Online Appendix for
International Courts as Agents of Legal Change:
Evidence from LGBT Rights in Europe
Contents
1.
Coding Guidelines.................................................................................................................. 1
2.
Overview ................................................................................................................................ 4
3.
Detailed Codings ................................................................................................................... 6
Military Service.......................................................................................................................... 6
Transsexual Rights Issues ........................................................................................................ 37
Hate Speech .......................................................................................................................... 127
4.
Sources .............................................................................................................................. 169
1. Coding Guidelines
General Guidelines:
Assumptions about data:
a. Coding a state as “no” for a given legal issue implies that the ECtHR would find that state in
violation of the convention were its practices challenged.
b. In the absence of a law or official policy, the authors require a systematic pattern of
conduct, not merely one or a small number of isolated incidents.
Hierarchy of sources:
a. Legislation or court decisions
b. Reports of EU and Council of Europe
c. Comprehensive NGO Reports & Encyclopedias
d. Responses from government representatives or officials or recognized experts
e. Other secondary sources (e.g. law reviews)
Note: if there are multiple sources, and most of them point to one conclusion, but one source
does not, the authors gave priority to the multiple sources.
General vs. Specific
1
The authors give priority to general rules over specific cases. For example, a country may
permit lesbians and gay men to serve in the military, but there may still be occasional episodes
of discrimination or discharge.
Date of adoption vs. Entry into force
In terms of dates, the authors assume that date of adoption is the same as date of entry into
force unless they locate a source indicating that the dates are different.
Where it was not possible to identify a date of adoption, but the authors could identify that a
law or practice has been in place at least since a particular date, they have filled in the date
adopted and date in force column as “at least since 19XX”.
Issue-Specific Guidelines
Sodomy and Age of Consent Laws:
i. Coding based on laws on the books. Actively enforced and unenforced laws are treated the
same by the authors.
Military:
i. A law concerning military service that does not mention sexual orientation or homosexual
conduct is presumed to permit lesbians and gay men to serve in the military—in the absence
of evidence of a systematic pattern of discrimination or harassment.
ii. If a law requiring non-discrimination on the basis of sexual orientation in employment
applies to the military, it is presumed that lesbians and gay men are permitted to serve in the
military—in the absence of evidence of a systematic pattern of discrimination or harassment.
Transsexual Docs:
i. If a country allows changes to frequently used documents, the country is assumed to be in
compliance with B v. France (external documents), even if the birth certificate cannot be
changed.
ii. If a country must allow changes to all documents, the country is assumed to be in
compliance with Goodwin v. UK (all documents).
iii. If a country allows changes to the birth certificate, it is assumed that all documents can be
changed, unless the sources suggest otherwise.
Alternative Coding
i. The Commissioner’s report is used to determine which countries are considered to have
transgender-specific legislation.
ii. Only dates for legislative changes are considered.
2
iii. If there is more than one legislative change, the authors use the date for the most recent
modification.
Transsexual Marriage:
i. A law indicating that transsexuals can or cannot marry is controlling. In the absence of such a
law, the authors use the following presumptions:
a. If gender can be changed on all identity documents, the authors assume that
transsexuals have the right to marry unless law expressly provides otherwise.
b. If gender can be changed on birth certificate/registry, the authors assume that
transsexuals have the right to marry unless law expressly provides otherwise.
c. If gender can be changed only for other documents (e.g. passport), then it is
assumed that there is no effect on whether transsexuals can or cannot marry.
Hate Speech
The authors code a country as “yes” if one of the following applies:
1. Country adopted hate speech law that expressly includes sexual orientation (year of
adoption).
2. In the absence of the above, a court decision recognizing sexual orientation as a prohibited
ground of hate speech (likely a country with a catch-all hate speech law) (year of judicial
decision).
If neither of these conditions is present, the country is coded as “no”.
