Caribbean Court of Justice reserves judgement on Maurice Tomlinson case on barred entry due to sexual orientation

judges_of_the_caribbean_court
Justices on the leave hearing panel were back row, left Jacob Wit (Netherlands Antilles) and Winston Anderson (Jamaica) and front row: Rolston Nelson (Trinidad & Tobago), CJ Sir Dennis Byron (St. Kitts & Nevis) and Winston Saunders (St. Vincent & the Grenadines)

HEAR THE AUDIO OF THE SESSION HERE and HERE

Welcome to the Caribbean Court of Justice

MAURICE TOMLINSON & TOM DECKER

The Caribbean Court of Justice heard on November 12th an application against the governments of Belize and Trinidad in which Maurice Tomlinson is challenging the immigration laws of both countries. The hearing was scheduled for two days, but it concluded today, shortly after noon. Tomlinson is Jamaica’s prominent supporter of the rights of lesbians, gays, bisexuals and transgenders. His challenge is premised on the notion that the existing legislations infringe on his right to free movement, dignity and equality within the region, as preserved in the Revised Treaty of Chaguaramas, signed in 2001.  The application for special leave to commence proceedings in the matter was held via teleconference inside the chamber of Justice Michelle Arana.  Tomlinson, the former husband of Acting Solicitor General of Belize, Michele Daly, who has left Belize, has visited the country on two occasions without any problems and has visited Trinidad and Tobago four times with no one aware of his homosexuality. He recently refused invitations by organizations to speak at their conferences and events because he discovered that the laws in both states appear to directly prohibit homosexuals from landing in each country. In Belize’s case he was to visit at the request of the United Belize Advocacy Movement (UNIBAM) last January for a training session.

The fact that he wasn’t prohibited from entering Belize forms the basis of government’s argument that Tomlinson should not be granted leave by the appellate court to seek legal action.  Section Five of Belize’s Immigration Act forbids, among other listed groups, “any prostitute or homosexual or any person who may be living on or receiving or may have been living on or receiving the proceeds of prostitution or homosexual behavior.” Tomlinson, since ending his relationship with Daly, has remarried Tom Decker, a Canadian pastor in New York.  Following today’s proceedings, Acting Solicitor General Nigel Hawke contended that the law in practice is not so narrowly interpreted and in any case Tomlinson has not come here to challenge the law. If he did, Hawke said, he would find that he was welcome here both in the ordinary sense and as a skilled national.

Section 5 of Belize’s Immigration Act – Chapter 156 of the Laws of Belize – lists among the categories of prohibited immigrants “any prostitute or homosexual or any person who may be living on or receiving or may have been living on or receiving the proceeds of prostitution or homosexual behavior…”

Tomlinson’s case was featured in a press release last December from AIDS Free World, an organization of which he is a leading member. That organization called Section 5 of Belize’s Immigration Act “offensive and overbroad.”

It furthermore said that, “Only two countries in the Western Hemisphere, Belize and the Republic of Trinidad and Tobago, arbitrarily ban the entry of homosexuals as a ‘prohibited class’.”

Belize contends, though, that the law is not a blanket prohibition against homosexuals – but there is a clear commercial dimension to it, where the prohibition is directed at the earning of proceeds from such activities – as would be the case for prostitution and commercial sexual exploitation.

Tomlinson said that the United Belize Advocacy Movement (UNIBAM) had invited him to Belize to conduct training and sensitization sessions in January 2013, and after having learned of the provisions of the Immigration Act, he declined the invitation because he is unwilling to break the law to conduct these sessions.

Nigel Hawke, Acting Solicitor General, Belize

NIGEL HAWKE

“Basically the court heard arguments from the applicant, heard arguments from Belize and Trinidad, remember this is an application for special leave.  We made our arguments basically saying that we have a certain interpretation of the Immigration Act, our Immigration Act.  Trinidad made their application and the court has reserved its ruling on the issue of application for special leave.  Our position is that the law is interpreted a certain way, our provision is interpreted a certain way.  It is in relation to persons who profit or earn from either prostitution or homosexuality.  That is our position.”

Reporter

“I notice that you said that that won’t change and our position has been when Mr. Tomlinson was here in Belize that he got free entry and exit into the country.”

Nigel Hawke

“That’s from the standpoint that he is saying that we are saying first that there was no actual prejudice and that is clear.  Nobody is disputing that.  The question here is whether there is a potential prejudice because he says the law there is an impediment to his free movement, in particular to Belize.  We are saying no.  We are saying, based on our interpretation, it is not.  So even if that particular provision remains there our submission, our formal submission is that it remains a provision that only applies to a particular situation.  That is basically it.”

