Courts have played an integral part in advancing the rights of lesbian, gay, bisexual, and transgender (LGBT) communities in many parts of Asia. For example, Taiwan’s highest court ruled in 2017 that it was unconstitutional to exclude same-sex couples from marriage. As a result, in 2019, Taiwan became the first jurisdiction in Asia to legalize same-sex marriage. Among judicial decisions from Asia, Taiwan’s marriage ruling has gone the furthest in affirming same-sex relationships, but it is not alone in vindicating the rights of gay men, lesbians, and bisexuals. Courts in Asia have also advanced transgender rights. For example, building on earlier cases from Nepal and Pakistan, the Indian Supreme Court stated in 2014 that transgender persons have a right to select gender markers on identity documents based on self-determination. The judgment also directed the government to implement affirmative action programs to support transgender communities. This judgment broke new ground, not only for Asia but for the world.
While LGBT rights advocates have celebrated these court victories, litigation to advance LGBT rights has failed in other parts of Asia. Indeed, courts in some parts of Asia have entrenched LGBT subordination. A vast expanse separates Asia’s most progressive judicial decisions from the most oppressive. The landscape of judicial decisions is further complicated by the fact that it continues to change at a rapid clip. This chapter examines this mixed and quickly changing landscape of judicial developments concerning LGBT rights in Asia.
This chapter starts by providing an overview of the divergent roles that Asian courts have played with respect to LGBT rights. It then highlights — and offers preliminary answers to — three questions prompted by the judicial development of LGBT rights in Asia: (1) What factors have contributed to the divergence among Asian jurisdictions? (2) How should developments in Asia inform existing narratives about the development of LGBT rights? (3) How do politics and public opinion affect courts’ ability to advance LGBT rights in Asia?In Cottrell v Ross [2019] VCC 2142 the Victorian County Court has found that Section 25(2) of the Racial and Religious Tolerance Act 2001 (Vic), aka the RRT Act, is constitutionally valid.
At the Melbourne Magistrates’ Court on 5 September 2017, Blair Cottrell – the appellant - was convicted of a charge of knowingly engaging in conduct with the intention of inciting serious contempt for, or revulsion or severe ridicule of, another person or class of persons, namely Muslims, on the ground of their religious belief or activity, contrary to section 25(2) of the Act. Cottrell was convicted and fined $2000.
On appeal Cottrell acknowledged that he did participate in a mock execution knowing that it was being filmed and would be published on the internet. His case was that he did not participate in that mock-execution with the requisite intention under s s 25(2).
The Court comments "It is perhaps more accurate to characterise the appellant’s case that the respondent has failed to prove, beyond reasonable doubt, that he had the requisite intention".
Cottrell also contended that s 25(2) is constitutionally invalid because it infringes the implied freedom of political communication.
The Attorney-General of Victoria intervened in relation to that constitutional question and in relation to questions raised under the Charter of Human Rights and Responsibilities 2006 (Vic).
In rejecting Cottrell's claims Kidd CJ has found that s 25(2) of the Act is constitutionally valid and - in considering the first criminal conviction under the Act - has also found the charge brought under s 25(2) is proved.
In considering Cottrell's appeal Kidd CJ notes that the Act's
Preamble states that:
1 The Parliament recognises that freedom of expression is an essential component of a democratic society and that this freedom should be limited only to the extent that can be justified by an open and democratic society. The right of all citizens to participate equally in society is also an important value of a democratic society.
2 The people of Victoria come from diverse ethnic and Indigenous backgrounds and observe many different religious beliefs and practices. The majority of Victorians embrace the benefits provided by this cultural diversity and are proud that people of these diverse ethnic, Indigenous and religious backgrounds live together harmoniously in Victoria.
3 However, some Victorians are vilified on the ground of their race or their religious belief or activity. Vilifying conduct is contrary to democratic values because of its effect on people of diverse ethnic, Indigenous and religious backgrounds. It diminishes their dignity, sense of self-worth and belonging to the community. It also reduces their ability to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals, thus reducing the benefit that diversity brings to the community.
4 It is therefore desirable that the Parliament enact law for the people of Victoria that supports racial and religious tolerance.
The express purposes of the RRT Act are to ‘promote racial and religious tolerance by prohibiting certain conduct involving the vilification of persons on the ground of race or religious belief or activity’ and to ‘provide a means of redress for the victims of racial or religious vilification
The RRT Act also sets out its objects in s 4(1) as follows: (a) to promote the full and equal participation every person in a society that values freedom of expression and is an open and multicultural democracy; (b) to maintain the right of all Victorians to engage in robust discussion of any matter of public interest or to engage in, or comment on, any form of artistic expression, discussion of religious issues or academic debate where such discussion, expression, debate or comment does not vilify or marginalise any person or class of persons; (c) to promote dispute resolution and resolve tensions between persons who (as a result of their ignorance of the attributes of others and the effect that their conduct may have on others) vilify others on the ground of race or religious belief or activity and those who are vilified.
The RRT Act states that it ‘is the intention of the Parliament that the provisions of this Act are interpreted so as to further the objects set out in [s 4(1)]’
The RRT Act provides a scheme for addressing racial and religious vilification, with escalating seriousness of consequences to address escalating seriousness of conduct. The Act provides for a non-criminal statutory remedy for certain conduct amounting to ‘unlawful vilification’ where proof of intent is not required (Part 2 and Part 3, which includes s 8) and for criminal sanctions for ‘serious vilification offences’ where the perpetrator intends to engender extreme feelings in their audience (Part 4, including s 25(2)).Kidd CJ offers 'some conclusions' -
The following conclusions may be drawn from the legislation itself, and from the extrinsic materials:
- The legislature considered there was a genuine need to address the issue of racial and religious vilification and the harm caused by that conduct in Victoria.
- The social benefits which the legislation seeks to achieve can be readily discerned. Section 25(2) is calculated to: o Promote religious tolerance; o Prevent demonstrably harmful conduct that causes physical and psychological harm; o Prevent the marginalisation of persons on religious grounds and promote the full and equal participation of every person in society; o Proscribe conduct that diminishes the dignity of members of the community.
- The legislation reflects an earnest and considered attempt by the legislature to balance or weigh the policies of preventing vilification and allowing appropriate avenues of free speech. On its face, it has sought to ensure that any restriction occasioned by s 25(2) on the freedom of expression would be limited only to the extent necessary to prevent that harm (serious vilification), and to achieve those social benefits. In that sense the legislature has strived to tailor s 25(2) to its purpose. I accept the arguments advanced by both the respondent and by the Attorney that the relevant legislative context and Parliamentary Debate reflects that much consideration was given to ‘freedom of expression’ and ‘freedom of speech’ before the enactment of the RRT Act.
Kidd CJ noted judicial statements in support of the proposition that anti-vilification legislation enhances and promotes the implied freedom of communication, referring to Sunol v Collier (No 2) (2012) 289 ALR 128, [89]; Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48, [36]-[46], [49]; Owen v Menzies (2012) 293 ALR 571, [72].
- The field of operation of s 25(2) is narrow, it being directed only towards the most extreme, obnoxious and intentional forms of vilifying conduct.
The judgment in Cottrell accordingly states
In my view, racial and religious vilification speech – especially of an extreme kind – ‘is antithetical to the fundamental principles of equality, democratic pluralism and respect for individual dignity which lie at the heart of the protection of human rights’. Such legislation positively promotes people of different religions to participate in public life and discourse, free from vilification.”
