Lesbian, gay, bisexual, and transgender (LGBT) persons in Bermuda, a British Overseas Territory, face legal challenges not experienced by non-LGBT persons. Homosexuality is legal in Bermuda, but the territory has long held a reputation for being homophobic and intolerant. Since 2013, the Human Rights Act has prohibited discrimination on the basis of sexual orientation.
Bermuda has been in the international spotlight in recent times over the legalisation of same-sex marriage. Such marriages were first legalised by the Supreme Court in May 2017. However, the Government subsequently passed a law banning same-sex marriage and replacing it with domestic partnerships. This law was then struck down in June 2018 by the Supreme Court and again in November 2018 by the Court of Appeal, and since the latter ruling same-sex couples have been free to marry in the territory. On 14 March 2022, however, the Judicial Committee of the Privy Council ruled against the Court of Appeal, banning same-sex marriage once again.
Law regarding homosexual activity
Prior to 1994, anal sex and oral sex (for both homosexuals and heterosexuals) were illegal and punishable by up to ten years' imprisonment. Lesbian activity has never been illegal in Bermuda. Following the passing of the Stubbs Bill in 1994, consensual sexual conduct in private was legalised in Bermuda, but with a higher age of consent for gay male sexual conduct at 18, than the age of consent of 16 for heterosexual and lesbian sexual conduct. This age of consent discrepancy was in clear violation of the European Convention on Human Rights. On 1 November 2019, a law took effect, amending the Criminal Code establishing a universal age of consent for consensual anal intercourse at 18 years. As of 2022, age of consent is still not equal, being at 16 for all persons and 18 for persons engaging in consensual anal intercourse.
A provision in the Criminal Code regarding gross indecency between men was repealed in 2019.
Recognition of same-sex relationships
Same-sex marriage is not legally available in Bermuda since 2022.
In November 2015, the Supreme Court of Bermuda ruled to allow binational same-sex partners equal rights in employment and benefits as all other spouses in Bermuda. In response, politicians decided to hold a non-binding referendum on same-sex marriage, which was held in on 23 June 2016. Voters were asked two questions; whether they were in favour of same-sex marriages and whether they are in favour of same-sex civil unions. Both proposals were rejected by 60–70% of voters, though the referendum was invalid as less than 50% of eligible voters turned out.
In early 2017, the Supreme Court deliberated on a case brought by a male same-sex couple (Winston Godwin and Greg DeRoche), who had their application for a marriage license denied in July 2016. In May 2017, Justice Charles-Etta Simmons made the historic ruling that the couple had been discriminated against and that the Marriage Act 1944 was inconsistent with the provisions of section 2 (2) (a) (ii) as read with section 5 of the Bermuda Human Rights Act, as they constituted deliberate different treatment on the basis of sexual orientation. The ruling had the effect of making same-sex marriage legal in Bermuda.
Following general elections in mid-2017, the new PLP Government passed a law replacing same-sex marriage with domestic partnerships in December 2017. The British Crown did not challenge the change, and the Governor of Bermuda gave royal assent to the law on 7 February 2018. The law went into effect on 1 June 2018, and Bermuda became the first territory in the world to effectively reverse marriage rights for same-sex couples by legislation. A number of international politicians and gay rights organisations criticised the change and argued that the move would damage the island's tourist industry.
By April 2018, two challenges against the law were filed with the Supreme Court. The court heard the matter in May 2018 and issued a ruling on 6 June 2018. The court revoked the parts of the law that prevented same-sex couples from marrying, though also agreed to stay the ruling to allow the Government to appeal to the Court of Appeal. The Court of Appeal upheld the Supreme Court's ruling on 23 November 2018, thereby allowing same-sex marriages to resume once more in Bermuda. On 14 March 2022 the Judicial Committee of the Privy Council ruled for the Attorney General, who was appealing the Court of Appeal’s ruling, banning same-sex marriage once again. In July 2022, laws were passed within Bermuda to retrospectively backdate same-sex marriage legality formally prior to March 2022.