Reporter

“Could you address the comment made in court that the laws that were made were promulgated in a time when society was more homophobic and also that in this day and age with the Caribbean Community Single Market and Economy that there are laws in countries such as Belize that need to be aligned with community laws?”

Nigel Hawke

“Bear in mind that that comment was made by Mr. Senior Counsel Jairam.  I think that is his understanding or opinion in respect of that law.  Yes, you concede see the fact that there are some laws in our book that are outdated but we maintain even with respect to this particular aspect of our law, it has been repeated in our Free Movement National Act and I think parliament must have meant something why they put it there.  This was a law to deal with the persons who come into Belize for employment purposes and we submit that that also gives some kind of clarity as to what meaning the legislation attaches to that particular provision in our Immigration Act.”

Reporter

“Sir, the attorney for the other side said that this particular case has no reference to that skilled labor so it shouldn’t be considered.”

Nigel Hawke

“That’s his submission; he has a right to make his submission.  That is his submission and we respect that but we’ve made our submission.”

The judges of the Caribbean Court of Justice have reserved judgment in the matter. See more HERE  and HERE

Trinidad & Tobago through its lawyer, Law Association President Seenath Jairam, SC, appearing with Wayne Sturge and three other attorneys, argued that what is relevant in determining whether a treaty had been violated was the impeached state’s practice. He argued that Trinidad and Tobago had a policy of non enforcement of the law, which he interpreted to refer to homosexuals and not homosexual prostitutes as Belize argued. The allegedly offending provisions in both laws (primarily sections 5(1)(e) of the Belize Immigration Act and 8(1) (e)of the Trinidad and Tobago Act) are almost identical. Jairam supported his arguments with such cases as the recent Shanique Myrie decision, which was repeatedly referenced in the proceedings.

Jairam argued that because Trinidad and Tobago’s state practice was such that it didn’t prevent homosexuals from entering and that because Tomlinson was not prevented from entering before, the application was “an academic exercise”. Tomlinson will not ever be denied entry simply by virtue of being a homosexual, he declared. He drew a comparison to hanging, saying that Trinidad and Tobago had laws on its books which allowed hanging but that they nonetheless did not hang. When asked by the court whether that meant that hanging was illegal, he responded that that was a matter for the constitutional court. He alluded to the fact that governments had financial constraints and that there were costs involved in repealing laws. (Incidentally that has not prevented Trinidad and Tobago from repealing other laws it wished to repeal.)

Jairam argued further that Tomlinson could have applied for a special permit from the Minister responsible for immigration as Sir Elton John did back in 2007. Gifford had earlier stated there is no waiver available to homosexuals of the prohibition in the law, and pointed the court to the section of the Trinidad and Tobago Immigration Act which permits the Minister responsible for Immigration to grant such a  permit. While Gifford argued the permit is limited to two classes of prohibited immigrants specifically mentioned in a subsection of the law, who not include homosexuals, Jairam stated the law confers broader powers and the subsection merely qualifies entry conditions for those two classes.

Justice Nelson expressed concern over whether a policy was sufficient protection of the rights guaranteed to nationals of CARICOM countries, asking rhetorically, “what happens when government changes?” He also asked Jairam non rhetorically whether the court should strike out the allegedly offending sections since they weren’t enforced. Jairam responded, to the bemusement of many in the court, that the court should not strike out the sections because that might allow terrorists to enter the country. In back and forth questioning with the justices, he conceded that both the Belize and Trinidad and Tobago laws were likely enacted “when people were  homophobic”, and that has changed.

The Justices asked all parties whether there was case law on the homosexual provisions of the immigration laws, but none had any to offer. Both states argued that their statutes on freedom of movement for skilled nationals allow their entry notwithstanding other laws, such as the homosexual prohibition, and Tomlinson as a lawyer could have availed himself of such a provision for entry. But the Court was clear that the case was not about entry of a skilled national and that such entry was in the specific context of employment and skill certification. This prompted a series of questions as to whether a prostitute could enter to deliver a lecture instead of to acquire earnings through his/her trade.

Both Belize and Trinidad and Tobago argue that Tomlinson’s rights have not been breached as he has not been denied entry and that is the Treaty has therefore not been engaged. Gifford  responded to the State’s arguments by reiterating that a policy was just a policy and was subject to change with any given government. He also reiterated that the mere existence of the laws, whether they were enforced or not, was sufficient to restrict a person’s rights. It’s like putting up a sign that says “No homosexuals”, regardless to what your actual practice is.

Brother pleads with UK Government to halt lesbian sister’s deportation …………..

According to the voice in the UK a Jamaican woman is to face deportation but she is a member of the same gender loving community women seem to have had issues in gaining asylum overall although we cannot judge so easily as each case has to be taken on its own merit but seeing that men who have sex with men are more vulnerable to homophobic violence in Jamaica they have far more cases pending, successful and deportations than the women do.

