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If Bermuda re-bans same-sex marriage, it will make global, anti-gay history

The Daily Beast

December 12, 2017

Bermuda, one of the territory’s tourism websites gushes, is “a group of tiny islands in a turquoise sea… calling you… to an interlude of enchantment, an adventure with beauty… to a semi-tropical paradise where you’ll bronze in the sunlight and glory in the moonlight.”

The British overseas territory is also on the brink of becoming the first country in the world to re-ban same-sex marriage, in the same year that it was legalized.

Last Friday, MPs in Bermuda’s House of Assembly voted 24-10 in favor of the Bill to replace same-sex marriage with domestic partnerships.

Tomorrow, Wednesday, Bermuda’s Senate will vote on the Domestic Partnership Act (DPA), introduced by the ruling Progressive Labor Party (PLP), which won power in July’s general election.

Should the bill pass the Senate, the bill would have to receive royal assent from John Rankin, the governor of Bermuda, before it becomes law.

The Senate numbers 11 members: five from the PLP, three from the opposition party One Bermuda Alliance (OBA), and three independent senators in whose hands—along with Bermuda’s governor—the fate of same-sex marriage in Bermuda now lies.

In a letter to Senators sent on Tuesday, Kevin Dallas, CEO of the Bermuda Tourism Authority (BTA), urged them to vote no on the bill, claiming it would cause the island “serious reputational damage.”

Bermuda would also incur serious financial damage, Dallas said; the passage of North Carolina’s “bathroom bill” cost that state $3.76 billion in lost revenue, he added, as well as citing the negative financial impact on other U.S. states which had tried to introduce anti-LGBT legislation.

“We should send a message that Bermuda continually and permanently lives up to its well-earned reputation as a warm, friendly and welcoming destination,” Dallas wrote. “A no vote on the Domestic Partnerships Bill will make that message crystal clear to the world.”

Homosexuality was decriminalized relatively recently in Bermuda, in 1994. The age of consent for gay men remains unequal: 18, as opposed to 16 for heterosexuals. Marriage equality has been a vexed issue.

MP Trevor Moniz, the attorney general when the OBA was in power, told The Daily Beast that in 2016 his party formulated a Civil Unions Bill, modeled on the U.K.’s Civil Partnership Act, which predated full marriage equality in the U.K.

The OBA’s bill was never voted on because the party felt it did not have the support of the Bermuda Parliament, Moniz said.

In a subsequent referendum on same-sex marriage and same-sex civil unions, a majority of the public rejected both—although only 50 percent of eligible voters participated in the referendum.

The right to marry in Bermuda was enshrined in May 2017 when Bermudian Winston Godwin and his Canadian fiancé, Greg DeRoche, challenged the Registrar-General after their application to marry on the island was rejected.

The men took their case to the Supreme Court, arguing that the Human Rights Act had primacy in Bermuda—which has been self-governing since 1620—and protected their right to marry.

Ruling for the couple, Judge Charles-Etta Simmons said: “The common law definition of marriage, that marriage is the voluntary union for life of one man and one woman, and its reflection in the Marriage Act section 24 and the Matrimonial Clauses Act section 15 (c) are inconsistent with the provisions of the Human Rights Act as they constitute deliberate different treatment on the basis of sexual orientation.

“In so doing the common law discriminates against same-sex couples by excluding them from marriage and more broadly speaking the institution of marriage.

“On the facts of this case the applicants were discriminated against on the basis of their sexual orientation when the Registrar refused to process their notice of intended marriage.

“Same-sex couples denied access to marriage laws and entry into the institution of marriage have been denied what the Human Rights Commission terms a ‘basket of goods,’ that is rights of a spouse contained in numerous enactments of Parliament.

“The applicants are entitled to an Order of Mandamus compelling the Registrar to act in accordance with the requirements of the Marriage Act and a Declaration that same-sex couples are entitled to be married under the Marriage Act 1944.”

However, just two months after Judge Simmons’ ruling the PLP won the election, and is now determined to replace same-sex marriage with its campaign promise of the Domestic Partnership Act.

The Act recognizes same-sex marriages conducted in the transitional period between May 2017 and the present day, as well as same-sex marriages conducted overseas. Heterosexuals can also register for a domestic partnership.

In a statement sent to The Daily Beast, Walton Brown, Bermuda’s minister for home affairs, cited the anti-equality referendum result as he outlined how the ban on same-sex marriage and introduction of the Domestic Partnership Act would work.

LGBT couples married in Bermuda or overseas until the commencement of the Act would be known as “married.” After the Act is introduced they would be known as domestic partners. Domestic partners would have the same legal rights as married people, Walton said.

