EU presents first-ever LBGTIQ equality protection strategy

The European Union’s executive Commission presented its first strategy on Thursday to protect lesbian, gay, bisexual, trans, non-binary, intersex, and queer (LGBTIQ) equality, proposing to extend the list of EU crimes to cover hate crime and ensure that EU policymaking reflects LGBTQI concerns.

Commission President Ursula von der Leyen announced the plan in her 2020 State of the Union Address. The proposal aims to strengthen equality and non-discrimination in the EU, noting that discrimination against LGBTIQ individuals has increased in the EU in recent years. The Commission cited survey figures showing that 43% of LGBT people said they felt discriminated against last year. Further, the strategy stated that “right-wing governments in Poland and Hungary have become increasingly homophobic in the past year.” The Commission also noted that the COVID-19 pandemic has only exacerbated discrimination against LGBTIQ people. The strategy sets out several of targeted actions that the EU will mainstream into all EU policies, legislation, and funding programs for the next five years.

The Commission stated that it would promote the use of government funding to improve the socio-economic position of LGBTIQ people and gather evidence regarding the barriers to full equality experienced in employment, education, and healthcare. Notably, the Commission stated that in 2021 it would present an initiative to extend the list of EU crimes to cover hate crime and hate speech when targeted at LGBTQI people. The measure also seeks to ensure that the legal status of LGBT relationships cannot be revoked when they cross borders.

The strategy builds upon the Commission’s List of Actions to Advance LGBTI Equality and other European Commission strategic frameworks designed to end discrimination based on race and gender. EU Commission Vice-President Vera Jouorova stated, “[w]e will defend the rights of LGBT people against those who now have more and more appetite to attack them from this ideological point of view.”

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ECtHR: Refusal to grant applicant contact rights in respect of child born to her ex-partner using assisted reproductive techniques: no violation of the Convention

In today’s Chamber judgment1 in the case of Honner v. France (application no. 19511/16) the European Court of Human Rights held, unanimously, that there had been: no violation of Article 8 (right to respect for family life) of the European Convention on Human Rights. The case concerned the refusal to award contact rights to the applicant in respect of the child which had been born to her former partner in Belgium using assisted reproductive techniques while the two women were a couple, despite the fact that the applicant had raised the child during his early years. The Court found in particular that by rejecting the applicant’s request on grounds of the child’s best interests and by duly giving reasons for the decision, the French authorities had not failed to fulfil their positive obligation to guarantee effective respect for the applicant’s right to respect for her family life.

Principal facts
The applicant, Rachel Honner, is a French national who was born in 1966 and lives in Paris (France). The child, G., was born in 2007 after the applicant and her former partner, C., decided to start a family. The couple had been living together since 2000 and had entered into a civil partnership in April 2009. The child was brought up by both women until their separation in May 2012.