However as I have tried to point out before there has been a sharp increase in lesbophobic violence to include the previously thought African phenomenon of corrective rape, forced evictions and displacements.

Have a read of the item from the Voice first excerpted below:

‘My Sister Will Be Killed If She Is Sent Back To Jamaica’

A WEST YORKSHIRE man says his lesbian sister will be killed if she is sent back to Jamaica and is urging immigration officials to reconsider a decision to deport her.

Home

Nestfield Lopez, 24, from Leeds, told The Voice that homophobia in the Caribbean country is rife and claims that his sibling will be targeted because of her sexuality.

He said: ”We all know what Jamaicans think of gays.”

“We’ve got terrorists here that are making suicide bombs. They’ve been in prison, they come out and they can’t deport them because of human rights. What about her human rights? That’s the frustrating thing about it,” he continued.

His sister, 22-year-old, Coletane Lopez, was detained by the UK Border Agency on March 20 after her human rights application was denied.

Acting on legal advice, she had gone to Lunar House in Croydon, Surrey, where immigration claims are processed, to seek asylum for protection, but was handcuffed and transferred to Yarl’s Wood Detention Centre in Bedfordshire, where she is currently awaiting deportation.

Mr Lopez, who was unaware that his sister was gay until last December, has begun a petition to stop the process but claims her health is deteriorating day by day.

“We had a visit with her and she’s lost loads of weight. She hasn’t been eating.

She’s been worried. At one point she wanted to commit suicide. She said I’m going to kill myself because if I get sent home, I’m going to get killed anyway.”

Her deportation has been placed in the fast track system, which means she can be removed from the country within four to seven days of her case being decided.

The siblings first came to the UK with their family in 2000. Last year their parents were removed and sent back to Jamaica, but Mr Lopez, who is married with two young children, has been granted the right to remain because his partner is a British national.

Mr Lopez says that his sister will have nowhere to go if she is returned to Jamaica because even his parents refuse to accept his sister because of her sexuality.

He said: “Every time I speak to my dad, we have an argument. He says, ‘have you not thrown her out yet? Don’t give her any money and don’t look after her. You should choke her and kill her’. That’s what he’s saying to me. I’m like, ‘that’s your daughter!’ But he says, ‘Oh no. I don’t have no daughter anymore. That’s what I have to deal with!”

The Voice contacted the UK Border Agency for their response. A spokesperson said: “We do not routinely comment on individual cases.”

ENDS

In continuing on the issue of displacements for SGL women due to lesbophobia women by virtue of being more social creatures in the Jamaican context easily find informal hosting services within the community or with family members as some cases have shown as lesbianism is tolerated locally than male homosexuality. Sadly in this case as excerpted above shows there maybe a serious cause for concerns and as I said above each case has to be taken on its own merit but we must also remember the reputation Jamaica on a whole has in places like the United Kingdom where we have flouted rules, committed crimes and so on.

Our cases are treated with far more scrutiny based on my limited experience with the border agency in times gone by but how do we assist persons who legitimately need to leave the island due to threats against their person?

We have seen successful cases on the other hand such as a sister who was bipolar some years ago who was brutally raped several times over by thugs (including a cousin allegedly) in her inner city community with what seemed to be tacit support from other thugs in the area at the time, she was successful however in gaining asylum in the UK in 2010, another sister who was threatened with arson of her flat in another area due to her butch mystique as it were as she wore masculine clothes and was clearly a gender non conformist given the scheme of things.

And as for advocacy for same gender loving women in Jamaica well that is much to be desired with groups such as JFLAG and a smaller outfit known as Women for Women (WFW) but since male homosexuality and the attendant issues are engaged far more with a view to repealing the buggery law which is understandable women’s issues get glossed over even in the face of the aforementioned increases in violence and stigma to sgl women especially the members or self identified butches who are seen as a threat to men in Jamaica as they are accused of taking away women from over machismo worshipping men.

We hope there is a follow up on this story so we can know the outcome of this case and how the sister is fearing out.

Additional reading from a previous post on sister blog GLBTQJA on Blogger:
Jamaica lesbians suffer from under-reported violence but whose fault is that ???

here are two pieces of audio commentary I had done in 2011 also expressing concerns about the inequality in the handling of same gender loving women’s issues versus msms and the murder of two lesbians late last year as well:

Lesbian issues left out of the Jamaican advocacy thrust until now? 

plus

2 SGL WOMEN LOST, CORRECTIVE RAPE & VIRTUAL SILENCE FROM THE MALE DOMINATED ADVOCACY STRUCTURE

Peace and tolerance

H

2009, the year that was

2009 is easily one of the most active years in our recent lgbt history, we saw many new developments mostly negative on our scene and an unprecedented public education campaign as it were by the media in both print and audio/visual formats on gay issues thus giving us very high visibility. Homophobic as well as gay on gay violence increased dramatically than previous years and deaths due to both also saw a shocking corresponding increase as well. Most of the more prominent cases that have come to light are still under investigation and as feared may never get solved despite the prominence of some of the victims involved, such is the nature of our police and justice investigatory arms.

