In my opinion Decriminalisation 1993: a countdown to Pride

By Felix Alvarez, Chair of Equality Rights Group /Action on Poverty

History. Inevitable and without disguise.

And as to the events of that year, the fact is that, in contrast to a developing narrative that may be, perhaps, obeying interests other than historicity, the evolution towards change in the field of same-sex social and legislative discrimination in Gibraltar doesn’t actually have its genesis in Gibraltar.

Nor did the push to decriminalisation in 1993 have its decisive origins in anything local.

If nothing else, because there was hardly a societal dialogue or infrastructure to sustain it.

Research into the political mood of 1990s Gibraltar unveils no outward preoccupation with issues we would today call ‘LGB’ (transgender comes much later). In effect, a perusal of archives at this moment in Rock time, registers no apparent social demand to speak of; no political party manifesto that suggests that yes, Gibraltar had an appetite to deal with the issue of sexual minorities in its midst. Quite the contrary. Both media and wider political attention was focused elsewhere. (A notable exception in due course were some pro-reform interjections by then Gibraltar Chronicle editor, Dominique Searle).

And yet, much was happening below the surface: certain suicides or violent attacks passed not unnoticed but ‘masked’; and a steady stream of invisible people emigrated to better social opportunities where anonymity and distance allowed them a breathing space to live a personal life. Today we would recognise the motivating symptoms as aspects of discrimination and homophobia. At that juncture, however, the realities were noted in the underground safety of those ‘in the know’.

As is normative for the period, then, LGB issues remained visibly invisible.

The motor required to drive change from within was yet to come. For the time being, the fact is that it would be external factors that would determine eventual outcomes. Nothing else was to make any real difference.
Indeed, without Jeffrey Edward Anthony Dudgeon, a gay activist in Northern Ireland, it’s doubtful anything much would have happened in Gibraltar in 1993 on this front.

You see, Dudgeon had taken the United Kingdom to the European Court of Human Rights (ECtHR) in 1981. With the exception of Scotland, which had decriminalised its legislation in 1980, Dudgeon’s lawyers argued that the UK’s application of Victorian sexual offences legislation in England, Wales and Northern Ireland violated his Convention rights.

And he was right. It did.

The Court upheld his complaint, judging he’d been subject of an unjustified interference with his right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR). The implications were huge: a legal precedent had been set, leading the Council of Europe to formally require that homosexuality no longer be criminally penalised. Henceforth, the clock was ticking, and Gibraltar would be under pressure to comply with the Convention.

A complaint about Gibraltar’s backward sexual legislation surfaced in the UK. My colleague, Charles Trico, picked up on the commentary regarding Gibraltar’s backwardness and heard the talk of decriminalisation. He asked open questions.

However, unbeknownst to him and others, the big machinery had already been decided. The outcome was fixed and in motion. Dudgeon had placed the UK in an embarrassing position. Decriminalisation was inevitable. The Gibraltar Government, however, needed to play to its local, conservative and apparently religious voting constituency; by so doing, it ensured no unwanted collision with British interests.

Gibraltar therefore acted to prevent any direct intervention from the UK.

And if any proof of this reading be required, one must ask why it took several decades post-Dudgeon and post-decriminalisation for Gibraltar to move. If any activism on the part of any individual, group or Gibraltar as a whole had spurred the decriminalisation change, why did nothing at all flow from that fact? Why did government housing for couples continue to be reserved exclusively for heterosexuals until 2010? Why was the age of consent unequal? Why did the Unions lose their tongue for almost two decades? ‘Why’ is a question that finds no response except silence for a full, sterile seven years.

It would take much more than simply holding the lid down on such a contentious matter in a small community like Gibraltar. For a start, ignorance on the issues at every conceivable level (from the political to the legal to the everyday) was rife; and would demand patient education, raw debate and activism over time to overcome.
In early September 2000 I launched ‘Gib Gay Rights’.

It was widely referred to as ‘GGR’. From very early on it set the agenda clearly on the table: nothing less than removal of all discrimination for the LGB population. The majority of these early demands (they can never be definitive) are enumerated below in the list of the actual legislative changes achieved.

With the 2000 emergence of GGR, the impetus had been internalised. It was Gibraltar-led. I took care not to enshrine our demands in a limited ‘gay rights’ format; my insistence rested on viewing the rights of the LGB population within the framework of human and civil rights for all. For a small community such as ours, we ignore this factor at our peril. Singling out people groups is the gross error of history – and especially in tiny communities.

Today I fear this lesson is being lost.

The following non-exhaustive list will act as a timeline to bring us up to Pride.

Equality in employment: the Equal Opportunities Act 2006, which came into force on 1 March 2007, prohibits discrimination in areas such as employment and the provision of goods and services on numerous grounds, including sexual orientation and "gender reassignment".This legislation was highly significant on an often overlooked count: it sees the introduction of ‘sexual orientation’ as a legal category under Gibraltar law for the very first time.

