This is a blog is related to my academic work in the International Academic Forum on SOGIESC Law but meant to serve anyone who wants to contribute to improve the protection of human rights worldwide. It is intended to keep interested readers informed about legal developments relating to sexual orientation, gender expression and identity and sex characteristics (SOGIESC). Hopefully, it will make it easier to find correct legal information about the developments in all regions of the world and, in particular, with regard to international law.
USA: Trump administration removes protection for LGBTQ people in health care
The Trump Administration finalized a rule on Friday, which rolls back protections for LGBTQ people regarding health insurance and healthcare by changing the definition of “sex.”
The Department of Health and Human Services (HHS) stated in a press release that “HHS will enforce Section 1557 by returning to the government’s interpretation of sex discrimination according to the plain meaning of the word “sex” as male or female and as determined by biology.”
Formerly, Section 1557 of the Affordable Care Act defined “sex” in a way that protected people from discrimination based on gender identity and sexual orientation. The government’s new interpretation of the meaning of “sex” as male or female “as determined by biology” eliminates those protections.
The rule change will also significantly affect access to healthcare and health insurance. It will allow providers to deny service based on sexual orientation or gender identity and could drastically limit insurance coverage. These changes are especially notable considering the current pandemic and the pursuant necessity for many to seek medical care.
The Supreme Court is set to rule soon on two cases regarding the meaning of “sex” in employment discrimination. Those rulings may lay the groundwork for future lawsuits over the meaning of “sex” in Section 1557 or make such challenges even more difficult.
Switzerland: Second Instance Court confirms that social mother in same-sex partnership must pay child support after separation
The Bernese High Court has upheld on 26 February 2020 the respective parts of an earlier decision by the local court in Bern of 31 May 2019 – as reported here:
This decision is particularly interesting as Parliament currently discusses the status of the second woman (spouse) in a same-sex marriage when children were conceived through sperm donation by the biological mother.
Switzerland: One Chamber of Parliament makes it easier to change one’s official sex in registry (but children need parental consent) The vote was 31:14. The new rule would allow a civil servant to take the decision instead of a judge following a judicial procedures as it is the case now. Some NGOs fear however, that […]
The Second Section of the European Court of Human Rights has published its decision in the case of Carl Jóhann Lilliendahl v Iceland, in which it unanimously declared the application inadmissible.
The case, brought by a 74-year-old man, concerns a conviction in Iceland for anti-gay expression.
The facts In April 2015, the municipal council of the town of Hafnarfjörður, Iceland, approved a proposal to strengthen education and counselling in elementary and secondary schools on matters concerning those who identify themselves as lesbian, gay, bisexual or transgender. This was to be done in cooperation with the national LGBT association, Samtökin ‘78. The decision was reported in the news and led to substantial public discussion, including on the radio station Ú.S. and on a subsequent online news article where one of the initiators of the proposal, Mr. Ó.S.Ó., criticised the radio show for what he described as allowing people to phone in and express “clear prejudice and hate speech” without criticism from the show’s host. Mr Lilliendahl, the applicant in this case, wrote the following online comments in response to hearing the announcement: We listeners of [Ú.S.] have no interest in any [expletive] explanation of this kynvilla [derogatory word for homosexuality, literally ‘sexual deviation’] from [Ó.S.Ó.]. This is disgusting. To indoctrinate children with how kynvillingar [literally ‘sexual deviants’] eðla sig [‘copulate’, primarily used for animals] in bed. [Ó.S.Ó.] can therefore stay at home, rather than intrude upon [Ú.S.]. How disgusting. Samtökin ‘78 reported Mr Lilliendahl’s comments to the Reykjavík Metropolitan Police, claiming it violated Article 233(a) of the General Penal Code No.19/1940 which states:Anyone who publicly mocks, defames, denigrates or threatens a person or group of persons by comments or expressions of another nature, for example by means of pictures or symbols, for their … sexual orientation … or disseminates such materials, shall be fined or imprisoned for up to 2 years. In December 2017, the Supreme Court, overturning a judgment of the District Court, convicted Mr Lilliendahl, sentencing him to a fine of 100,000 Icelandic krónur (approximately 800 euros at the time).Complaints to the Court Mr Lilliendahl complained under Article 10 of the Convention that his conviction had violated his freedom of expression. Furthermore, Mr Lilliendahl complained under Article 14 in conjunction with Article 10 that he did not enjoy freedom of expression equally to persons with other opinions. Decision of the Court Article 17 Before considering Mr Lilliendahl’s complaints, the Court considered whether it should dismiss the application on the grounds that it was incompatible with Article 17 of the Convention. Article 17 was potentially applicable because it provides: Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention. The question for the Court was whether Mr Lilliendahl’s statements sought to stir up hatred or violence and whether, by making them, he attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it. To answer this question the Court relied upon its judgment in Perinçek v Switzerland (§ 114) in which it held that Article 17 is only applicable on an exceptional basis and in extreme cases and, in cases concerning Article 10, it should only be resorted to if it is immediately clear that the impugned statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention. The Court decided that Mr Lilliendahl’s statement could not be said to reach the high threshold for applicability of Article 17. The Court stated: Although the comments were highly prejudicial … it is not immediately clear that they aimed at inciting violence and hatred or destroying the rights and freedoms protected by the Convention (§ 26). On this basis, Mr Lilliendahl could invoke Article 10 and the Court was required to decide whether his conviction was compliant with it.