The lesbian community specifically saw a continued onslaught of homophobic incidents with the so described and disturbing “Corrective Rape” cases continuing from 2008. We saw allegedly 5 cases in 2008 and a further 4 for 2009 with one couple who had relocated from another parish to restart their lives due to a previous homophobic attack of a different nature falling victims to this awful scourge.

Homophobic and related incidents
Gay persons murdered in 2009 rose to 7 from 4 in 2008 according to my information here with of course the three more prominent cases being that of British Ambassador Mr. John Terry, the founder of the adult entertainment website Rudejam who was found dead in his apartment in December 2009 with several stab wounds and the operator of Café Aubegine who was found with his throat slashed at his Mona address. Arrests have been made by the Police on the first and third cases aforementioned that of Mr. John Terry but the case stalled late in 2009 and should recommence in 2010. The alleged male tenant of the home of the restaurateur was arrested after evidence pointed to him having blood from the deceased on his hands, in his defense he has said he tried to stop the bleeding of the victim after hearing cries for help and arriving in the bedroom to find him on the floor with his throat slashed open, he used his hands to try to slow down the hemorrhaging.
The general public’s belief that the violence meted to gays are done by other gay persons has left an air of sinicism about the cases mentioned above so the interest in having them solved has waned greatly and they are overlooked in a sense by the relevant authorities or the pace has dramatically slowed as other societal issues take precedence.

Community based violence also increased in my estimation just by the reports with the two most prominent being the house attack in South Central Jamaica where a lovers quarrel ended up with a mob called in by one of the persons involved alleging that the other was gay and leaving the victim with bruises all over and the loss of personal items. The other very public gouging of the eye incident that has been followed closely by the mainstream media especially the Jamaica Observer, the accused has since been bailed and the trial continues despite the victim’s call the drop the charges and discontinuing the case which could not be done as the presiding judge explained that seeing a police report was filed and things set in motion that could not be undone. Other small skirmishes occurred but were not of major significance and the entertainment scene saw a leveling off of fights and incidents much to the delight of party goers.

Interventions/agitation
Social support and other similar activities from the sole formal GLTBQ organization JFLAG waned significantly, the usual press release followed major incidents and commentary in the respective print media however many persons specifically the homeless MSM problem which came to a head in 2008 – 9 left an ugly scar on the landscape with controversy surrounding the snap resignation of the Jamaica AIDS Support for Life’s Executive Director due to a housing project meltdown and the decision by the NGO’s board to discontinue the activities with this group which included a safe house of sorts operated on the property. (See post following this) It is not yet clear as to JFLAG’s position on this issue as they have been mum as expected on the matter.
There seems to be a fear that issues must be kept secret from the rest of the community on general matters of interest. The ED of JASL at the time of this post was said to be travelling and could not be reached for comment. The homeless MSM saga became a sticky issue due to the lack of funds as said by JFLAG to adequately address the persons who fall in this category, it was the ED’s involvement in this matter that saw an upturn in the HIV/AIDS, behavior change intervention within the community and the impact was felt island wide however many are doubtful now and upset at the turn of events with mistrust re-emerging in as far as accessing testing/treatment services. This sensitive matter is being watched closely by ordinary gays on the ground as well as others in international circles including funders and concerned Jamaicans living abroad. Questions are being raised as to why it took JASL to do that kind of activity and not JFLAG fully?

Jamaican dancehall artists came under intense pressure and scrutiny from overseas GLBTQ groups specifically in the EU and the United States with emphasis under the Stop Murder Music campaign and similar typed activism. Many artists were blocked from entering countries and cities like Canada, The US (San Francisco, Miami, Los Angeles), Luxemburg, Grenada, Barbados, Trinidad, and Copenhagen to name a few. Mr. Mark Myrie aka Buju Banton of course made headlines from as early as June 2008 when his CD launch and subsequent tour dates were announced. He faced protests and a hazing incident at one of his concerts in Los Angeles over his lyrics in the song “Boom Bye Bye” (Inna Battyboi head) that advocated death by shooting etc on gay men. He eventually met with a group in San Francisco to work out a supposed compromise which turned out to be a public relations stunt to avoid further cancellations of his tour dates in the US which was bleeding millions of dollars. The lack of support from other dancehall acts openly was telling as it seems many were afraid of the impact it may have had on their careers and earnings from tours and CD sales if a backlash should occur.