Housing equality: GGR took up campaigning on behalf of a lesbian couple which had been denied application for goverment housing as a couple. We helped to steer legal action in a case named Rodriguez v Minister of Housing. The matter was ultimately resolved by the Privy Council in London in a late 2009 judgment and Gibraltar government housing discrimination on sexual orientation had ended.

Age of consent: This was another area where law had been unequally applied between hetero- and homo-sexual citizens. GGR’s campaigning successfully led to equalisation of the law in 2012.

Sexual abuse and paedophilia: GGR successfully pioneered a campaign for specific penalisation of paedophilia and the establishment of a Sex Offenders Register. The Crimes Act 2011 enshrined our demands.

Adoption: The Supreme Court of Gibraltar ruled in April 2013 that same-sex couples had the right to adopt. On 10 April 2013, the Supreme Court ruled that section 5 (2) of the Adoption Act 1951 was in violation of the Gibraltar Constitution thus, in effect, legalising LGB adoption in Gibraltar. Government announced that they planned to amend the law as soon as possible and did so in 2014 in its civil partnership law.

Civil Partnership: In March 2014, the Gibraltar Parliament passed a Civil Partnership law, granting same-sex couples most of the rights of marriage, including allowing the adoption of children by civil partners, as mandated by the court ruling in 2013. Most significantly, in negotiations GGR successfully insisted on any such provisions being equally applicable to opposite-sex couples if equality was to underpin them.

Equal Civil Marriage: As Chair of GGR I insisted that talk of a special ‘Gay Marriage’ law should be discarded. My argument was clear: no separate law was equal. Integration into the social fabric was the only formula for sustaining a cohesive community of mutual respect. A simple amendment to existing Civil Marriage legislation inserting wording applicable to two marriage partners, regardless of gender, was the route to take. On 26 October 2016, the Civil Marriage Amendment Act 2016 was passed in the Gibraltar Parliament with unanimous support. It took effect on 15 December 2016.

In Vitro Fertilisation (IVF): the Gibraltar Health Authority approved an amendment to its in vitro fertilisation policy to allow lesbian couples to access treatment.

Surrogacy: Following approaches by affected same-sex couples frustrated at the lack of progress in implementing appropriate legislative change, I entered into discussions with the Gibraltar government to overcome the impediments, and in February 2021, Gibraltar introduced a surrogacy law, to access non-commercial surrogacy processes and procedures. The legislation also provides automatic recognition to children of same-sex couples conceived through artificial insemination.

Hate Crime and Speech protections: a Bill to amend the Crimes Act 2011, that would criminalise both hatred and harassment on the grounds of sexual orientation as a hate crime (but encompassing other categories such as race and religion too) was approved by the Gibraltar Parliament on 19 September 2013 and with effect from 10 October 2013.

Throughout the 23 years of human and civil rights campaigning I’m proud to have headed, the vision has been consciously integrative. We have taken measured steps oscillating between forceful activism for justice on the one hand, and yet peaceful, non-partisan transitioning for a community which, as is clear from the earliest social history on the topic (the opening section of this article) did not immediately jump at the opportunity to engage in important legal changes, nor indeed in the subsequent social adaptations these would entail.

As Chair, I took lessons from the experience of other countries in the process, both good and not so. I had seen that merely duplicating strategies and moves which had arisen in monster cities like London, New York, Madrid, Amsterdam or elsewhere was not necessarily a formula to blindly follow in Gibraltar. It was observation from our own experience that dictated strategy.

By contrast, decriminalisation had obeyed an external obligation.

At ERG/AOP we advocate prudence and wisdom; strength in facing challenges, but caution in managing change. And, in contrast to experience elsewhere, it’s important to point to our low incidence of gender and sexual orientation crime over the years in vindication of our policy of gradual integration for change.

We regret, however, that there are signs appearing on the horizon which speak of social discomfort in some quarters. Because change is never easy. It often brings disruption and reaction. And yet for the past twenty-three years, this has been practically unheard of.

What has changed?
As Chair of ERG/AOP, I am fortunate to have worked with an Executive mostly open to an agenda of change. In the process, strict political non-partisanship and active listening to the concerns of citizens have been our guiding imperatives.

But issues arise from all quarters; and those who feel affected one way or another deserve consideration; which is not to diminish justice for any other sector, but to uphold respect. Justice requires us to listen always. It requires us to be alive to moves and motives that result in unnecessary confrontation. Of course, not everyone will agree all the time. Least of all on issues as sensitive as sexual orientation, gender and identity.

And yet a steady hand sensitive to guiding change over time can bring, if not complete agreement by all sides, an understanding approach that makes living together in acceptance of each other’s differences much more possible.

As a human and civil rights defender, it is my duty to equally stand up for the rights of all citizens when their human rights space and dignity is threatened. And where competing rights meet, it’s my felt responsibility to hold out for peaceful social co-existence. Difficult as the challenge is, it is nonetheless the mark of a maturing society. One that is no longer driven by paternalistic outside demands, but by our own internal instinct to societal well-being.