3
2. Overview
Country
1 Albania
2 Andorra
3 Armenia
4 Austria (EU)
5 Azerbaijan
6 Belgium (EU)
7 Bosnia &
Herzegovina
8 Bulgaria (EU)
9 Croatia
10 Cyprus (EU)
11 Czech Republic
(EU)
12 Denmark (EU)
13 Estonia (EU)
14 Finland (EU)
15 France (EU)
16 Georgia
17 Germany (EU)
18 Greece (EU)
19 Hungary (EU)
20 Iceland
21 Ireland (EU)
22 Italy (EU)
Military
No
No military
No
2002
No
never formally
banned
(2003)
External Documents
No
No
No
1993
No
2007
All Documents
No
No
No
1993
No
2007
Alternative Coding
No
No
No
1993
No
2007
Marriage
No
No
No
1997
No
2007
Hate Speech
No
2005
No
No
No
2007
(2001)
(2001)
(2001)
(2001)
No
2003
2003
No
1999
1998
(2005)
2002
2000
1998
(2008)
2002
2000
No
No
2002
2000
1998
(2008)
2002
2000
No
2006
No
No
1978
never banned
(1981)
never banned
never banned
2001
No
2000
no military
1998
Sufficient (No until
2008, de facto
practice of
1994
2000
1988
1992
1996
1981
Insufficient
1982
(1996)
1998
1982
1994
2002
1988
1992
1998
1981
Insufficient
1982
(1996)
No
1982
1994
No
2002
No
No
1981
Insufficient
No
(1996)
No
1982
1994
2002
1988
1992
1998
1981
Insufficient
1982
(1996)
No
1982
1987
2006
No
2004
No
2004
No
No
1996
1989
No
4
23 Latvia (EU)
24 Liechtenstein
25 Lithuania (EU)
26 Luxembourg (EU)
27 Macedonia
28 Malta (EU)
29 Moldova
30 Monaco
31 Montenegro
32 The Netherlands
(EU)
33 Norway
34 Poland (EU)
35 Portugal (EU)
36 Romania (EU)
37 Russian
Federation
38 San Marino
39 Serbia
40 Slovakia (EU)
41 Slovenia (EU)
42 Spain (EU)
43 Sweden (EU)
44 Switzerland
45 Turkey
46 Ukraine
47 UK (EU)
discrimination and
exclusion in 2009 and
2010)
No
No military
1990
2006
2005
1973
(No)
No army
(No)
1982
2009
No
No
No
No
2004
1990
No
2009
1985
2009
No
No
No
No
2004
1990
No
2009
1985
2009
No
No
No
No
2004
No
No
2009
1985
2009
No
No
No
No
No
1990
No
2009
1985
No
No
2003
1997
No
No
No
2005
No
1992
1963
1978 yes; 1989 no;
1991 yes
2011
(No)
2000
1963
No
2011
1996
2000
1963
1978 yes; 1989 no;
1991 yes
2011
(No)
(2000)
1981
No
No
(2006)
2003
1963
1978 yes; 1989 no;
1991 yes
2011
(1996)
1997
No military
2010
2004
2002
1985
1984
1992
No
No
2000
No
No
1981
2003
2007
1972
1961
1988
2007
(1970)
No
No
1981
(2003)
2007
1972
1961
1988
2007
2005
No
No
2000
No
2007
1972
No
1988
2007
2004
No
No
1981
(2003)
2007
1972
(1961)
1988
2007
2005
2008
No
No
2008
1996
2003
No
No
No
No
1979
No
2007
2006
No
5
3. Detailed Codings
Military Service
1. Reliable information
1. ALBANIA – No
(Dalvi 2004 25-30)
Does not allow
(Likmeta 2010)
Pink Embassy, a local NGO that promotes the rights of Albania’s lesbian, gay, transgender and bisexual community, has called on the armed forces to fight discrimination. Besar Likmeta. Tirana
(Found on the ILGA-Europe website).
“With the approval of the anti discrimination law Albania legally does not impede the enrollment of gays, lesbians and bisexuals in the army,” the head Pink Embassy, Kristi Pinderi, said in a
statement.
“[Homosexuals] have been, are and will be part of the military, despite the fact that they cannot express openly their sexual orientation due to prejudice,” Pinderi added.
According to Pink Embassy the armed forces should begin a process of educating their members on their rights related to sexual orientation by introducing materials in the training of the
military that could help fight prejudice against gays and lesbians.
2. ANDORRA – No military, defense is responsibility of France and Spain
Greenwood Encyclopedia;
(Ottoson and ILGA 2006);
(CIA 2011)
No military.
6
3. ARMENIA – No
(US Department of State 2011)
Persons who were openly gay were exempted from military service, purportedly because of concern they would be abused by fellow servicemen. However, the actual exemption required a
medical finding via psychological examination that gays possessed a mental disorder, which was stamped in their documents and could affect their future.