The lack of support from the Jamaican GLTBQ community was also telling as the cancel Buju Banton website formed by a key player in the campaign has brought to bear that very few Jamaicans registered to be a part of the agitation from our supporters up north.

His subsequent arrest by the Drug Enforcement Agency (DEA) in December on alleged cocaine trafficking charges in Florida was linked by some as a “set up” by the powerful gay lobby who are using the issue to destroy his career. As it has now turned out both issues are unrelated and public support which was strong for him at first has down died down tremendously. JFLAG had tried to diffuse the rumour mill by publishing a letter to the Jamaica Observer and radio interviews on same.

Asylum seekers and professionals left in greater numbers in 2009 that probably any other time in our recent history as persons were distraught by the conditions they had to endure from bias to fear of violence in their communities. Others left because of economic reasons to pursue better opportunities in work and study. JFLAG and Women for Women lost its Co-chair and Chair respectively (one individual) in this grouping as well. Many took the opportunity to use the favourable asylum policies of some EU states in as far as homophobic threat was concerned and have been assimilating in the respective countries. It is hoped that links can be forged with those abroad to better agitate for rights based issues here at home and their financial support would be indeed welcomed. In trying to track the numbers it is estimated that more than 23 persons have taken the move some reluctantly as the possibility of return is not anytime soon, it is not yet known if JFLAG has a head count for this year or if they have been tracking it closely as some persons access them for information of the procedures necessary.

Legal Issues
As it relates to law we saw the passing of the revised Sexual Offences Bill with the deliberate exclusion of gender and sexual orientation discrimination clauses removed after vigorous debate and lobby from the anti gay establishment chief among them Lawyers Christian Fellowship/Council led by chief homophobe Atty-at-Law Ms Shirley Richards.
There were no submissions from the gay lobby during this crucial debate along with the Charter of Rights roster as well. The government capitulated to this move by the group in a bid to sure up political mileage and pushed the well timed “No to Gay Marriage” smoke screen launched by Prime Minister Golding just before the US President Obama signed their version of the Act to make it a federal offence for crimes against persons due to sexual orientation and gender discrimination playing with public sentiments on homosexuality in general. The gay community in Jamaica never asked for gay marriage rights during the Charter’s or SOB debates. It seemed to have worked as we have been overlooked in both pieces of legislation.

The Charter of Rights in the meantime was passed in the upper house and has been sent back to the lower house for ratification within some days time (normally 60 days or so) it should be debated there again possibly gazzetted and sent back to the upper house for final passage. Sadly very little was done in the community to sensitize persons on the importance of such a Charter and the possible implications it may have on the Buggery Act and specifically male homosexual sex in general. The government is intent it seems on a theocracy becoming moral dictators for private citizens’ decisions.

Media landscape
Nearly all mediums of media had a thing or two to say or publish in 2009 on GLBTQ issues but in fairness most of the publications were fair and some even went as far as to examine Jamaica’s homophobic problem, strong articles by commentators such as Ian Boyne, John Maxwell and Martin Henry were crucial in that examination.
The juxtaposing of religion, sexuality and gender issues were refreshingly good to see coming from the aforementioned as prior t recent times their writings were somewhat of a biased nature. What was clearly lacking was the standpoint of the gay community on a whole and this is where JFLAG has been faulted for not adequately having a pubic presence except for the occasional letter to the editor and second hand reporting by journalists on conversations held with persons within the group, they came for heavy criticism yet again by the community for the poor editorial condition of their website and seeming lack of engagement with the GLBTQ community. Although there were negative letters, articles and editorials as well in some print media and gossip tabloids (notably the Xnews and Observer Chat) the strong articles helped to bring balance to the scene and the editors of the respective papers and news rooms clearly are realizing that people can’t be led anymore and that the issues are being looked at with more scrutiny. There is still more interest that needs to come from the gay community.

JLFAG presence on radio was light in 2009 in discussing issues such as the Buju Banton arrest in December, the John Terry murder case and the San Francisco protest of Buju Banton’s album tour.

One ugly media moment was the now infamous Raggashanti interview of an alleged drag queen who was arrested by Police in Central Jamaica after herself and a man were caught in a compromising position in a car in a public place. The police soon realized he was a cross dresser and the story made headlines. The Observer Chat carried a full photo of the assumed cross dresser and insinuated that the members of the Police were allegedly courting her for sexual favours. The exchange was irritating for some and many were very upset at the Chat’s article which named JFLAG in an alleged telephone interview saying that she was OK and never suffered any harm following the media’s interest in the story and the television footage. The mother paper to the Chat, The Jamaica Observer was however irresponsible in it’s handling of this story and published full face photos of the cross dresser.
Transgenderism was highlighted in a piece in the Jamaica Observer and its impact from dancehall culture, media in general has been slowly playing catch up on this issue as the public’s understanding and that of the gay community’s tolerance is still far behind.

