UK Minister Answers Questions About Bermuda

Bermuda’s Domestic Partnership Act legislation continues to be a topic of discussion in British Parliament, with the Minister of State responding to questions from a Labour MP.

Labour MP Catherine West asked the Minister of State “what recent assessment his Department has made of the status of LGBT+ rights in Bermuda” and “what recent discussions he has had with his Bermudian counterpart on same-sex marriage legislation.”

In response, the Minister of State Alan Duncan said, “The Domestic Partnership Act will withdraw the entitlement for same sex couples to marry and replace it with a provision for domestic partnerships for all couples, regardless of gender. Same sex couples entering into a ‘domestic partnership’ will be entitled to the same benefits as married couples.

“Those who have been legally married in Bermuda since the Supreme Court decision in May 2017, will retain their married status and have the same legal rights as those in domestic partnerships.

“The Supreme Court ruling permitted same sex couples in Bermuda to marry, but it did not address the entitlement of same sex couples to the same benefits as opposite sex married couples.

“The Act now put those rights on a clear statutory footing. Less than a year ago, same sex couples had no legal recognition at all under Bermudian law.

“The Minister for the Commonwealth and the UN raised the issue of human rights including LGBT rights and the need to ensure that our collective human rights obligations are upheld, in his meeting with the Bermuda Premier in October 2017, and at the Overseas Territories Joint Ministerial Council in November 2017.

“Officials have engaged on a regular basis with the Government of Bermuda, and with all of the Overseas Territories to encourage and promote LGBT equality.”

The statement in UK Parliament that the “Court ruling permitted same sex couples in Bermuda to marry, but it did not address the entitlement of same sex couples to the same benefits as opposite sex married couples” had also been made by Premier Burt during an interview late last year.

Saying “it is something that has been missed,” the Premier said that after the passage of the Domestic Partnership Act, same sex couples will “enjoy more legal benefits than they previously had.”

In the interview last year, Premier Burt said, “What happened previously before is that, for instance, same-sex couples did not have rights to pensions, did not have rights to survivorship benefits, hospital visitation, health insurance rights, prior to the passage of the Domestic Partnership Act. They now have those benefits, which they did not previously have.

“Though the judge said that same-sex couples were entitled to marry, the judge cannot give same-sex couples legal benefits,” the Premier said.

Following the Premier’s comments, we asked Mark Pettingill, the lawyer who represented the same sex couple in their legal case which resulted in same sex marriage being legal, about the matter, and he explained that as some Acts, such as the Pensions Act, used language such as ‘man’ and ‘wife’, the Acts would need amending, however he also added that “could have been accomplished as indicated by Justice Simmons in her ruling without removing the right to same sex marriage.”

The legislation is already facing a legal challenge, as Mr Pettingill has filed a motion on behalf of a client challenging the constitutional aspects of the Domestic Partnership Act.

Mr Pettingill previously told Bernews that Roderick Ferguson, a Bermudian man living in the United States, filed this lawsuit because “the right to have a same-sex marriage has been taken away.”

The former Attorney-General maintained that as Bermuda created legislation that removes it, the Domestic Partnership Act is unconstitutional.

The Orginating Summons filed [PDF] is seeking an Order declaring that the “Domestic Partnership Act 2018, in so far as its effect is to reverse the decision in the case of Godwin & Deroche v The Registrar General, the Attorney General et al [2017] SC (Bda) 36 Civ, notwithstanding provisions of the Human Rights Act 1981, is void.”

This is not the first time the matter has been brought up in UK Parliament, with British MPs debating the matter before and after the UK-appointed Governor gave assent to the Bill.

Extract of the UK House of Commons discussion on Feb 8th after assent was granted

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The British Government’s stated position is that while they are disappointed about the removal of same-sex marriage in Bermuda, the domestic partnerships meet the European Court of Human Rights requirement for legal recognition of same-sex relationships, and that when engaging with the British overseas territories, the British Government has to “respect that they are separate, self-governing jurisdictions with their own democratically elected representatives and the right to self-government.”