[JURIST] Hong Kong's Court of Final Appeal ruled Monday that a law prohibiting a transgender woman from marrying her boyfriend was invalid under the Chinese constitution. The law [text] had been interpreted to hold that only a person's gender at birth could be considered for the purposes of marriage, which is restricted to a man and woman. The 37-year-old woman, known to the media only as "W," reportedly unsuccessfully sought to overturn the law [South China Morning Post report] in court twice after having a government subsidized gender reassignment surgery five years ago. W reportedly argued that the government's refusal to allow her to marry effectively barred her from marrying anyone, in violation of the constitution. Chief Justice Geoffrey Ma Tao-li agreed, holding that barring transgender people from marrying in their acquired gender would require the government to characterize transgender people as "pseudo" men or women. The court reportedly held that the law unduly burdened an individual's right to marry, thus contravening a fundamental constitutional right. The lone dissenting judge argued that the decision upends centuries of tradition and that the populace should have been consulted. According to media sources, the ruling will not take effect for another year in order to give the legislature the option to amend the law. However, if the government chooses not to amend the law in accordance with the high court's order, the ruling will be deemed unconstitutional.
Rights of LGBT individuals remain a contentious issue throughout the world. In March Canada's House of Commons approved a bill [JURIST report] outlawing discrimination against transgender individuals. The bill amended the Canadian Human Rights Act and hate propaganda section of the Criminal code to include "gender identity" and "gender expression" as an improper basis for discrimination and hate speech. In July Alaska Lieutenant Governor Mead Treadwell issued a regulation [JURIST report] that allows transgender individuals to change the sex indicator on their driver's licenses without undergoing surgery. In April 2012 the Equal Opportunity Employment Commission (EEOC) ruled [JURIST report] that Title VII employment discrimination protections extend to transgender individuals. In March 2012 the US Supreme Court denied certiorari [JURIST report] in Fields v. Smith, allowing a lower court decision that transgender hormone therapy is a medically necessary procedure to stand.
[JURIST] The Vermont State Legislature [official website] on Monday gave final approval to a bill [H 200, PDF; MPP backgrounder] that replaces criminal penalties with civil fines for possession of up to an ounce of marijuana [JURIST news archive] and up to five grams of hashish. As the law currently stands, possession of marijuana is a misdemeanor that can lead to a six-month prison sentence, a fine of up to $500, or both. Any subsequent offense can result in a two-year sentence and a fine of up to $2,000. Under the new bill, persons over 21 would receive civil fines similar to those given for traffic violations. Subsequent violations would track a tiered system of increasing fines, but no criminal record would attach to the possessor. Similarly, a person under 21 caught with an ounce or less would be subject to the same penalties as provided by Vermont law concerning underage possession of alcohol. According to the Marijuana Policy Project (MMP) [advocacy website], the bill will now advance to Vermont Governor Peter Shumlin [official website], who is expected to finalize the bill with his signature. If approved, the law will take effect on July 1, making Vermont the seventeenth US state to decriminalize marijuana. According to media sources, Vermont Attorney General William Sorrell [official website] and Vermont's Public Safety Commission testified before the state legislature in favor of the bill. In addition, 63 percent of Vermont voters approved the proposal in local elections in 2012.
[JURIST] UN Special Rapporteur Richard Falk [official website] on Monday urged [press release] Israel to stop construction of a highway that would cut off the local roads of Palestinian community Beit Safafa. The residents of Beit Safafa were not consulted during during the planning of this six-lane highway, known as the "Begin Highway," and previous petitions to stop the construction have been rejected by the courts. Another hearing of the petition has been scheduled before the High Court on June 26. If the highway is permitted, Falk warns, it will cause "irreparable damage to the community, cutting off local roads and blocking access to kindergartens, schools, health clinics, offices, and places of worship," and will "[endanger] the livelihoods of some 9,300 people."
Tensions remain high between Israel and Palestine. In December the Israeli government unanimously rejected [JURIST report] the recent UN General Assembly resolution upgrading Palestine's UN status to non-member observer state. Also in December Falk called on Israel [JURIST report] to fully implement and continue to support the recent conflict-ending ceasefire agreement with Palestinians in Gaza. In November UN High Commissioner for Human Rights Navi Pillay pressured Israel to avoid strikes on civilian structures [JURIST report] in Gaza. This came only days after Pillay called for official peace talks between the two sides [JURIST report]. In August Amnesty International [advocacy website] called on Israel [JURIST report] to investigate its treatment of Palestinian detainees, alleging that two had been mistreated.
[JURIST] Human Rights Watch (HRW) [advocacy website] on Monday urged [press release] Tunisia to modify the country's draft constitution to address potential human rights violations. After analyzing the third draft constitution, HRW expressed concern that the language recognizes universal human rights regarding only "cultural specificities of the Tunisia people." HRW fears that affirmatively naming Islam as the religion of the state and stating that the text was drafted under "the fundamentals of Islam" will damage the equality of non-believers. While the constitution claims that religious freedom should be allowed, HRW says the text fails to establish "broader concepts of freedom of thought and of conscience" that may help to protect those citizens who abide by other religions. HRW also claims that the non-discriminatory language is weak and unconvincing, and states that the legislature is given too much power to restrict freedoms of expression, association, and assembly. To assuage these concerns, HRW recommends that a new draft contain clearer affirmations to the rights of freedom of religion and conscience, and should construct a clause incorporating the international treaties signed by Tunisia into the country's human rights laws. Also, HRW says that the new draft should state that the references to Islam should not be interpreted to promote discrimination against non-believers.