Outlook and possible hot beds for 2010
All in all 2010 is already a dramatic year generally for our nation with the present economic woes facing us and the fledgling IMF deal the administration is trying to pin down with a letter of intent. The john Terry, Rudejam Founder and Restaurateur murders are to be watched closely this year as the respective trials and investigations proceed.
The Homeless MSM situation at Jamaica AIDS Support for Life and its outcome are also of concern. It is hoped that there will be some compromise reached between the Board and the Executive Director who has tendered her resignation or maybe a new organization formed to deal with the issue of these men who clearly need all the support possible at this time. She is known to have powerful connections to funders having herself worked with major agencies in her tenure elsewhere, details of these possible new initiatives are being held close to the chests of those involved but if it comes to fruition let us hope that it may serve the men in the group for their development.
The intervention strategies by JFLAG, The Ministry of Health in as far as HIV/AIDS and social support are to be watched too as some funding should be available for this year for them.
Transgender interventions and initiatives are expected and more informative activities such as workshops and seminars are urgently required to bring into focus the widely misunderstood group.

If anything was left out let me know please and thanks.

Here is wishing you all a HAPPY NEW YEAR and thanks for your continued support, comments and suggestions. Please keep on supporting this blog and other similar typed initiatives.

Peace & Tolerance
H

US Congress returns to equal immigration rights for same-sex couples

A 2007 bill that would offer binational same-sex relationships the same recognition and treatment afforded to binational married couples will come back before the US House of Representatives on Thursday.

New York Congressman Jerrold Nadler is to reintroduce his Uniting American Families Act (UAFA).

It was co-sponsored by 118 of the 435 members of the House in its first introduction in May 2007.

The proposed law would allow gay, lesbian and bisexual US citizens or permanent residents to sponsor their permanent partner for immigration to the country, just as they can now sponsor such family members as siblings, children or husbands and wives.

At present US citizens with foreign lesbian or gay partners find that their relationship is considered non-existent under federal law.

The Defence of Marriage Act, passed in 1996, declared that for all purposes of the federal government, marriage would mean “only a legal union between one man and one woman as husband and wife.”

Since lesbian and gay couples are excluded from the definition of “spouse,” US citizens receive no legal recognition of their same-sex partners for purposes of immigration.

The 2000 US Census estimated that in the United States there were almost 40,000 lesbian and gay couples in which one partner is a US citizen (or permanent resident), and the other a foreign national.

This figure does not include the thousands of binational couples who hide the fact they are partners, are forced to live apart, or who have been forced to leave the United States.

Advocacy group Immigration Equality told Metro Weekly:

“The Obama administration has been supportive.

“He did not co-sponsor the bill in the Senate, but he was very clear in the campaign that he supports the goals of this legislation.”

US accused of not overturning ban on HIV+ visitors

A New York-based LGBT immigration pressure group has accused the US government of failing to follow a new policy on HIV+ people visiting the country.
In July President Bush signed the President’s Emergency Plan for AIDS Relief (PEPFAR) Act, which lifts the ban on HIV positive people from entering the United States. The bulk of the legislation aims to fight AIDS in the developing world.
At present any foreign national who tests positive for HIV is “inadmissible,” meaning he or she is barred from permanent residence and even short-term travel in the United States.
Yesterday the Department of Homeland Security (DHS) announced that it will issue regulations which purport to “streamline” the waiver application process for HIV-positive short-term visitors.
“The timing of these regulations is deeply troubling,” said Victoria Neilson, Legal Director of Immigration Equality.
“In July, Congress issued a bipartisan message to this Administration – remove HIV as a barrier to travel and immigration.
“Instead of simply ending the HIV travel ban, the administration is again treating HIV differently from any other medical condition.”
Congresswoman Barbara Lee, who led the repeal effort in the House of Representatives, said:
“I am disappointed that the Administration has decided to move ahead and finalise this rule to clarify the visa waiver process for HIV positive short term visitors to the United States.
“The rule itself remains fundamentally flawed because it is grounded on an unjust and discriminatory policy that has no basis in public health.”
Immigration Equality said that under the new rules a short-term traveller must meet twelve stringent criteria “that impose unnecessary burdens on HIV+ travellers and continue to stigmatise those living with HIV. Some criteria are inconsistent with current medical knowledge of HIV transmission and treatment.”
Visitors who take up the waiver do not have the right to apply for a green card from within the United States – even if he or she marries a U.S. citizen.
Department of State consular officers will make decisions on waivers without sending them to DHS for approval.
“We are on the eve of lifting this ban once and for all. Why is the Administration setting new waiver requirements in stone now?” said Ms Neilson.
“The time has come for this Administration to finish the job that Congress started this summer. It’s time to lift the HIV ban.”
The ban originates from 1987, when fear about the spread of the disease led US officials to require anyone with HIV to declare their status and apply for a special visa.