A few weeks after their separation, Ms Honner’s former partner objected to the continuing relationship between her child and the applicant. The applicant applied to the family judge for visiting and staying contact rights, which were granted by the tribunal de grande instance. The judge took the view that the child’s birth had been the result of a joint family project on the part of the couple and that the applicant had been committed to the child since he was born.
The applicant’s former partner appealed against the judgment of the tribunal de grande instance, which was overturned. The Paris Court of Appeal found that the meetings between the applicant and the child were excessively traumatic for the child and that granting contact rights to Ms Honner was therefore contrary to his best interests. Ms Honner lodged an appeal on points of law with the Court of Cassation, without success.
In the meantime, in response to a complaint filed by Ms Honner, the first-instance disciplinary board of the Ile-de-France Medical Association had issued a reprimand to the doctor who had drawn up
certificates produced by the applicant’s former partner in the Court of Appeal proceedings. The
disciplinary board found that the certificates had been biased and had contained statements about
facts that the doctor himself could not have known.
1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,
any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges
considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final
judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.
Further information about the execution process can be found here: http://www.coe.int/t/dghl/monitoring/execution.
2
Complaints, procedure and composition of the Court
Relying on Article 8 of the Convention (right to respect for family life), the applicant alleged that the
refusal to grant her contact rights in respect of her former partner’s son, whom she had raised
during his early years, had breached her right to respect for her family life.
The application was lodged with the European Court of Human Rights on 7 April 2016.
Judgment was given by a Chamber of seven judges, composed as follows:
Síofra O’Leary (Ireland), President,
Stéphanie Mourou-Vikström (Monaco),
Latif Hüseynov (Azerbaijan),
Jovan Ilievski (North Macedonia),
Lado Chanturia (Georgia),
Ivana Jelić (Montenegro),
Mattias Guyomar (France),
and also Victor Soloveytchik, Section Registrar.
Decision of the Court
Article 8 (right to respect for family life)
The child G. had been raised by the applicant and C. after they had decided to start a family. They
had lived together from 2000 until their separation in May 2012. The Court noted that the ties which
had developed between the applicant and G. during the four and a half years they had lived together
constituted family life within the meaning of Article 8.
The Court found that the bond between the child and the applicant had been impaired not by a
decision or act of the public authority but as a result of the applicant’s separation from her former
partner. The domestic court had not abolished a visiting and staying contact right which the
applicant could have claimed in respect of the child, but had rejected the applicant’s application on
the basis of the second paragraph of Article 371-4 of the Civil Code, under which the family judge
was entitled to determine the arrangements for the maintaining of relations between a child and
persons other than his or her ascendants if that was in the child’s interest. The Court therefore
examined the case from the perspective of the positive obligation of States Parties to ensure that
persons within their jurisdiction enjoyed effective respect for their family life, rather than from the
perspective of their obligation not to interfere with the exercise of that right.
The Court reiterated that a fair balance had to be struck between the competing interests of the
individual and of society as a whole. The States Parties enjoyed a certain margin of appreciation,
which was broad where the public authorities had to strike a balance between competing private
and public interests or between different rights protected by the Convention. This had been the case
here, in particular since it was not only the right to respect for the applicant’s family life which had
been at stake, but also the principle of the best interests of the child, and the rights of both G. and
C., her former partner, under Article 8 of the Convention.
The Court observed that French law allowed a person who had developed a de facto family
relationship with a child to seek measures to preserve that relationship. The French legal framework
thus entitled the applicant to seek judicial review of the question whether she could preserve the
ties that she had developed with G., and she had duly made use of that remedy. The Court noted
that the Paris Court of Appeal had held that the child’s meetings with the applicant had been too
traumatic for him and that it was therefore not in his interest to pursue them. Its decision had
therefore been based on the child’s best interests.
3
The Court of Appeal had noted that G., a fragile child, had found himself in a traumatising and
guilt-ridden situation, at the centre of a conflict between the applicant and his biological mother,
who were unable to communicate with each other without being aggressive. It had also noted that
there was no smooth handover of the child from one to the other and that G. had been reluctant to
go to the applicant’s home. The Court could not call into question the conclusion that the Court of
Appeal had reached from these findings, namely that it was not in the child’s interest to continue
meeting the applicant.
The Court also noted the applicant’s complaint that the Court of Appeal had not taken account of
the documents she had produced and that it had relied exclusively on attestations from C.’s relatives
and on certificates of convenience, including those drawn up by a doctor for which he was
reprimanded by the Medical Association’s disciplinary board because they referred to facts which he
himself could not have known. However, there was nothing to suggest that the Paris Court of Appeal
had failed to take account of the evidence produced by the applicant. As to the certificates whose
reliability was in issue, the Government pointed out that it was clear from the Court of Appeal’s
judgment that it had not relied decisively on them.
As to the applicant’s view that the Paris Court of Appeal could have organised supervised meetings
between G. and herself, this was contradicted by the Court of Appeal’s finding that, because of the
particularly tense relations between the two women, putting the child in a traumatic situation, it
was not in the child’s interest to make arrangements for such contact between him and the
applicant.
The Court understood the distress that the applicant could have been caused by the situation at
issue and by the response of the Paris Court of Appeal. However, it was of the view that the
applicant’s rights could not take precedence over the best interests of the child.
Further having regard to the broad margin of appreciation afforded to the authorities in such
matters, the Court concluded that the respondent State had not failed to fulfil its positive obligation
to guarantee effective respect for the applicant’s right to respect for her family life.
There had therefore been no violation of Article 8 of the Convention.
The judgment is available only in French.
This press release is a document produced by the Registry. It does not bind the Court. Decisions,
judgments and further information about the Court can be found on http://www.echr.coe.int. To receive
the Court’s press releases, please subscribe here: http://www.echr.coe.int/RSS/en or follow us on Twitter
@ECHR_CEDH.
Press contacts
During the new lockdown, journalists can continue to contact the Press Unit via
echrpress@echr.coe.int
Denis Lambert
Tracey Turner-Tretz
Inci Ertekin
The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member
States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

USA: Federal appeals court rejects challenge to Harvard’s affirmative action policy

The US Court of Appeals for the First Circuit on Thursday rejected claims from a group representing Asian Americans arguing that Harvard’s affirmative action policy discriminated against them.

Students for Fair Admissions (SFFA) brought suit against Harvard in November 2014, challenging the college’s “race-conscious” undergraduate admission process as a violation of Title IV of the Civil Rights Act. The district court found that Harvard’s admission process did not violate Title IV and that SFFA lacked standing to bring their claims. The First Circuit found that SFFA had associational standing, but Harvard’s “race-conscious” admissions program did not violate Title IV.

