What Happens When Marriage Equality Is Repealed? Bermuda Is Already Living It

Bermuda’s example shows that LGBTQ equality cannot be taken for granted, even within battles we think we’ve won.

After the U.K. Privy Council upheld Bermuda’s decision to repeal same-sex marriage in a March court ruling, Roderick Ferguson felt like he was mourning in isolation. Just a handful of media outlets commented on the decision, and it seemed to Ferguson like the world had already moved on. The lack of attention from the press was a stark contrast to February 2018, when publications like CNN, USA Today, and The Guardian reported in depth on the passage of a bill then making Bermuda—a self-governing British territory—the first municipality in the world to overturn marriage equality. Even Ellen DeGeneres tweeted about it.  

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For a month after the ruling, Ferguson said that he cried for at least an hour every day. Injustice, he said, is a “difficult burden to bear.” “I had to really spend a lot of time grieving it,” he told VICE. “I’d invested so much emotionally into it, just to see the bad guys win. It’s hard to not take it personally when your name was literally on the case.”

The Privy Council ruling was the culmination of a years-long battle for LGBTQ equality in Bermuda, one that has taken several twists en route to the present moment. Before 1994, both oral and anal sex were punishable by up to 10 years in prison, and Bermuda updated its Human Rights Act to ban anti-gay discrimination in 2016. Marriage equality itself has actually been argued twice in Bermuda, in two separate cases—the first of which resulted in the Supreme Court of Bermuda legalizing same-sex marriage in 2017. After Bermuda’s governor, John Rankin, signed a bill invalidating that ruling in favor of domestic partnerships the following year, LGBTQ activists filed a second lawsuit and won the rights to marriage again—just for the Privy Council to overturn the decision once more.

Today, Bermuda is in an uneasy place—LGBTQ people are mindful of the rights that have been secured, yet still shell-shocked from the repeated flip-flops of the past few years. The territory’s domestic partnership law has been hailed as among the most progressive in the world—allowing same-sex couples rights like hospital visitation and adoption—but it draws the line at marriage. That omission reaffirms a second-class status for same-sex couples who have put everything on the line to be treated as equals.

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As the United States teeters on the precipice of a major LGBTQ rights backslide, the activists and attorneys involved in Bermuda’s marriage equality fight expressed that the U.S. would be remiss not to pay attention to how rights can be won and then quickly ripped away. This feels especially pressing after the Supreme Court repealed Roe v. Wade in an opinion authored by Justice Samuel Alito referring to the 1973 ruling as “egregiously wrong from the start.” The decision could imperil LGBTQ rights won in Obergefell v. Hodges, the Supreme Court’s 2015 marriage equality ruling, and Lawrence v. Texas, the 2003 decision decriminalizing sodomy. In an opinion concurring with Roe’s repeal, Justice Clarence Thomas called to reconsider both of those landmark court victories.

“I’d invested so much emotionally into it, just to see the bad guys win. It’s hard to not take it personally when your name was literally on the case,” Ferguson said.

The U.S. and Bermuda have their own distinct legal traditions, but Bermuda’s example illustrates the profound vulnerability of progress: LGBTQ equality cannot be taken for granted, even within the battles that feel as if they are already over.

“Everyone thought that Roe v. Wade was unchangeable,” said Rod Attride-Stirling, the lawyer who represented Bermuda’s LGBTQ plaintiffs in the marriage equality case earlier this year. “If Trump’s court can change Roe v. Wade, they can change anything and everything. Anyone who thinks that Obergefell is unchangeable—well, sorry to disappoint you. It’s next.”

THE LONG FIGHT

LGBTQ advocates in Bermuda often say they prefer to take the “long view” on equality, recalling a decades-old maxim that the fight for civil rights is a marathon, not a sprint. This perspective is a function of the tireless work it took even to get to where Bermuda to the precarious state in which it exists now: Winston Godwin-DeRoche and his husband, Greg, have been fighting for the freedom to marry since 2016, when they filed the first lawsuit challenging Bermuda’s denial of marriage rights to same-sex couples. Their suit alleged that the Human Rights Act’s prohibition of discrimination on the basis of sexual orientation also applied to marriage. 