Article 10 The Court recognized that Mr Lilliendahl’s conviction undoubtedly constituted an interference with his freedom of expression, that the restriction placed on him was prescribed by law, and pursued the legitimate aim of protecting the rights of others. In considering whether the restriction was necessary in a democratic society, the Court examined the reasoning of the Supreme Court of Iceland that had convicted Mr Lilliendahl and concluded that it had taken into account the Court’s relevant case-law and acted within its margin of appreciation. Furthermore, the Supreme Court’s assessment of the nature and severity of the comments was not manifestly unreasonable and it had adequately balanced Mr Lilliendahl’s personal interests against the more general public interest in the case encompassing the rights of gender and sexual minorities.
Recalling the principle of subsidiarity – which means that it is not for the Court to substitute its own assessment of the merits for that of the Supreme Court – the Court could find no strong reasons to reach a different conclusion to the national authorities.
The Court therefore decided that the complaint under Article 10 was manifestly ill-founded and rejected it. Article 14 The Court reached the same conclusion in respect of Mr Lilliendahl’s complaint under Article 14 in conjunction with Article 10 deciding that, there being no appearance of a violation of these provisions, the complaint was manifestly ill-founded and rejected it.
Comment The most striking aspect of the Court’s decision is its approach to considering the expression of “hatred” against people on the grounds of sexual orientation.
The Court appears to have developed its approach to how it designates “hate speech” directed at sexual minorities. Eight years ago, in a case very similar to this one, the Court described anti-gay expression as “serious and prejudicial allegations” but stopped short of describing it as “hate speech” (Vejdeland v Sweden, § 54). The Court has now clarified its position on hatred, stating that it now recognizes that “hate speech” falls into two categories: the first category is the gravest forms of hate speech, which the Court considers to fall under Article 17 and are excluded entirely from the protection of Article 10; the second category is comprised of “less grave” forms of hate speech which the Court does not consider to fall entirely outside the protection of Article 10, but which it considers permissible for the Contracting States to restrict. Applying this categorisation to the case, the Court agreed with the Supreme Court’s assessment that Mr Lilliendahl’s comments were “serious, severely hurtful and prejudicial” and, as such, fell clearly under the second category of “hate speech”. The clear designation of Mr Lilliendahl’s comments as “hate speech” is to be welcomed. As the Court noted, Mr Lilliendahl was promoting “intolerance and detestation of homosexual persons” (§ 38) and, therefore, it is appropriate to describe this explicitly as “hate”.
From a case law perspective, this decisively moves the Court’s jurisprudence beyond the Vejdeland judgment, which created uncertainty as to whether anti-gay expression was, in fact, hate speech and raised questions about whether it should be treated as such for the purposes of examining freedom of expression claims under the Convention.