Gay civil rights group urges President Bush to overturn HIV+ ban

An American group that defends the civil rights of LGBT people and those living with HIV has urged President George W Bush to end the ban on visitors and immigrants who are HIV+.
Earlier this month the United States Senate approved a new bill that includes clauses that will end the ban.
Senators authorised $50 billon (£25bn) for PEPFAR, the President’s Emergency Plan for AIDS Relief, by 80 votes to 16.
Republican Senator Gordon Smith and Democratic Senator Kerry attached an amendment to a bill repealing current US immigration law.
At present any foreign national who tests positive for HIV is “inadmissible,” meaning he or she is barred from permanent residence and even short-term travel in the United States.
There are waivers available, but obtaining them has always been difficult.
The ban originates from 1987, when fear about the spread of the disease led US officials to require anyone with HIV to declare their status and apply for a special visa.
At present the law requires the US Department of Health and Human Services (HHS) to include infection with HIV (the only disease or condition specified in the statute) on the list of diseases that serve as a basis for inadmissibility.
Lambda Legal use impact litigation, education and public policy work to push for gay equality for LGBT people and those living with HIV.
Executive director Kevin Cathcart said in a letter to President Bush:
“By including this provision in the bill, Congress has finally recognised that the entry bar against individuals living with HIV is an unjustifiable infringement of basic human rights, not in keeping with the traditions of this country, the principles on which it was founded or the role we want to play in the global fight against HIV and AIDS.
“The power now rests with you and your administration to complete the process of dismantling this ill-advised, unfair and anachronistic policy.
“Lambda Legal urges you to sign this bill into law.
“Moreover, we urge you to immediately direct the Secretary of the Department of Health and Human Services (HHS) to begin the process of removing HIV from the list of diseases that serve as grounds for inadmissibility.
“Not only is this the medically and scientifically correct thing to do, it is the right thing to do.”
It is unclear if President Bush’s administration will take action or allow the new President’s team to make the changes when they take office in January.
Section 305 of the PEPFAR reauthorisation bill repeals the statutory language requiring HHS to include HIV on the list of diseases that make a person inadmissible to the US, thus returning to HHS the authority to make a determination based on medical knowledge and public health principles.
“The ban makes absolutely no sense given what we know about HIV,” said Scott Schoettes, HIV staff attorney at Lambda Legal.
“The dismantling of this blatantly discriminatory policy is long overdue.”

US Senate votes to remove ban on HIV+ travellers

By Tony Grew • July 18, 2008
The United States Senate has approved a new bill that includes clauses that will end the effective ban on HIV+ people visiting the country.
Senators authorised $50 billon (£25bn) for PEPFAR, the President’s Emergency Plan for AIDS Relief, by 80 votes to 16.
The bulk of the money is for HIV prevention and AIDS treatment, but there are substantial sums to fight TB and malaria. Countries in Africa and the Carribean will benefit.
Republican Senator Gordon Smith and Democratic Senator Kerry attached an amendment to a bill repealing current US immigration law.
At present any foreign national who tests positive for HIV is “inadmissible,” meaning he is barred from permanent residence and even short-term travel in the United States.
There are waivers available to this rule, but obtaining them has always been difficult.
The ban originates from 1987, when fear about the spread of the disease led US officials to require anyone with HIV to declare their status and apply for a special visa. It became law in 1993.
As a result of the Senate vote the US Secretary of the Department of Health and Human Services can now lift the HIV ban.
It is unclear if President Bush’s administration will take action or allow the new President’s team to make the changes when they take office in January.
Changes to for PEPFAR will need to be discussed with the House of Representatives as they approved the legislation earlier this year.
The current PEPFAR programme has disbursed $15bn (£7.68bn) over five years and is to end in September.
“We applaud the Senate for rejecting this unjust and sweeping policy that deems HIV+ individuals inadmissible to the United States,” said Joe Solmonese, president of Human Rights Campaign.
“Congress has finally moved to end the HIV ban, a ban based on myth and misinformation,” said Rachel Tiven, executive director of Immigration Equality.
“For 20 years, the United States has barred HIV-positive travellers from entering the country even for one day.”
The United States is one of 13 countries in the world, including Iraq, Saudi Arabia, and Sudan, that bans entry to individuals who are HIV-positive.
Last month the European Commissioner for Justice raised the ban with Michael Chertoff, US Secretary of Homeland Security.
Jacques Barrot asked for “information on the reasons why individuals carrying HIV are excluded from using the US Visa Waiver Programme.”
MEPs have kept pressure on the Commission over the issue as the EU is in negotiations with the US authorities to secure visa-free travel (a visa waiver) for EU citizens from all 27 member states.
In May the European Parliament passed a resolution demanding the ongoing negotiations include the exclusion of Europeans with HIV from the visa waiver programme, and ensure equal treatment of all EU citizens.
The Commission says there are no objective reasons for a travel ban for HIV infected persons.
Earlier this year the Joint United Nations Programme on HIV and AIDS (UNAIDS) stated:
“There is no need to single out HIV for specific consideration as an exclusion criterion.”
UN chief Ban Ki Moon has called for an end to discrimination against people with AIDS, including travel restrictions imposed on them by some countries.
“I call for a change in laws that uphold stigma and discrimination, including restrictions on travel for people living with HIV,” he said last month at the opening of a two-day, high-level meeting in the General Assembly on UN targets, set in 2001 to roll back the disease worldwide.
“Halting and reversing the spread of AIDS is not only a goal in itself, it is a prerequisite for reaching almost all the others (poverty-reduction Millenium Development Goals by 2015),” he added.
He said that 60 years after the Universal Declaration of Human Rights was adopted, “it is shocking that there should still be discrimination against those at high risk, such as men who have sex with men, or stigma attached to individuals living with HIV.”
According to UNAIDS, the global standard-bearer in the fight against HIV, 74 countries are subjecting HIV carriers to restrictive measures, including a mention of the disease on their passports.