In May 2017, the Supreme Court of Bermuda found in favor of the Godwin-DeRoches. Godwin-DeRoche, who now lives with his husband in Toronto, said he gasped a “big sigh of relief” when the verdict was read. The sound echoed years of struggle as a queer person growing up in Bermuda. When he came out to his father while he in college, Godwin-DeRoche received a lengthy email from his father the next day saying that homosexuality was “against the purpose of life.” If he continued to date men, his father said he would “cease to exist.”

Having lived a lifetime of those kinds of experiences, Godwin-DeRoche said the victory was “validating” for LGBTQ Bermudians. “It showed that we belong,” he said. “To win the case said, ‘We’re here, and we deserve the same rights as you.’”

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Bermuda’s winding road toward LGBTQ equality would take another series of sharp turns before the case wound up before the U.K. Privy Council earlier this year. In June 2018, its Supreme Court struck down the Domestic Partnership Bill but agreed to keep same-sex marriages paused until the case could be reviewed by the Court of Appeal. Five months later, the Bermuda appeals court upheld the restoration of marriage equality, allowing LGBTQ couples to wed once more. Same-sex marriage would remain the law of the land for 40 months before the U.K. court weighed in earlier this year, repealing marriage equality for the second and final time. 

Of Bermuda’s small population of 63,000 residents—less than a third the size of Akron, Ohio—it’s estimated that around a dozen same-sex couples tied the knot during the period that it was still legal.

Adrian Hartnett-Beasley and his husband, Shane, tied the knot in New York in 2015 before same-sex marriage was officially legal in Bermuda. When the country repealed marriage equality for the first time with the passage of the Domestic Partnerships Bill, he said it felt “terrible” but said the blow was easier to deal with because he “knew that we were going to fight it.” The second time, he said, was much harder because the U.K. Privy Council ruling “has more finality to it.” The Privy Council is the highest advisory body overseeing legal matters affecting U.K. Commonwealth territories and so its ruling could be the end of the line.

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“The overwhelming feeling I have is frustration and anger that this issue was politicized in the first place,” he said. “We felt we were in the position where we’re trying to discuss marriage equality with an opposition that didn't even think that gay people should have human rights protection. It’s like trying to have a debate with someone when the fundamental bedrock of where you start is not the same.”

While Hartnett-Beasley said marriage isn’t the only issue affecting LGBTQ Bermudans—anti-trans discrimination is still legal under the Human Rights Act—he knows how important marriage rights are. Prior to the years of back and forth on marriage equality, he and his husband were forced to lobby the Bermuda Supreme Court for custody of their son, Grayson. Their petition was filed in late 2014 a few months after Grayson was born, and the process was further complicated by a painful and unexpected dispute with Grayson’s birth mother. Around the time of his first birthday, she decided that she no longer wanted to give Grayson up.

“It showed that we belong. To win the case said, ‘We’re here, and we deserve the same rights as you,’” Godwin-DeRoche said.

Hartnett-Beasley said the dispute stretched on for two and a half years. It took $350,000 and three court cases before he and his husband finally won the right to adopt their son in November 2016, a fight that drained every last penny from their savings. 

Grayson was outside playing with some of the neighborhood kids as Hartnett-Beasley spoke, and tears began to fill his eyes as he reflected on the “funny, caring, smart, cheeky, sarcastic” person that his son has become. The journey that it took to get here is one that LGBTQ Bermudians know well: countless hours of sacrifice and hardship in the name of love. “Who we are as a family is wrapped up in conflict,” Hartnett-Beasley said. “We fought, we cried, and we bled for it.”

CHANGE ON THE HORIZON

Despite the whiplash of the past few years, LGBTQ Bermudians largely remain optimistic about the state of equality. Public opinion has shifted dramatically in the four years since the majority of Bermudians opposed any form of relationship recognition for same-sex couples. In a September 2020 poll from OutBermuda, 58 percent of respondents backed full marriage rights for all partners who wish to wed. That’s a huge change from 2016, when 69 percent of Bermuda voters opposed allowing same-sex couples to marry.