(http://www.state.gov/g/drl/rls/hrrpt/2010/eur/154411.htm)
(ILGA and COC 2009, 38)
The prospect of having to serve in the army is considered worse than a prison sentence for many LGBT people. According to Mikayel Danielyan, the army is reluctant to recruit homosexual
men, and if the medical commission identifies homosexuals or they declare their sexual orientation themselves, they are sent to a psychiatric hospital, where they spend from one day to a
couple of weeks, and are eventually certified as having a mental disorder. The wording used in the certification has changed over time: up until 2000 it was ‘homosexualism’, between 20002003 ‘schizophrenia’, and in the most recent cases ‘mental disorder’. IHF’s 2007 report clarifies that since 2001, based on Order No. 378 by the Minister of Defense, homosexuality has been
considered an illness and, therefore, homosexuals are considered unfit for military service.
(Dalvi 2004 25-30)
“Officially gays can serve but they can use their sexual orientation to opt out of the military. However, for the people who opt out, they are let go on the grounds that homosexuality is
regarded as a mental disorder. If an openly gay man does wish to serve, he has to be willing to be out of school, family, as the military might contact these people. Given the fact that
homosexuality is perceived as a mental disorder and the pressure on a gay man to come out to those who know him if he wishes to serve, it would be appropriate to conclude that there is a
PARTIAL BAN.”
4. AUSTRIA – 2002
Dr. Helmut Grapuner clarified in an email from August 15, 2010 that Austria has never formally banned gays and lesbians from the military. There were no statutory, administrative or judicial
bans. However, persons convicted of a criminal offense could be expelled and he knew of one case in the police forces, and was sure it was a regular practice. For this reason, the date he
provided is 2002, when the last anti-homosexual law was repealed.
(Dr. Helmut Grapuner, pers. comm.)
As far as Austria is concerned I can tell you that there never was an explicit ban for lgb to serve in the army; neither statutory, nor administrative nor by case-law.
Persons convicted under the criminal law however could have been expelled under disciplinary law. I do not know real cases but I know one case from the police force and I am sure that it was
regular practice.
7
The total ban (affected lesbians and gays) has been repealed in Austria in 1971. The last anti-homosexual offence was repealed in 2002. So you can say that only from 2002 onwards
(consensual) homosexual contacts cannot be a ground anymore for being refused to the army or for being expelled.
(Palm Center 2010)
(Ottoson and ILGA 2006)
Council of Europe DH-LGBT, 2009
Allows.
Harris, 1991
At least since 1984: In 1982-84 reported “Policies Allowing Persons Who Engage in Homosexual Behavior to Serve in their Militaries” and “that there are no problems related to homosexual
behavior in the military.”
Graupner, 2007
At least since 1990: In 1990 and 1993 the Minister of Defense stated that the army keeps records on the (real or supposed) homosexuality of its members. This is necessary, he claimed, to
avoid blackmail and to protect young recruits. Since no affected person has brought a petition, neither the Commision for the Protection of Date nor the courts could decide on the legality of
this practice.
5. AZERBAIJAN - No
Dalvi in 2004 said Azerbaijan does not allow. ILGA-Europe and COC registered an individual case of discrimination in 2007.
Forced Out, LGBT People in Azerbaijan, ILGA/COC, 2007
Individual case of discrimination: “The mission collected little information on the situation in the army. One respondent told the mission: ‘One day I was called for military service and they
sent me to a mental hospital in the city. The doctor confirmed I was gay and they sent me back to the military office. They gave me the 18B-diagnosis.' The mission could not verify the
meaning of this code. The mission was informed of another case of a gay man who had been discharged from the compulsory military service on account of his sexual orientation, but this
could not be verified either.”
Dalvi, 2004
Does not allow
6. BELGIUM – Never formally banned
8
Greenwood Encyclopedia of LGBT Issues Worldwide, 2010
Never excluded: “During the French period (1795-1815) and following the 1791 Code penal révolutionnaire, the Code des délits et peines of the 3éme brumaire an IV, and the 1810 Code
imperial, the crime of sodomy was abolished. This decision has never been challenged, neither during the Dutch period (1815-1830), nor under the Belgian State (founded in 1830). Moreover,
male homosexuals have never been formally banned from the military. However, the absence of explicit criminalization does not imply the disappearance of police molestation and legal
prosecution, which occurred under the charges of debauchery, prostitution and procuring, outrage to public decency, or corruption of minors.”
