LGBT Rights in Gibraltar

LGBT Rights In Gibraltar

In Gibraltar, the age of consent is 16 for heterosexuals and lesbians, while the age of consent for gay males was maintained at 18, while anal sex among heterosexuals was illegal under statute, until April 2011 when under Supreme Court order the law was found to be unconstitutional and so the age of consent was set at 16 for all sexual activity regardless of sexuality and/or gender. Gay male sexual conduct was decriminalised (but not heterosexual anal sex) in 1993, where the above conditions were defined.

The 2006 Constitution does not mention sexual orientation. The proposals, made public early March 2002, specifically omitted direct reference to "sexual orientation" as a category to be constitutionally protected. Other categories are clearly included.

Political campaigning prior to the 2007 Election was prominent with equality rights organisation Gib Gay Rights (GGR), headed by human rights campaigner Felix Alvarez openly challenging the incumbent Chief Minister, Peter Caruana for more rights in Gibraltar for gay and lesbian people, and others who are discriminated against.

There is presently an inequality between English law and that of the British overseas territories, particularly in relation to Gibraltar, which joined the European Union under the British accession and is bound by EU requirements.

Campaigning on the issue of an equal age of consent of 16 has been strongly undertaken.

The issues were raised at the Foreign Affairs Committee enquiry into the overseas territories in 2008, where they concluded:

We recommend that the Government should take steps to ensure that discrimination on the basis of sexual orientation or gender status is made illegal in all overseas territories.

On 18 May 2009, the Gibraltar Parliament approved by Government majority leave for a Private member's bill, proposed by the Minister for Justice, to equalise the age of consent. This was opposed by the GSLP/Liberal opposition for technical reasons due to the way the Bill was written. The Government gave its Members of Parliament a free vote on the Bill. It was defeated, as the Government members were split on its approval, and the opposition members all voted against it.

The influential Gibraltar Women's Association (GWA) has called for the age consent to be levelled at 18.

On 1 October 2009, new proposed legislation would enable the Government of Gibraltar to ask the Supreme Court to test whether existing or draft laws are compatible with the Constitution. This would provide a simplified, purpose-built mechanism to deal with contentious issues such as the age of consent.

In March 2010, the Government of Gibraltar was seeking an opinion from Court of the age of consent legal issue to see if the law is discrimination under the principles of the European Council.

On 1 April 2010, Secretary of State for Foreign and Commonwealth Affairs David Miliband pointed out that if a British overseas territory is unwilling to meet 'international obligations' such as equalising the age of consent it may be imposed by an Order in Council.

On 8 April 2011, the Supreme Court of Gibraltar ruled that a higher age of consent of 18 for all gay sex was deemed unconstitutional, and thus mandated an equal age of consent of 16. Also at the same time decriminalised heterosexual anal sex and set the age of consent at 16 for that as well.

In August 2011, the gender-neutral Crimes Act 2011 was approved, which sets an equal age of consent of 16 regardless of sexual orientation, and reflects the recent Supreme Court decision in statute or law.

The new Gibraltar Socialist Labour Party government elected in 2011, has recently announced plans to legislate for the legalisation of Civil Partnerships (on the same legal model as in the United Kingdom), to include sexual orientation under the goods and services anti-discrimination section (sexual orientation is already covered in anti-discrimination law under employment since 2005) and to include sexual orientation in hate crime legislation under the recent Crimes Act 2011 - all three are currently in the process of being drafted as a bill. The GSD opposition's position on the matter is as of late, unclear and a statement on the matter is currently pending.