A Cayman-based advocacy group representing the gay community has been granted permission to make representations in a Bermuda same-sex marriage case before the European Court of Human Rights.

Britain was notified earlier this year that an application had been made to the ECHR concerning the revocation of same-sex marriage in Bermuda. As the state responsible for the island’s international relations, Britain is tasked with defending the case.

The island’s Human Rights Commission has been given permission to submit comments, and now Colours Caribbean has also been allowed to make representations.

Alex Potts, KC, of 4 Pump Court chambers based in London and Hong Kong, who is working pro bono for the group said: “Colours Caribbean does some very effective and important education and advocacy work in the Cayman Islands, and across the broader Caribbean and Latin American region, advocating for, and representing, the rights of LGBTQIA+ people.

“Colours Caribbean applied for, and was granted, permission to intervene in the proceedings.

“Although the case raises some legal arguments that are unique to Bermuda’s situation, and to Bermuda’s relationship with the United Kingdom, the ECHR’s determination of the case may also have an impact on the various other British Overseas Territories in the Caribbean region.”

Mr Potts, who used to be based in Bermuda and still does work on the island, added: “For as long as the United Kingdom remains a member of the Council of Europe and a signatory of the European Convention on Human Rights, the United Kingdom Government, including for these purposes, the local governments of the British Overseas Territories, to whom the ECHR has been extended, remains legally obliged as a matter of international law to respect, and to implement, any relevant decision of the European Court of Human Rights.”

He added: “The applicants would logically expect that a victory in the ECHR will necessarily force the UK Government to reintroduce same-sex marriage rights in Bermuda, whether that is by UK legislation enacted in the UK and extended to Bermuda, or by persuading the Bermuda Government to enact such legislation itself.

“In contrast, the Bermuda Government might still think that it is theoretically possible that, even if the UK Government loses in Strasbourg, the Bermuda Government might either be able to persuade the UK Government to ignore and not implement the ECHR’s ruling with respect to Bermuda, or the Bermuda Government could explore the possibility of independence from the UK and thereby take Bermuda out of the ECHR altogether.”

Em DeCou, president of Colours Caribbean, told the Cayman Compassthat the case was important in determining the future of LGBTQ+ people across all the British overseas territories.

“This ruling has the potential to set a precedent for all BOTs, whereby same-sex marriage legislation could be revoked, which could upend the families and lives of many brilliant persons who contribute to our society,” she said.

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In the Bermuda case, seven applicants made a complaint to the court under Article 12 of the European Convention on Human Rights “about the revocation of the legal recognition of same-sex marriage in Bermuda” owing to Section 53 of the Domestic Partnership Act 2018, which limited marriage to being between a man and a woman.

They, along with a Hamilton church, also complained of a violation under Article 9 “based on their belief in same-sex marriage and/or their desire to take part in legally recognised rites of marriage in accordance with their faith or philosophical or moral convictions”.

Article 9, which is about freedom of thought, conscience and religion, and Article 12, the right to marry, were to be read together with Article 14 — prohibition of discrimination.

Same-sex marriages in Bermuda were allowed in May 2017; deemed unlawful by the DPA, which came into effect in June 2018; permitted again in November 2018 after a Court of Appeal ruling; and again prohibited after a Privy Council decision on the legislation in March 2022.

The ECHR’s website showed that applicants in the case included Roderick Ferguson, Julia Aidoo-Saltus, Peter Carpenter, Gabby Jackson, David Northcott and Wesley Methodist Church of Bermuda. Two others were listed by initials only — DD and JP.