The Court has also moved beyond the Vejdeland judgment in another important way by stating that, whilst Mr Lilliendahl’s comments were made “as a member of the general public not expressing himself from a prominent platform likely to reach a wide audience”, and “not directed, in particular, at vulnerable groups or persons”, his comments still amounted to “hate speech” (§ 39). This decisively moves the Court beyond the position established in Vejdeland in which the manner of delivery of anti-gay expression was central to classifying it and, ultimately, determining whether it received the protection of Article 10. What is less welcome is the Court’s decision not to place Mr Lilliendahl’s comments in the first category of hate speech. I am not convinced by the Court’s conclusion that Mr Lilliendahl’s comments should not be classified as a “grave” form of hate speech that should fall under Article 17 and, as a consequence, outside of the sphere of protection which the Convention offers. In my view, Mr Lilliendahl’s comments could be argued to constitute an extremely grave form of hatred against gay people. Mr Lilliendahl described homosexuality as sexual deviation akin to sex between non-human animals, and any public discussion of it to be disgusting and an indoctrination of children. As such, it could plausibly be argued that Mr Lilliendahl’s use of Article 10, to defend his statements, was an attempt to, as the Court would put it, “deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention”. In other words, Mr Lilliendahl could be said to be attempting to use Article 10 to allow him to destroy or limit the rights and freedoms of others and, in accordance with Article 17, should not be able to invoke Article 10 to protect himself. Obviously, one of the oldest established principles of the Court is that freedom of expression constitutes one of the essential foundations of a democratic society and “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population” – these are the “demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society'” (Handyside v the United Kingdom, § 49). However, the Court has also held that the “abuse of freedom of expression is incompatible with democracy and human rights and infringes the rights of others” (Witzsch v Germany).
Clearly, the Court must carefully search for where the line is drawn between the right to freedom of expression and expression deemed to be an abuse of that freedom. In my view, if a person is describing gay people in the way Mr Lilliendahl did, they are engaging in expression which is not merely offensive, shocking or disturbing but is actually destructive of the rights of others.
My view is that the Court needs to more robustly justify why it does not consider statements like those made by Mr Lilliendahl to constitute the most grave forms of hatred. We live in a time when, by virtue of mass communication and social media, gay people are, on a daily basis, described in the terms that Mr Lilliendahl used, as sub-human animals. The widespread prevalence of such claims, and the fact that they are commonplace in European societies, should not result in them being accepted as low grade hate speech. Such claims, on the contrary, are a key way in which endemic homophobia is sustained and gay people are routinely excluded from fully participating in society.
The Court is now obviously prepared to decisively reject Article 10 claims by those who engage in anti-gay hate speech, and it is noteworthy that it has done so in this case at the admissibility stage, thereby denying Mr Lilliendahl a full consideration of the merits. But why not take the next step and declare, under Article 17, that Mr Lilliendahl was, in fact, using Article 10 as a cloak to protect himself and his ambition to limit the rights and freedoms of gay people?
This is not a narrow legal point. If the Court took a much stronger approach to classifying anti-gay speech as hatred that cannot attract the protection of Article 10, this would encourage Contracting States to more robustly regulate such speech.
The Second Section of the European Court of Human Rights has published its decision in the case of Carl Jóhann Lilliendahl v Iceland, in which it unanimously declared the application inadmissible.
The case, brought by a 74-year-old man, concerns a conviction in Iceland for anti-gay expression. The facts In April 2015, the municipal council of the town of Hafnarfjörður, Iceland, approved a proposal to strengthen education and counselling in elementary and secondary schools on matters concerning those who identify themselves as lesbian, gay, bisexual or transgender. This was to be done in cooperation with the national LGBT association, Samtökin ‘78. The decision was reported in the news and led to substantial public discussion, including on the radio station Ú.S. and on a subsequent online news article where one of the initiators of the proposal, Mr. Ó.S.Ó., criticised the radio show for what he described as allowing people to phone in and express “clear prejudice and hate speech” without criticism from the show’s host. Mr Lilliendahl, the applicant in this case, wrote the following online comments in response to hearing the announcement: We listeners of [Ú.S.] have no interest in any [expletive] explanation of this kynvilla [derogatory word for homosexuality, literally ‘sexual deviation’] from [Ó.S.Ó.]. This is disgusting. To indoctrinate children with how kynvillingar [literally ‘sexual deviants’] eðla sig [‘copulate’, primarily used for animals] in bed. [Ó.S.