Bluntly, however, if the Act passes marriage equality itself will be revoked. LGBT people will not be able to get legally married in Bermuda. Walton did not return a Daily Beast request to answer specific questions arising from the government’s plan, around what that means for equality, and Bermuda’s standing internationally.

The three independent senators whose votes will decide Wednesday’s key vote are Joan E. Dillas-Wright, James S. Jardine, and Michelle Simmons. All three did not return The Daily Beast’s requests for comment.

Rankin, the governor of Bermuda appointed by the queen on the advice of the British prime minister, could refuse to sign the Domestic Partnership Act into law should the Senate pass the bill on Wednesday.

In an emailed statement—he did not respond to a set of Daily Beast questions—Rankin’s private secretary Tanya Davis wrote: “In considering this matter the Governor will continue to act in accordance with his responsibilities under the Constitution.”

Moniz said that if the three independent senators voted with the three OBA senators to defeat the bill, it could at least delay the legislation for a period of 12 months.

Of the plan to re-ban same-sex marriage, Moniz told The Daily Beast: “It’s definitely a retrograde action. When I did the Civil Unions Bill I said this is our ‘halfway house.’ At that time we had a Christian group that opposed any same-sex marriage and said, ‘If you allow any relationship recognized by law that will be a slippery slope.’ They opposed civil unions.”

The ‘halfway house’ idea was a compromise, given the conservatism of Bermuda, said Moniz.

“Back then I thought the Civil Union Bill was a good idea, but at this point in time when we now have marriage equality you’re walking backwards, and it’s really not acceptable. It looks very bad for us. We count ourselves as one of the forward-looking, progressive nations of the world. We would like to be counted among them when it comes to same-sex marriage.

“It’s not the image Bermuda wants to give to the world. We want to be welcoming as a financial and tourist center—all of these have a synergy that is not well-served by this action.”

MP Leah Scott, deputy leader of the OBA, told The Daily Beast that she was not a proponent of same-sex marriage, “but I’m also not a proponent of depriving anybody of their rights. As far as I’m concerned, the court ruled on the 5th of May that LGBT people could get married and I don’t see why anybody felt the need to interfere with that.

“It’s short-sighted. We’re not only affecting people who are LGBTQ, but it’s going to bleed out. They’ve got relatives. I know in my life there have been situations if somebody offended or upset a friend of mine, I would think, ‘I’m not going there.’ There’s going to be a trickle-down effect on Bermuda if this passes. It makes us look totally regressive. We had a court in Bermuda that ruled gay people could get married, and now you’re going to reverse that?”

Scott said she hoped the governor would intervene, especially given the global condemnation that might result from the re-banning of same-sex marriage on the island.

“We can’t hunker down and pretend this is not going to affect us, or care how the world will see us,” Scott said. “This is a major, major deal. While Bermuda is a conservative country, this is outside the bounds of conservatism. This is depriving someone, a group, of a human right. You can’t justify that.

“We are a sophisticated, international jurisdiction, and what people do in their private lives, who they sleep with, who they interact with, has nothing to do with me. Whether somebody is gay and married does not impact on my day-to-day life, and so I don’t see there was any need for this legislation to be passed at all.

“For the Progressive Labor Party—and pardon the word ‘progressive’ because they’re clearly not—to say they are for human rights and then carve out this human right—it’s absurd. It’s the principle. If you’re going to take this away, what else are you going to take away?”

In a statement sent to The Daily Beast, the LGBT group Rainbow Alliance of Bermuda (RAoB) said: “The Rainbow Alliance of Bermuda is disappointed the Government of Bermuda has taken the approach it has to remove marriage equality from the law.

“We are in agreement with the Human Rights Commission that the proposed legislation creates a ‘watered down’ version of rights, leading to a separate but equal status under the law. Ultimately, no separate but equal measure allows for equality or justice.”

Members of Bermuda’s LGBT community are entitled to the same rights and protections given to all citizens in Bermuda, RAoB added, “including having their loving, committed relationships recognized both locally and internationally.

“Bermuda should remain one of the jurisdictions around the world which has marriage equality. It is unfortunate the Government sees fit for Bermuda to become the first jurisdiction globally to have marriage equality rescinded. This is not the international reputation that our country should strive for.

“The RAoB is committed to the creation and promotion of safer spaces in Bermuda. Proposing legislation that allows for further division between the LGBTQ+ community and the Bermuda community at large does nothing to help move Bermuda forward to become a more just and equal society.”