Overseas Territories, eight – Akrotiri and Dhekelia, the British Antarctic Territory, the British Indian Ocean Territory, the Falkland Islands, Gibraltar, the Pitcairn Islands, Saint Helena, Ascension and Tristan da Cunha, and South Georgia and the South Sandwich Islands – recognise and perform same-sex marriages. In the Sovereign Base Areas of Akrotiri and Dhekelia, only British military and civilian personnel can enter into same-sex marriages and civil partnerships.

<span class="mw-page-title-main">LGBT rights in Anguilla</span>

Lesbian, gay, bisexual, and transgender (LGBT) persons in Anguilla face legal challenges not experienced by non-LGBTQ residents. Same-sex sexual activity is legal in Anguilla, but same-sex couples cannot marry or obtain civil partnerships. Anguillian law does not forbid discrimination based on sexual orientation or gender identity.

References

  1. State-sponsored Homophobia A world survey of laws prohibiting same sex activity between consenting adults Archived 2013-07-17 at the Wayback Machine
  2. "Britain Scraps Homosexuality Laws". Glapn.org. Retrieved 19 January 2011.
  3. "Local News – British Virgin Islands". Island Sun. Archived from the original on 13 July 2011. Retrieved 19 January 2011.
  4. "Country Profile: British Virgin Islands (British Overseas Territory)". Fco.gov.uk. Archived from the original on 13 April 2011. Retrieved 19 January 2011.
  5. Wang Zhongyong v Union Zone Management (unreported) (BVIHC (Com) 0126/2011
  6. The Constitution of the Virgin Islands defines the territory as one which "believes in God" (article 2(1)). See also: Christianity by country.
  7. "BVI public to decide on gay marriage if necessary". BVI News. 16 July 2015. Archived from the original on 4 October 2017. Retrieved 3 October 2017.
  8. "We don't support gay marriage here, visitors told". BVI News. 8 December 2017. Archived from the original on 30 August 2018. Retrieved 8 December 2017.
  9. "Church Leaders Hopeful BVI Will Stand Ground Against Same Sex Marriages". BVI Platinum news. 12 May 2012.
  10. "None of Us Will Probably Vote For Same Sex Marriage - Health Minister". BVI Platinum News. 19 February 2013.
  11. "UK Will Not Force BVI To Accept Same Sex Marriage - Governor". Platinum News. 20 January 2014.
  12. "EXCLUSIVE: Same-Sex Couple Moves To Court To Have Marriage Legalise". BVI Platinum News. 1 November 2021.
  13. "Christian Council loses appeal bid in same-sex marriage case". BVI News. 29 July 2022.
  14. "BVI to hold referendum on whether to legalise same-sex marriage". BVI News. 19 December 2022.
  15. The Virgin Islands Constitution Order 2007, articles 9 and 26.
  16. 1 2 "Gay Life in British Virgin Islands - GlobalGayz". www.globalgayz.com.