Ó.] can therefore stay at home, rather than intrude upon [Ú.S.]. How disgusting. Samtökin ‘78 reported Mr Lilliendahl’s comments to the Reykjavík Metropolitan Police, claiming it violated Article 233(a) of the General Penal Code No.19/1940 which states:Anyone who publicly mocks, defames, denigrates or threatens a person or group of persons by comments or expressions of another nature, for example by means of pictures or symbols, for their … sexual orientation … or disseminates such materials, shall be fined or imprisoned for up to 2 years. In December 2017, the Supreme Court, overturning a judgment of the District Court, convicted Mr Lilliendahl, sentencing him to a fine of 100,000 Icelandic krónur (approximately 800 euros at the time).Complaints to the Court Mr Lilliendahl complained under Article 10 of the Convention that his conviction had violated his freedom of expression. Furthermore, Mr Lilliendahl complained under Article 14 in conjunction with Article 10 that he did not enjoy freedom of expression equally to persons with other opinions. Decision of the Court Article 17 Before considering Mr Lilliendahl’s complaints, the Court considered whether it should dismiss the application on the grounds that it was incompatible with Article 17 of the Convention. Article 17 was potentially applicable because it provides: Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention. The question for the Court was whether Mr Lilliendahl’s statements sought to stir up hatred or violence and whether, by making them, he attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it. To answer this question the Court relied upon its judgment in Perinçek v Switzerland (§ 114) in which it held that Article 17 is only applicable on an exceptional basis and in extreme cases and, in cases concerning Article 10, it should only be resorted to if it is immediately clear that the impugned statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention. The Court decided that Mr Lilliendahl’s statement could not be said to reach the high threshold for applicability of Article 17. The Court stated: Although the comments were highly prejudicial … it is not immediately clear that they aimed at inciting violence and hatred or destroying the rights and freedoms protected by the Convention (§ 26). On this basis, Mr Lilliendahl could invoke Article 10 and the Court was required to decide whether his conviction was compliant with it.
Article 10 The Court recognized that Mr Lilliendahl’s conviction undoubtedly constituted an interference with his freedom of expression, that the restriction placed on him was prescribed by law, and pursued the legitimate aim of protecting the rights of others. In considering whether the restriction was necessary in a democratic society, the Court examined the reasoning of the Supreme Court of Iceland that had convicted Mr Lilliendahl and concluded that it had taken into account the Court’s relevant case-law and acted within its margin of appreciation. Furthermore, the Supreme Court’s assessment of the nature and severity of the comments was not manifestly unreasonable and it had adequately balanced Mr Lilliendahl’s personal interests against the more general public interest in the case encompassing the rights of gender and sexual minorities.
Recalling the principle of subsidiarity – which means that it is not for the Court to substitute its own assessment of the merits for that of the Supreme Court – the Court could find no strong reasons to reach a different conclusion to the national authorities.
The Court therefore decided that the complaint under Article 10 was manifestly ill-founded and rejected it. Article 14 The Court reached the same conclusion in respect of Mr Lilliendahl’s complaint under Article 14 in conjunction with Article 10 deciding that, there being no appearance of a violation of these provisions, the complaint was manifestly ill-founded and rejected it.
Comment The most striking aspect of the Court’s decision is its approach to considering the expression of “hatred” against people on the grounds of sexual orientation.
The Court appears to have developed its approach to how it designates “hate speech” directed at sexual minorities. Eight years ago, in a case very similar to this one, the Court described anti-gay expression as “serious and prejudicial allegations” but stopped short of describing it as “hate speech” (Vejdeland v Sweden, § 54). The Court has now clarified its position on hatred, stating that it now recognizes that “hate speech” falls into two categories: the first category is the gravest forms of hate speech, which the Court considers to fall under Article 17 and are excluded entirely from the protection of Article 10; the second category is comprised of “less grave” forms of hate speech which the Court does not consider to fall entirely outside the protection of Article 10, but which it considers permissible for the Contracting States to restrict. Applying this categorisation to the case, the Court agreed with the Supreme Court’s assessment that Mr Lilliendahl’s comments were “serious, severely hurtful and prejudicial” and, as such, fell clearly under the second category of “hate speech”. The clear designation of Mr Lilliendahl’s comments as “hate speech” is to be welcomed. As the Court noted, Mr Lilliendahl was promoting “intolerance and detestation of homosexual persons” (§ 38) and, therefore, it is appropriate to describe this explicitly as “hate”.
