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Bermuda just banned same-sex marriage

Toronto gay couple who won the right to marriage in the island say this isn’t the end of the fight

Winston Godwin (left) and Greg DeRoche (right), a Bermudian-Canadian couple, challenged the Supreme Court in July 2016 and won the right to marry on the island in May 2017, before the new legislation repealed same-sex marriage. Credit: Courtesy Winston Godwin

Same-sex marriage is once again banned in Bermuda, a British island territory, making it one of the few jurisdictions in the world to repeal equal marriage after it was already enacted.

The island’s UK-appointed governor ended weeks of speculation and signed the Domestic Partnership Act (DPA) into law on Feb 7, 2018, which undid a Supreme Court ruling from May 2017 that made same-sex marriage legal.

The legislation also creates a new legal status of “domestic partnership” that same-sex couples can enter into, which would confer most of the legal rights of marriage. Though same-sex Bermudian couples who were married during the short period when equal marriage was recognized will stay married, the bill has caused confusion and stress for LGBT couples in Bermuda and abroad.

On Feb 14, Bermudian equal marriage activist and LGBT ally Tony Brannon announced on Twitter that activists will shortly file a legal challenge of the DPA at the Bermuda Supreme Court. Details of the challenge are not yet known.

Winston Godwin and Greg DeRoche, the Bermudian-Canadian couple living in Toronto whose Supreme Court challenge won same-sex marriage rights in the island, released a statement on Facebook after the DPA became law, where they expressed disappointment in the government for bowing to public pressure to strip away the rights of queer Bermudians.

“We . . . hope that [the Domestic Partnership Act] can be used to continue the momentum,” the Facebook post says. “As we all know, equality doesn’t happen overnight, it takes time, it takes brave individuals to stand up for what’s right regardless of what society says. Today is far from a loss and we can’t stop here.”

The island’s LGBT group OUTBermuda released a statement acknowledging the progress the territory has made on LGBT rights in recent years, and pledging to continue the fight.

“We believe lasting change on the issue of marriage equality requires us to work within the broader community to change hearts and minds, to reverse the perception that marriage equality is somehow detrimental to our Island,” the statement reads. “This can and will be done.”

Many leading tourism authorities and businesses urged the government to withhold the bill, fearing a negative effect on tourism.

Already, cruise companies Princess, P&O and Cunard, whose ships are registered in Bermuda, have had to cancel plans to offer same-sex weddings at sea.

Same-sex marriage had been a controversial topic on the island of 64,000 people for years. Referenda in 2016 rejected both same-sex marriage and civil unions by nearly two-third majorities, though the results were not legally binding.

After the Supreme Court found a right to same-sex marriage due to provisions for equal treatment under the territory’s human rights act, a newly-elected government vowed last year to pass legislation restricting marriage to heterosexual partners and creating a new civil status for gays.

Though the Domestic Partnership Act passed both chambers of the Bermuda parliament in December 2017 with wide majorities, the governor was initially non-committal about signing the bill into law. The situation prompted an emergency debate in the UK parliament in January, where opposition parties called on the government to deny assent to the bill.

Gay couples have differing legal rights in different parts of the United Kingdom and its territories. Within the UK, same-sex marriage is legal in England, Scotland and Wales, but not in Northern Ireland, where it is currently the subject of negotiation between sectarian parties. It is also legal in the Crown dependencies of Isle of Man and Guernsey, and soon to be legal in Alderney and Jersey, but not on the tiny island of Sark.

Among Britain’s 13 other overseas territories, same-sex marriage is legal in Akrotiri and Dhekelia, British Antarctic Territory, British Indian Ocean Territory, Falkland Islands, Gibraltar, Pitcairn Islands, South Georgia and the South Sandwich Islands, and St Helena, Ascension, and Tristan da Cunha.

While the Domestic Partnership Act is a setback for Bermuda’s LGBT community, it may provide a template to expand rights in the other UK territories that do not recognize any form of same-sex partnership: Anguilla, British Virgin Islands, Cayman Islands, Montserrat, and Turks and Caicos Islands.

The European Court of Human Rights has found that states party to the European Convention on Human Rights must offer some form of same-sex partnership, though not necessarily same-sex marriage. As a party to the convention, the UK’s obligations are also borne by its overseas territories. Bringing a form of Bermuda’s Domestic Partnership Act to these territories would likely satisfy that obligation while expanding LGBT rights incrementally.

The only other place in the world that has repealed same-sex marriage after it was brought into effect is California, which did so with the Prop 8 referendum in 2008. Maine and Slovenia also held referenda that blocked same-sex marriage laws from taking effect in 2009 and 2015 respectively.