AIDS conference to demand action not words over human rights

July 16, 2008 – 13:28
The host country of an AIDS conference has been criticised for falling short on commitments made to address HIV-related human rights abuses.
17th International AIDS Conference will be held in Mexico in early August.
The Mexican government has been accused of failing to implement promises to address HIV-related human rights abuses.
“Mexico has good laws on HIV/AIDS,” said Anuar Luna Cadena of the Mexican Network of People Living with HIV/AIDS.
“But government institutions don’t adequately monitor abuses faced by people living with HIV or make sure they get the treatment and the protection they’re legally entitled to.”
The conference is appropriately titled ‘Universal Action Now’ as 400 AIDS and human rights organisations called on governments across the globe to end the human rights abuses fuelling the spread of HIV and AIDS, stating little progress can be done without taking action.
“Ahead of the 17th International AIDS Conference, governments are still violating the rights of people living with or at high risk of HIV infection,” said José Miguel Vivanco, Americas Director at Human Rights Watch.
“Governments have done little to fulfil their frequent promises to end HIV-related rights abuses.
“But until they act to end such abuses, even the best-planned policies to treat HIV and stop the spread of AIDS will fail.”
In Africa, nearly one-third of all new HIV infections occur among injecting drug users but prevention measures, such as needle-exchange programmes and medication-assisted treatment with methadone, are banned by law in many countries.
“It is a tragic irony that those at highest risk of HIV often receive the least attention,” said Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network.
“In many countries, drug users are the majority of people living with HIV, but the smallest group receiving antiretroviral treatment. When they’re arrested, they’re even less likely to receive the HIV prevention and treatment services they need.”
HIV and AIDS services for sex workers and gay men are also targeted by abusive police forces.
They confiscate condoms from outreach workers and extort bribes, confessions, testimony, and sexual “favours” from sex workers.
Meanwhile, in Africa, laws that deny women equal access to divorce, property, and inheritance increase vulnerability to infection and hinder access to treatment.
Domestic violence or rape by a partner is not seen as a crime thus women are more at risk from infection.
“African governments rush to ratify international conventions, but drag their feet when it comes to ensuring human rights protections for women,” said Michaela Clayton, director of AIDS and Rights Alliance for Southern Africa.
“Legislation protecting women’s rights has languished in African parliaments for years. Protecting women from violence and securing equal rights to property are critical steps to stemming the AIDS epidemic.”
The 2008 AIDS fact sheet states that Universal Action Now is “an important reminder that the HIV/AIDS epidemic does not exist in a vacuum.
“Strengthening health systems in developing countries and addressing underlying social injustices that contribute to HIV risk and vulnerability – such as poverty, gender inequality and homophobia – are essential strategies in the global response to HIV.
“For those not yet engaged in the struggle, Universal Action Now is an invitation to get involved and make a difference.”
“There is no shortage of rhetoric about the importance of human rights in responding to HIV,” said Vivanco.
“This conference is the time to turn words into action.”