From a case law perspective, this decisively moves the Court’s jurisprudence beyond the Vejdeland judgment, which created uncertainty as to whether anti-gay expression was, in fact, hate speech and raised questions about whether it should be treated as such for the purposes of examining freedom of expression claims under the Convention.
The Court has also moved beyond the Vejdeland judgment in another important way by stating that, whilst Mr Lilliendahl’s comments were made “as a member of the general public not expressing himself from a prominent platform likely to reach a wide audience”, and “not directed, in particular, at vulnerable groups or persons”, his comments still amounted to “hate speech” (§ 39). This decisively moves the Court beyond the position established in Vejdeland in which the manner of delivery of anti-gay expression was central to classifying it and, ultimately, determining whether it received the protection of Article 10. What is less welcome is the Court’s decision not to place Mr Lilliendahl’s comments in the first category of hate speech. I am not convinced by the Court’s conclusion that Mr Lilliendahl’s comments should not be classified as a “grave” form of hate speech that should fall under Article 17 and, as a consequence, outside of the sphere of protection which the Convention offers. In my view, Mr Lilliendahl’s comments could be argued to constitute an extremely grave form of hatred against gay people. Mr Lilliendahl described homosexuality as sexual deviation akin to sex between non-human animals, and any public discussion of it to be disgusting and an indoctrination of children. As such, it could plausibly be argued that Mr Lilliendahl’s use of Article 10, to defend his statements, was an attempt to, as the Court would put it, “deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention”. In other words, Mr Lilliendahl could be said to be attempting to use Article 10 to allow him to destroy or limit the rights and freedoms of others and, in accordance with Article 17, should not be able to invoke Article 10 to protect himself. Obviously, one of the oldest established principles of the Court is that freedom of expression constitutes one of the essential foundations of a democratic society and “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population” – these are the “demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society'” (Handyside v the United Kingdom, § 49). However, the Court has also held that the “abuse of freedom of expression is incompatible with democracy and human rights and infringes the rights of others” (Witzsch v Germany).
Clearly, the Court must carefully search for where the line is drawn between the right to freedom of expression and expression deemed to be an abuse of that freedom. In my view, if a person is describing gay people in the way Mr Lilliendahl did, they are engaging in expression which is not merely offensive, shocking or disturbing but is actually destructive of the rights of others.
My view is that the Court needs to more robustly justify why it does not consider statements like those made by Mr Lilliendahl to constitute the most grave forms of hatred. We live in a time when, by virtue of mass communication and social media, gay people are, on a daily basis, described in the terms that Mr Lilliendahl used, as sub-human animals. The widespread prevalence of such claims, and the fact that they are commonplace in European societies, should not result in them being accepted as low grade hate speech. Such claims, on the contrary, are a key way in which endemic homophobia is sustained and gay people are routinely excluded from fully participating in society.
The Court is now obviously prepared to decisively reject Article 10 claims by those who engage in anti-gay hate speech, and it is noteworthy that it has done so in this case at the admissibility stage, thereby denying Mr Lilliendahl a full consideration of the merits. But why not take the next step and declare, under Article 17, that Mr Lilliendahl was, in fact, using Article 10 as a cloak to protect himself and his ambition to limit the rights and freedoms of gay people?
This is not a narrow legal point. If the Court took a much stronger approach to classifying anti-gay speech as hatred that cannot attract the protection of Article 10, this would encourage Contracting States to more robustly regulate such speech.
Switzerland inches closer to marriage equality and same-sex adoption as one chamber of parliament backs crucial bill
The second chamber (which is composed of more conservative membres) still has to agree. Conservative right-wing parties have announced that they will collect signatures to ask for a popular vote (50’000 are needed).
The major debate is on the inclusion of access to sperm donation by Lesbian Couples. I (and others) had written that this is in line with our Constitution and the ECHR. These legal arguments were not of major importance in the Parliamentary debates though (unsurprisingly).
Switzerland has moved a step closer to same-sex marriage (Pexels)
Switzerland has inched closer to marriage equality and same-sex parenting after the country’s National Council approved draft legislation.
The Marriage for All bill won broad support across the political spectrum in Switzerland, which currently has civil partnerships.
Just one party opposed the bill – the right-wing Swiss People’s Party – however, the Christian Democratic Party said it would only support the legislation if sperm donation for lesbian couples was excluded.