In her opinion, Judge Sandra Lynch wrote that plaintiffs did not show that Harvard “treated members of one race differently and less favorably than members of another race and that the defendant did so with a racially discriminatory purpose.” In addition, she noted that Harvard’s consideration of race in its admissions program survives strict scrutiny. While Harvard’s use of race must further a compelling interest, the Supreme Court has held that “attaining student diversity may be a compelling interest.” Lynch opined that race is one piece of Harvard’s interest in diversity. It is considered as part of a broader effort to achieve exposure to widely diverse people, cultures, ideas, and viewpoints.” Further, Harvard’s use of race was narrowly tailored to achieve its goals.

Supreme Court precedent makes clear that the fact that Harvard’s application process is subjective is insufficient to overcome other evidence in the record that Harvard is nor biased against Asian Americans and does not stereotype them. First, there is no requirement that universities use entirely objective criteria when considering race to admit applicants. Harvard presented testimony from multiple admissions officers that its admission process, though subjective, did not facilitate bias or stereotyping. The nature of Harvard’s admissions process, as the district court recognized, offset any risk of bias. An applicant must secure a majority of votes at a full-body admission committee meeting with forty admissions officers to be admitted to Harvard, which mitigates the risk that any individual officer’s bias or stereotyping would affect Harvard’s admissions process.

An appeal to the US Supreme Court is expected.

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Germany: Higher Regional Court (Braunschweig) strengthens rights of lesbian life partner

After a relationship broke up, a woman did not want to allow her ex to have access to her children. The biological mother of the child lost in court.

Read: https://www.queer.de/detail.php?article_id=37512&pk_campaign=Nwsl

European Union: A new LGBTI+ equality strategy

Read: https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12410-LGBTI-equality

Norway bans hate speech against bisexual and transgender people

Read: https://www.pinknews.co.uk/2020/11/12/norway-transgender-bisexual-lgbt-hate-speech-parliament-penal-code/

Hungary drafts legislation to ban adoption for same-sex couples

The Hungarian government on Tuesday introduced legislation that would ban adoption for same-sex couples.

Under the new legislation, adoption will only be legal for same-sex couples if one partner applies as a single person. The legislation will only recognize families between married partners where the mother is a female, and the father is male.

Justice Minister Judit Varga submitted the amendment to parliament. Her party also submitted an amendment requiring children to be raised with a Christian interpretation of gender roles.

The new amendment follows Hungary’s March amendment to ban legal recognition of transgender and intersex citizens, only recognizing a person’s gender as the gender assigned at birth.

Hungary has increased its anti-LBGT sentiment during the pandemic, claiming the new laws protect children’s rights.

Human rights groups expressed their outrage, urging the government to repeal these new amendments.

“International human rights treaties that Hungary is party to clearly prohibit any forms of discrimination on the grounds of sex, gender orientation and sexual identity,” Amnesty International said in their statement. “Politicians, including the Speaker of the Parliament, and certain public figures have increasingly targeted LGBTI people with homophobic and discriminatory comments.”

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USA: Kansas Supreme Court rules to protect parental rights of same-sex couples

The Kansas Supreme Court ruled in two decisions on Friday that Kansas state law will recognize same-sex couples as parents when they have a child together. The court held that under the Kansas Parentage Act (KPA), a woman may establish parental rights by acknowledging maternity at the time of the child’s birth.

The cases, In re M.F. and In re W.L., were both filed by women whose same-sex partners had conceived through artificial insemination. The women sought to establish parentage after their relationships with their former partners had fallen apart. In both cases, the women had not married, and they did not have written or oral co-parenting agreements. Lower courts ruled in both cases that the women had no parental rights. Both women appealed the lower courts’ decisions to the Kansas Supreme Court.

In reversing the lower courts’ decisions, the state Supreme Court held that a woman seeking to establish parenthood “need not show the existence of a written or oral coparenting agreement between her and the birth mother.” Instead, “[s]he need only show she has notoriously recognized maternity and the rights and duties attendant to it at the time of the child’s birth.” The court also stated that there must be evidence that “the birth mother, at the time of the child’s birth, consented to share her due process right to decision-making about her child’s care, custody, and control with the woman who is claiming parentage.”

The court recognized in its ruling that the KPA supports the idea that a non-biological parent may be treated in law as the biological parent. The court noted that “[s]hifting parenthood based on actual biology alone could be detrimental to the emotional and physical wellbeing of any child.” The court emphasized that it is at the moment of birth when state law deems a child to have either one parent or two. Therefore, the court said, “a demand that each individual have made up her mind as of the time of the baby’s arrival incentivizes stability for that child.”

Judge Caleb Stegall dissented from the opinions, writing that the majority’s ruling suggests that a woman’s legal status as a parent can be established by “mere declaration” and a “showing of implicit proof by circumstantial evidence.”

