Family Court of Australia clears the way for young trans people to access hormone treatment without court authorisation

Re Kelvin [2017] FamCA 78

The Full Family Court of Australia has held that Stage 2 hormone treatment for transgender young people does not require the court’s authorisation. Court intervention will remain necessary where there is controversy or disagreement between parents or between treating doctors and parents.

Until this case, it is understood that Australia was the only jurisdiction in the world to require transgender young people to seek court authorisation to access treatment. This has drawn criticism from doctors, parents and advocates for unnecessarily increasing mental health risks for transgender young people.

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Eritrean refugees one step closer to trial in a Canadian court case alleging serious human rights abuses

Araya v Nevsun Resources Ltd., 2017 BCCA 401

A group of Eritrean refugees are one step closer to trial in a Canadian court case alleging serious human rights abuses against a Canadian mining company, after the British Columbia Court of Appeal dismissed a strike-out application. The decision is the first time that a Canadian appellate court has allowed a tort claim for breaches of international law peremptory norms – such as the prohibition of slavery – to proceed.

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European Court of Human Rights rules Russia’s ‘gay propaganda laws’ are discriminatory and breach free speech

Bayev and Others v. Russia (application nos. 67667/09, 44092/12 and 56717/12) [2017] ECHR

On 20 June 2017, the European Court of Human Rights ruled that Russia's so-called "gay propaganda" laws breached Articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the European Convention of Human Rights. The challenge was brought by three Russian nationals who are gay rights activists and were fined for allegedly promoting homosexuality while demonstrating in public places.

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Australian High Court finds 5 parliamentarians incapable of being elected on the basis of foreign citizenships

Re Roberts [2017] HCA 39 (22 September 2017), Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 (27 October 2017) and Re Barrow [2017] HCA 47 (7 November 2017)

In three related decisions, the Australian High Court has for the first time ruled on several key aspects of section 44(i) of the Australian Constitution, relating to foreign citizenship for elected members of Parliament. The Court held that four Senators (Ludlam, Waters, Roberts and Nash), and one member of the House of Representatives (Joyce), were incapable of being elected to the Parliament because they were citizens of a foreign power.  The Court also held that two other Senators whose election had been referred to the Court (Canavan and Xenophon) were validly elected and capable of sitting in the Parliament.

It is expected that the election of a number of further members of Parliament may be referred to the Court shortly for consideration.

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European Court of Human Rights upholds the right to freedom of expression on the Internet

Tamiz v the United Kingdom (Application no. 3877/14) [2017] ECHR (12 October 2017)

The European Court of Human Rights has reinforced the importance of the freedom of expression in the European Convention on Human Rights in the context of online forums. The Court found that the English courts had conducted “an appropriate balancing exercise” when determining that ‘vulgar’ comments posted on a blog operated by Google Inc. did not pose enough of a risk to the applicant’s reputation (Article 8) to warrant restricting the freedom of expression of Google Inc. and its users (Article 10).

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German Constitutional Court requires positive recognition of people with intersex variations in the birth register

Bundesverfassungsgericht [German Constitutional Court], 1 BvR 2019/16, 10 October 2017

The German Federal Constitutional Court has ruled that the existing law dictating binary gender options in the birth registry is unconstitutional. The Court found that sections of the Civil Status Act that forced people to nominate as either "male", "female" or without a gender were a violation of the Basic Law for the Federal Republic of Germany, specifically the general right to personality and the protection against discrimination based on sex. 

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UK High Court rejects challenge to prohibition on assisted dying

R (on the application of Noel Conway) v The Secretary of State for Justice [2017] EWHC 2447 (Admin) (5 October 2017)

The UK High Court has rejected the latest legal challenge to the prohibition on assisted dying, holding that the prohibition represents a necessary and proportionate interference with the applicant’s right to private life. The Court placed reliance upon the fact that Parliament had repeatedly decided to leave the prohibition in place, providing a timely reminder of the crucial role of Parliament in promoting a person’s right to die with dignity in the context of the assisted dying laws currently being debated in Victorian Parliament.

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High Court of Australia finds marriage law postal survey is lawfully funded

Wilkie & Ors v The Commonwealth & Ors; Australian Marriage Equality Ltd & Anor v Minister for Finance & Anor [2017] HCA 40 (M105/M106 of 2017)

In M105/M106, the High Court dismissed two legal challenges to the Government's plan to carry out a voluntary postal survey on whether the law should be changed to allow same-sex couples to marry. The plaintiffs challenged the survey on the basis that it was not lawfully funded.

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High Court of Australia affirms narrower interpretation of “intention” to cause harm under complementary protection regime

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

The High Court has held that in order for an applicant to be covered by the Migration Act’s complementary protection regime, the element of “intention” requires a person’s actual, subjective intention to bring about pain, suffering or extreme humiliation. 

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