Tunisia has faced political turmoil since former president Zine Al Abidine Ben Ali [BBC profile; JURIST news archive] left office amid nationwide protests in 2011. In March Tunisian lawmakers voted [JURIST report] on a timetable to establish that the draft constitution [JURIST op-ed] was to be completed by the end of April and elections are to be held by December. A UN Working Group on discrimination against women in law and in practice in January called on the government of Tunisia to adopt stronger constitutional measures to combat gender inequality and discrimination [JURIST report], while accelerating the participation of women in all aspects of society. In October HRW called on Tunisian authorities to investigate a series of attacks [JURIST report] by religious extremists and to bring those responsible to justice. In October 2011 the UN High Commissioner for Human Rights Navi Pillay [official website] emphasized the importance of adherence to the rule of law [JURIST report] as Tunisia moves forward with its new government.
[JURIST] The US Supreme Court [official website] ruled unanimously [opinion, PDF] in Dan's City Used Cars, Inc. v. Pelkey [SCOTUSblog backgrounder; JURIST report] that section 14501(c)(1) of the Federal Aviation Administration Authorization Act (FAAAA) [text] does not preempt state-law claims stemming from the storage and disposal of a towed vehicle. Section 14501(c)(1) reads: "a State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier ... with respect to the transportation of property." In an opinion authored by Justice Ruth Bader Ginsburg, the court held:
that state-law claims stemming from the storage and disposal of a car, once towing has ended, are not sufficiently connected to a motor carrier's service with respect to the transportation of property to warrant preemption under §14501(c)(1). The New Hampshire law in point regulates no towing services, no carriage of property. Instead, it trains on custodians of stored vehicles seeking to sell them. Congress did not displace the State's regulation of that activity by any federal prescription.
The court affirmed the decision [text] of the New Hampshire Supreme Court.
Dan's City Used Cars towed Robert Pelkey's car while he was in the hospital for two months and eventually traded the car away without compensating Pelkey. Pelkey brought suit under New Hampshire law. The district court granted summary judgment for Dan's City, finding that Pelkey's claims were preempted by federal law.
[JURIST] The US Supreme Court [official website] ruled Monday in Bullock v. BankChampaign, NA [SCOTUSblog backgrounder; JURIST report] on the meaning of the term "defalcation" [definition] in the bankruptcy code. Under section 523(a)(4) of the Bankruptcy Code [text], an individual cannot obtain a bankruptcy discharge from a debt "for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny." Writing for the unanimous court, Justice Stephen Breyer held that the term, "includes a culpable state of mind requirement akin to that which accompanies application of the other terms in the same statutory phrase. We describe that state of mind as one involving knowledge of, or gross recklessness in respect to, the improper nature of the relevant fiduciary behavior."
In this case, Randy Curtis Bullock was the trustee of his father's trust. He breached his fiduciary duty and received a judgment against him. Judgments are normally dischargeable in a bankruptcy, and Bullock attempted to file Chapter 7 to liquidate his debt. However, the US Court of Appeals for the Eleventh Circuit found such a debt was not dischargeable [opinion] since it was created by a trustee acting improperly, although in this case they found he had acted negligently, not maliciously. The Supreme Court vacated and remanded the Eleventh Circuit's decision.
[JURIST] The US Supreme Court [official website] ruled unanimously Monday in Bowman v. Monsanto [SCOTUSblog backgrounder; JURIST report] that a farmer who buys patented seeds may not reproduce them through planting and harvesting without the patent holder's permission. Monsanto [corporate website; JURIST news archive] holds a patent [text] on genetically-modified seeds that utilize Roundup Ready [product website] technology. The seeds are altered to "self replicate," which means that when one plants the seeds, additional seeds will be produced. Monsanto sued a number of farmers who were using the self-replicating technology in harvests after the season they purchased the seeds, arguing the farmers should have to purchase new seeds every year. In an opinion by Justice Elena Kagan, the court sided with Monsanto: "Under the doctrine of patent exhaustion, the authorized sale of a patented article gives the purchaser, or any subsequent owner, a right to use or resell that article. Such a sale, however, does not allow the purchaser to make new copies of the patented invention." The court noted that their holding was limited to the case before them, "rather than every one involving a self-replicating product."
Monday's ruling upholds a decision by the US Court of Appeals for the Federal Circuit. The appeals court ruled for Monsanto [opinion] in 2011, stating that patent exhaustion had not occurred because "once a grower, like Bowman, plants the commodity seeds containing Monsanto's Roundup Ready technology and the next generation of seed develops, the grower has created a newly infringing article."
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