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Verwaltungsgericht ZH: Polizei hat Dunkelhäutigen zu Unrecht kontrolliert (Profiling)

Beschwerde eines Hochschulangestellten wird gutgeheissen – Frage, ob Diskriminierung vorliegt, bleibt offen

Alois Feusi

Mehr als ein halbes Jahrzehnt hat sich ein heute 46-jähriger Hochschulangestellter gegen eine Busse wegen Nichtbefolgens polizeilicher Anordnungen gewehrt. Nun hat er vor dem Verwaltungsgericht des Kantons Zürich recht bekommen.

Langer Weg durch Instanzen

Der Grund für das fünfjährige juristische Hin und Her: Ein Angehöriger einer dreiköpfigen Patrouille der Zürcher Stadtpolizei hatte den dunkelhäutigen Schweizer an einem Donnerstagmorgen im Februar 2015 kurz nach 7 Uhr in der Halle des Hauptbahnhofs Zürich angehalten und seine Ausweispapiere verlangt. Der Mann wehrte sich gegen die Identitätskontrolle, weil deren Grund seiner Ansicht nach einzig seine Hautfarbe gewesen sei – eine Behandlung, die ihm regelmässig widerfahre, obwohl er Schweizer Bürger sei.

Im Anschluss an jene Kontrolle erliess der Stadtrichter einen Strafbefehl mit einer Busse von 100 Franken wegen Nichtbefolgens polizeilicher Anordnungen. Der Beschuldigte erhob Einsprache beim Stadtrichteramt und begründete diese mit der Widerrechtlichkeit der Personenkontrolle.

Nach Abschluss des Beweisverfahrens mit der Anhörung des Beschuldigten und der Befragung jenes Polizisten, der den Rapport ausgefüllt hatte, bestätigte das Bezirksgericht Zürich die Strafe, ebenso wie später das Obergericht. Via Bundesgericht war der Fall schliesslich beim Verwaltungsgericht des Kantons Zürich gelandet, das den Entscheid nun korrigierte.

Der rapportierende Polizist hatte bei seiner Befragung ausgesagt, dass der Mann den Eindruck gemacht habe, als ob er beim Vorbeigehen im morgendlichen Pendlerstrom um die drei etwas auseinander stehenden Uniformierten einen Bogen habe machen wollen. In seinem Rapport hatte der Beamte zudem festgehalten, dass der Beschwerdeführer seinen Blick abgewendet habe. Aufgrund dieses Verhaltens des Mannes habe er vermutet, dass er vielleicht etwas zu verbergen habe. Das sei für ihn ausschlaggebend für eine Kontrolle gewesen.

Dies genügte dem Verwaltungsgericht nicht als Rechtfertigung. Auch unter der Berücksichtigung der Tatsache, dass der Hauptbahnhof ein Ort sei, wo vermehrt mit Straftaten zu rechnen sei, reiche das blosse Abwenden des Blicks – ungeachtet der Hautfarbe – nicht, um eine Identitätskontrolle auszulösen.

Ein alter Vorwurf

Dass Dunkelhäutige schneller als Verdächtige gälten und nach dem Prinzip des «racial profiling» überdurchschnittlich oft kontrolliert würden, ist ein Vorwurf, dem sich die Stadtpolizei immer wieder ausgesetzt sieht. Der damalige Sicherheitsvorstand, Richard Wolff, liess deshalb 2017 die Arbeit der Stadtpolizei vom Schweizerischen Kompetenzzentrum für Menschenrechte untersuchen. Dieses kam zum Schluss, dass es in Zürich keine systematischen rassistischen Kontrollen gebe, wie Wolff im November jenes Jahres an einer Medienkonferenz erklärte.

Um faire Kontrollen zu garantieren, definierte die Stadtpolizei trotzdem neue Kriterien für Kontrollen. So müssen die Polizisten den Kontrollierten die Gründe für die Überprüfung nennen. Ausserdem wurde im Februar 2018 eine Web-Applikation eingeführt, welche die statistische Auswertung von Personenkontrollen ermöglicht.

Die Frage, ob die Kontrolle des heute 46-jährigen Schweizers aufgrund seiner Hautfarbe eine Diskriminierung und damit ein Fall von «racial profiling» gewesen sei, lässt das Urteil des Verwaltungsgerichts allerdings offen. Die Beschwerde, mit der die Feststellung der Rechtswidrigkeit des polizeilichen Vorgehens verlangt worden sei, sei ohnehin vollumfänglich gutzuheissen. Es müsse deshalb nicht mehr geprüft werden, ob eine Diskriminierung aufgrund der Hautfarbe vorliege.

Urteil VB2020.00014 vom 1. 10. 2020; noch nicht rechtsgültig.

Aus dem NZZ-E-Paper vom 05.11.2020