The lower house of parliament voted in favour of the draft legislation yesterday, according to TheLocal.
The bill was passed by 132 to 52 votes, with 13 abstentions. It will now go to the upper house for a vote.
The marriage bill in Switzerland will also give same-sex couples adoption rights.
If it is passed, the bill will guarantee the right to marry regardless of gender in Switzerland – but there are a number of other benefits attached too.
The bill would also allow female same-sex couples to access sperm donation and would allow all same-sex couples to jointly adopt children.
However, campaigners have warned that the battle is not yet won for marriage equality.
While the legislation has won broad political support, it has a potentially arduous road ahead before it can become law.
The bill will next go to the Council of States, the upper house of parliament in Switzerland, and they are not expected to vote on it until after summer.
The bill will most likely have to go to a public vote.
Furthermore, if it is approved by the upper house, the bill will then be put to the people in the form of a referendum (if 50’000 signatures are collected to ask for the vote), The Local reports.
A referendum date cannot be set until the upper house has approved the legislation.
Switzerland’s minister for justice Karin Keller-Sutter expressed her support for the bill, saying the law “should be revised in stages and same-sex marriage introduced as soon as possible”.
The move comes just months after the people of Switzerland voted in favour of an anti-homophobia bill.
The country went to the polls in February of this year to vote to outlaw discrimination and hatred based on sexual orientation.
Switzerland has typically lagged behind on LGBT+ rights, however campaigners in the country are hopeful that progress could be on the horizon.
Interesting Exhibition at the Emigration Museum in Hamburg: Homosexuality as a reason for flight or emigration Verfolgung wegen der sexuellen Orientierung gehört zu den Gründen, warum Menschen ihre Heimat verlassen. Erniedrigung, gesellschaftliche Stigmatisierung, Folter oder Tod drohen ihnen. Letzter Ausweg ist die Flucht und damit die Auswanderung. Zusammen mit der Initiative Rainbow Refugees (Stories) gibt […]
Japan court rejects same-sex relationships as de facto marriages, denying man victims’ compensation
The Nagoya District Court on Thursday rejected a man’s request to overturn a decision deeming him ineligible for victims’ compensation following the death of his same-sex partner.
The man, Yasuhide Uchiyama, had lived with his partner for around 20 years. After his partner was murdered in 2014, Uchiyama filed for victims’ compensation in December 2016. However, the Aichi Prefectural Public Safety Commission rejected the application on the basis that Uchiyama’s relationship was a same-sex relationship.
On Thursday, Presiding Judge Masatake Kakutani did not recognize same-sex relationships as de facto marriages. This continues to prevent Uchiyama from being eligible for victims’ compensation as a surviving family member.
The European Commission intervenes on “LGBT-free” zones in Poland
The letter from the European Commission is a confirmation that the homophobic resolutions passed by local governments in Poland have legal consequences, violate the rights of their residents, and should conform to EU values. It also opens the way to EU funds being blocked – right now
The addressees of the European Commission’s letter are the marshals (wojewodowie) of five provinces (voivodships, województwa) that have adopted anti-LGBT resolutions or their equivalent, i.e. the homophobic ‘Local Government Charter on the Rights of the Family’ drawn up by an NGO Ordo Iuris. These are the Lublin, Łódź, Malopolskie, Podkarpackie and Świętokrzyskie provinces.
What does the Commission want? In short: for the provincial governors (wojewodowie) to check whether the money from the EU’s cohesion policy is actually being spent in violation of European regulations.
This mainly concerns Art. 2 of the European Union Treaty, which speaks of the values on which the Community is founded:
respect for human dignity;
freedom, democracy, equality, the rule of law,
and respect for human rights, including the rights of persons belonging to minorities.
“These values are common to the Member States in a society based on pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men.”
The obligation to combat discrimination based on sex, race or ethnic origin, religion or belief, disability, age or sexual orientation is also included in art. 7 of the Regulation on EU funds dating from 2013. Moreover, the preventive actions to which the beneficiaries of EU funds are obliged are explicitly included in the partnership agreement, and include both investments and programmes run by local authorities, as well as soft activities accompanying them, such as ‘communication’.