Maryellen Jackson, who joined Ferguson as a plaintiff in the second marriage equality case, said that she knew things had changed in Bermuda even after this year’s court ruling came down. Although she said the verdict was “one of the most disappointing moments of my life,” immediately after it was announced, her phone began to ring with people expressing a “sense of mourning that we had gotten to this point and it was taken away,” she said. That feeling of community support was new for her: Jackson’s family members refused to talk about her personal life. At her first teaching job, she said that the partners of other faculty members would get invited to school functions, but her then-girlfriend was always missing from the invite list.

The influx of affirming calls and messages to Jackson’s phone showed her how much Bermuda had gained in terms of public support for LGBTQ people, even as marriage equality was lost. Jackson is now teaching at a school where she brings all of herself to work with the full support of administration, and she said there’s not a day that goes by where she isn’t wearing something rainbow-colored in class, whether it’s a T-shirt, bracelet, or a pin. She even has a rainbow dreadlock.

“Bermuda is right on the edge of a precipice,” Jackson said, adding that the public “realized that the issue they were fighting was really a non-issue—because their world did not change.” “It was never a big deal after all.”

Many said Bermuda’s dramatic social shift on LGBTQ rights was evident during the island’s first-ever Pride festival in 2019. While Pride in the U.S. is celebrated during the month of June to commemorate the 1969 Stonewall Riots, Bermuda Pride organizers chose the last weekend in August to coincide with the 25th anniversary of decriminalizing homosexuality. Turnout for Bermuda’s inaugural Pride far exceeded organizers’ initial expectations: More than 6,000 people are estimated to have attended the parade, with marchers filling the streets of Hamilton, the island’s capital and largest city, and spilling out past the sidewalks. That total represents around a tenth of the entire population of Bermuda.

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“Pride gave people permission,” said David Northcott, a co-organizer for the event. “The evolution and the changes had been building over the years—all the way back from the 90s. Pride gave everyone a time and a place to be anchored in this moment.”

The team that put Pride together—which includes activists Liz Christopher and Chen Foley—dates back years before a parade even seemed possible. Northcott and Christopher were part of the campaign to lobby for sexual orientation protections in the Human Rights Act, but they couldn’t publicly advocate for LGBTQ equality during the six years they spent behind the scenes. When Christopher appeared in radio advertisements and interviews to discuss the need for inclusive anti-discrimination laws, she had to be a “faceless and nameless person” or risk losing her job, she said. 

“The overwhelming feeling I have is frustration and anger that this issue was politicized in the first place,” Hartnett-Beasley said.

It was Pride that showed Christopher and Foley how much things had changed in Bermuda. Christopher’s parents accompanied her to Pride, while Northcott’s whole family showed up to the parade to support him and his husband. “We had everyone from babies in arms to grandparents sitting on the lawn having a picnic,” he said. “The level of support underscored what we wanted to say, which was, We belong, we’re here, and we’re part of the community.”

CONTINUING THE FIGHT

It’s unclear what’s next for marriage equality in Bermuda. The territory is—in some ways—in the same place as the U.S. right now: anxiously awaiting what is to come as the future remains hazy. While it would take years for a case challenging same-sex marriage to reach the U.S. Supreme Court, its most conservative members have signaled they are eager to chip away at LGBTQ rights. In an October 2020 opinion authored by Thomas, he referred to the freedom to marry as “a novel constitutional right” and accused the court of demonstrating a “cavalier treatment of religion in its Obergefell decision.” Alito co-signed Thomas’ arguments.

Attride-Stirling, who publicly advocated for decriminalizing homosexuality before joining the same-sex marriage cases, is steadfast in his belief that marriage equality will someday become legal again in Bermuda. He said the territory’s second largest party, One Bermuda Alliance (OBA), has promised to pass a parliamentary bill reinstating marriage equality should they regain power. OBA last held a majority in July 2017, and since the territory is a democracy, he asserted that the party is bound to win re-election some time in the coming years.

Having fought this battle for decades, Attride-Stirling said he “can see change on the near horizon” in Bermuda. “I’m much more frightened about what’s happening in the U.S. than what’s happening here,” he said. “In the U.S., you’ve got a very young Trump Supreme Court. They’re going to be entrenched for the next very long period of time.”

Follow Nico Lang on Twitter.

Tagged:

supreme court, LGBTQ rights, same-sex marriage, marriage equality, gay marriage, civil unions, Obergefell v. Hodges, Obergefell, LGBTQ equality, civil partnerships

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