LEGAL & FAMILY PLANNING

Bermuda’s Human Rights Act prevents discrimination in the areas of housing, employment and the provision of goods and services.  A watershed development occurred in 2013, when Bermuda’s Human Rights Act was amended to add protection from discrimination on the basis of “sexual orientation” and separately on the basis of “family status”.  The new categories of protection have been used by Bermuda’s Supreme Court on two separate occasions to the benefit of Bermuda’s LGBTQ community, first in relation to [>> Same Sex Parenting & Adoption] and then in relation to [>> Same Sex Couples and Immigration].

Although the 2013 amendments to the Human Rights Act were a welcome development, they highlighted some lingering deficiencies with Bermuda’s anti-discrimination laws.  Crucially, the protections afforded are not absolute, but instead are limited if a number of criteria are satisfied by a person seeking to treat another less favourably on the basis of a protected characteristic.  This is evident in relation to housing, where landlords are permitted to discriminate against a prospective tenant if they will both reside at the same address.

Incidents of discrimination can be reported to the Human Rights Commission [insert link] for investigation.  The Human Rights Commission is tasked with not only investigating breaches of the Act, but also with fostering an understanding of the rights and responsibilities guaranteed by the Human Rights Act, and promoting fundamental rights and freedoms generally.  Where a complaint is made to the Commission it can assist the parties to resolve it through conciliation, failing which the complaint may be referred to the Human Rights Tribunal for trial.

Shortly after the Supreme Court’s decision in A & B, a group of gay and lesbian Bermudians sued the Minister of Home Affairs and the Attorney General to secure immigration protections of their non-Bermudian partners.  Given the personal circumstances of each member of the group differed, a  company was formed, called the Bermuda Bred Company (on account of the company’s founders seeking the extension of rights supposedly guaranteed to everyone ‘born and bred’ in Bermuda), for purposes of bringing a representative law suit.

In Bermuda Bred Company v The Minister of Home Affairs and the Attorney General[2] the Supreme Court granted non-Bermudian same-sex partners of Bermudians the same rights to live and work in Bermuda (outside immigration control) as are enjoyed by the non-Bermudian spouses of Bermudians in mixed-sex marriages.

In February 2015 the Supreme Court made its landmark judgment in A & B v Director of Child & Family Services and the Attorney General[1], ruling that a mixed nationality gay couple (one of the pair was Bermudian and the other non-Bermuda and at the time subject to immigration controls) were entitled to adopt a child as a couple.  The decision acknowledges that the discrimination previously faced by prospective gay and lesbian adoptive parents was incompatible with modern human rights standards which apply on the Island.

The judgment is also significant because its effect extends beyond gay and lesbian couples, and also benefits mixed-sex couples seeking to adopt who, for whatever reason, are unmarried.  Prior to the decision only married couples were permitted to apply for adoption.  The judge found this was discriminatory as it treated unmarried couples, regardless of sexuality, less favourably on the basis of their “family status”.

Gay and lesbian couples in Bermuda are now able to adopt children.