In the opinion of the European Commission, the adoption by some Polish local governments of homophobic documents, which reduces the LGBT community to an ‘ideology’, calls into question the regional institutions’ ability to implement the principle of non-discrimination.
“In addition, there is a risk that the beneficiaries of the funds (…) will discriminate against the LGBT community in their activities,” writes the European Commission, instructing the provincial governors to investigate the matter.
“We cannot be full members of the EU if we exclude some of our citizens.”
Why is this letter so important?
First of all, this is not just another commentary expressing moral indignation; rather it is a specific intervention.
Anna Błaszczak-Banasiak, a lawyer of the Commissioner for Human Rights’ Office says the EC’s position confirms that the anti-LGBT resolutions, regardless of their form, directly affect the lives of citizens.
“In the Commissioner’s opinion, the EC’s letter embodies the principle of non-discrimination as a fundamental principle of the European Union. In other words, we cannot be full members of the community if we fail to apply the principle of equal treatment and exclude some of our citizens from social life.”
The local governments that adopted the homophobic documents have defended themselves by claiming that they did not exclude LGBT people, but were only protesting against a harmful ‘ideology’, or promoting the values of the traditional family.
“I’m glad that the Commission has confirmed the arguments of the Commissioner, who emphasised from the beginning that this was not about ideology or beliefs, but about living people,” commented Błaszczyk-Banasiak.
Local governments may lose EU funds straight away
The EC’s position thus clearly demonstrates that the anti-LGBT resolutions have legal consequences, are in conflict with EU regulations, and that the Polish institutions which should defend them have been neglecting their duties. But the most revolutionary matter is the threat that the joint funding might be lost.
Now, the European Commission has shown that the consequences of compromising EU values can even be borne today.
“And that would be the worst possible news if it seems that any self-government has lost EU funding due to the ill-considered actions they carried out during the course of the election campaign,” says Anna Błaszczak-Banasiak.
This is a clear signal to those local governments that have adopted homophobic resolutions that their actions are not neutral, and the European community is not only a collection of rights and benefits, but also of obligations which must be fulfilled. And if they aren’t, then the money to renovate historic parts of the city, a new sewage system or a road may run out.
Pressure on local authorities is not just defensive in nature. It is not just about whether the provincial governors will check to see whether the funds are spent in accordance with the law, but whether they also take active measures aimed at preventing discrimination.
The Commissioner has appealed against 9 resolutions to administrative courts
The Commission’s letter coincides with the position adopted by the European Parliament, which in December 2019 called on the Polish authorities to repeal homophobic resolutions by administrative means, i.e. via the provincial governor (wojewoda) or the administrative courts. The Parliament also urged the EC to verify whether the local governments that adopted anti-LGBT resolutions and still collect money from the EU are using it for purposes that violate human rights and the principle of equal treatment.
“Since the expected action has not been taken after the resolution by the European Parliament in December, which indicated that member states are obliged to uphold the fundamental rights enshrined in the EU Treaties, the Commission has naturally taken further steps. We hope that the local governments will come to their senses, and that this statement will contribute to the immediate revocation of the resolutions,” says Justyna Nakielska from the Campaign Against Homophobia.
Also in December 2019, the Polish Commissioner for Human Rights appealed against the nine most flagrant resolutions to the administrative courts. However, as Anna Błaszczak-Banasiak explained, the legal status in Poland is more complex.
The local communes (gminy) are trying to show that the resolutions do not affect the residents’ subjective rights. On the other hand, the Commissioner accuses the local governments of failing to comply with the legalist principle expressed in Art. 7 of the Constitution. “Our basic complaint is therefore a formal one. We want to demonstrate that the local governments have exceeded the scope of their competence when adopting these documents. We must remember that these are precedential proceedings; we are waiting patiently for the first decisions to be handed down.”
Pressure from the partner regions
The withdrawal of EU funds would be the most severe loss for the local governments that have passed the homophobic laws. So far, some municipalities or provinces have – temporarily – lost their partnership agreements with foreign regions. Some of this happened after the intervention of OKO.press, which in February 2020 sent information on the local authorities’ activities to 52 partner regions around Europe.
So far, none of the local governments have withdrawn the resolutions. Kraśnik came the closest; after losing its partnership with Nogent-sur-Oise in France, it is still debating the future of the document.
The first of the so-called ‘LGBT-free’ zones was established on 26 March 2019 in Świdnik (in the Lublin voivodeship). Since then, similar documents in various forms have been adopted by over 80 local government units.
The Fourth Section of the European Court of Human Rights has communicated the case of S.K.K. and A.C.G. and Others v Romania. The case is brought by eight same-sex couples and concerns the lack of legal recognition of their relationships.
Romania does not permit same-sex couples to marry or enter into a civil union/registered partnership (see ILGA-Europe’s country report for a history of recent attempts to challenge this).
Complaints to the Court The applicants complain that Romanian domestic legislation does not allow them to get married or to enter into any other type of civil union and, therefore, that they are being discriminated against on the grounds of their sexual orientation and being disadvantaged by the lack of legal recognition of their relationships.
The applicants rely on Article 8 (right to respect for private and family life) taken alone and in conjunction with Article 14 (prohibition of discrimination) of the Convention.
Questions to the Parties The Court has asked the parties the following questions:
1. Has there been a violation of the applicants’ right to respect for their private and family life contrary to Article 8 of the Convention? In particular, should they be afforded a possibility to have their relationship recognised by law (see Oliari and Others v Italy, 21 July 2015)?
2. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their sexual orientation, contrary to Article 14 read in conjunction with Article 8 of the Convention, in respect of their inability to get married or enter into any other type of legally recognised union? Some initial observations It is striking that the applicants do not appear to invoke Article 12 of the Convention (right to marry) even though they explicitly complain that Romanian law does not permit them to marry.
The Court has similarly not asked the parties to reflect on Article 12 even though it has asked a question explicitly related to the applicants’ “inability to get married”. Asking a question about the inability to marry in relation to Article 14 taken in conjunction with Article 8 of the Convention is odd given that the Court has already established that these Articles do not impose an obligation on a state to grant same-sex couples access to marriage (Schalk and Kopf, 24 June 2010, § 101). The fact that neither the applicants nor the Court is directly addressing the inability of the couples to marry under Article 12 of the Convention is disappointing but unsurprising. The Court has made no progress towards realising the right of same-sex couples to marry and its jurisprudence has established that, in practical and effective terms, Article 12 is inapplicable to same-sex couples. Although, sadly, Article 12 appears useless to same-sex couples excluded from marriage it is important to continue to press the Court to change its position on this aspect of the Convention rights of gay people.
It would appear that the focus of the case will be on whether Romania is under an obligation to provide same-sex couples with access to a form of relationship recognition other than marriage – such as registered partnership.
In considering whether Romania is under a positive obligation to provide same-sex couples with access to legal relationship recognition the key jurisprudence of the Court is found in its judgment in Oliari and Others v Italy (21 July 2015 – for a discussion, see here) in which it held that the Italian government had “failed to fulfil their positive obligation to ensure that [individuals] have available a specific legal framework providing for the recognition and protection of their same-sex unions” (§ 185) and, therefore, had violated Article 8 of the Convention.
Taken at face value, the judgment in Oliari supports the view that Romania is under a positive obligation to provide same-sex couples with legal recognition of their relationships and, therefore, supports the applicants’ complaint that they are suffering a violation of, at least, Article 8 of the Convention. However, in Oliari the Court was very careful, as Judges Mahoney, Tsotsoria, and Vehabović put it, to limit its finding of the existence of a positive obligation to Italy. Therefore, it remains to be seen whether the Court will extend this positive obligation to other Contracting States. Obviously, if the Court did so this would be a monumental step towards equality for same-sex couples in Romania, and this would have major implications for other Central and Eastern European countries.
A final point is that this case is very similar to the case of Fedotova and Shipitko v Russia, which concerns complaints by three same-sex couples about their inability to marry in the Russian Federation. That case was communicated by the Court in 2016 and I wrote about it here. Further relevant reading Johnson, P. and Falcetta, S. (2020) “Same-sex Marriage and Article 12 of the European Convention on Human Rights”. In Ashford, C. and Maine, A (eds.) Research Handbook on Gender, Sexuality and the Law (Edward Elgar Publishing, draft available here).
Johnson, P. and Falcetta, S. (2019) “Sexual Orientation Equality In Central And Eastern Europe: The Role Of The European Convention On Human Rights’. European Human Rights Law.
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 