Palm Center, 2010
Allows
Harris, 2010
In 1982-84 reported “Policies Allowing Persons Who Engage in Homosexual Behavior to Serve in their Militaries,” “that homosexual behavior is considered a psychiatric problem” and that
“some form of homosexual behavior is a punishable offense.”
7. BOSNIA & HERZEGOVINA – 2003
Dalvi, 2004
Allows
Organization Q & Sexual Rights Initiative, Report on Bosnia and Herzegovina: 7th Round of the Universal Periodic Review, 2010
A more extensive (but flawed) law was passed in 2008. (See also under point 8 here a suggestion that transgender people may change documents (though not marry or have surgeries
(http://lib.ohchr.org/HRBodies/UPR/Documents/Session7/BA/JS_UPR_BIH_S07_2010_JointSubmission.pdf)
8. BULGARIA – 2003/2004
Law on Protection Against Discrimination, 2004:
Article 27: The provisions under this Section shall apply also to discrimination on the grounds of sex in the regular military service of the armed forces, unless for performing activities and
occupying positions where sex is determining factor. (Available at http://www.stopvaw.org/sites/3f6d15f4-c12d-4515-8544-26b7a3a5a41e/uploads/anti-discrimination_law_en.pdf)
Other sources confirming this date: Greenwood Encyclopedia of LGBT Issues Worldwide, ILGA World Wrap-Up Survey.
9. CROATIA - 2003
9
Greenwood Encyclopedia, 2010
Allows: No restrictions for gay and lesbian people in uniformed services (armed forces, police and security).
Dalvi, 2004
Prohibits
Kontra & Iskorak, The State of Human Rights of Sexual and Gender Minorities in the Republic of Croatia in the Year 2002
Ambiguity in 2002: In March 2002, Višnja Tafra, secretary to the Minister of Defense, mentioned that following the Manual for estimating the draftee’s ability to serve in the army, medical
committees inquired about the draftees’ sexual orientation, and that homosexuals were not drafted.
It was only after the Parliamentary Committee on Human and National Minority Rights held a session on March 12, 2002, that the then-Minister of Defense Jozo Radoš refuted the claim that
homosexuality constituted a reason for exemption from military service. However, he confirmed that according to the manual both transvestism and transsexuality were treated as disorders
of sexual inclination and gender roles. We consider this to be intolerable discrimination of transgendered people, i.e. gender minorities. (available at http://ilgaeurope.org/home/guide/country_by_country/croatia/the_state_of_human_rights_of_sexual_and_gender_minorities_in_the_republic_of_croatia_in_the_year_2002)
ILGA-Europe, “The Equal Dignity and Intrinsic Equality of Human Beings” - Report to the Committee of Ministers of the Council of Europe, 2000
Individual case of discrimination in 1998: In July 1998, Aldin Petric, a recruit in the Croatian army, answered his draft summons, reporting to the army barracks at Pula. Shortly after arriving,
he informed his superior officer privately that he was gay. Despite the officer’s promises to keep this information confidential, it quickly spread through the barracks. Petric was subjected to
repeated physical abuse and attacks, as well as to isolation, by the other recruits. Although these attacks took place in the presence of officers, the latter reportedly refused to intervene.
Instead, Petric himself was disciplined and removed from various details; finally he was forbidden to leave the barracks, "to avoid problems which might arise from meetings with other
soldiers." On July 22, Petric was summarily dismissed from the armed forces. In October, the Ministry of Defence reversed the finding of Petric’s inability to serve, and summoned him to
complete his military service. Fearing that a return to the army would put him in danger of further abuse and violence, he fled the country.
International Gay and Lesbian Human Rights Commission, Croatia: Ex-Soldier Persecuted Because of Homosexuality, 1998
Confirmed the previous account of discrimination.
Global Rights, et al., The Violations of the Rights of Lesbian, Gay, Bisexual and Transgender Persons in CROATIA: A Shadow Report, October 2009
In 2003, prohibitions of LGBT discrimination was introduced in the Labour act. (available at http://docs.google.com/viewer?a=v&q=cache:NxePhdAmS4J:www2.ohchr.org/english/bodies/hrc/docs/ngos/JointStatement_Croatia97.pdf+Global+Rights+International+human+Rights+clinic+Zagreb+pride&hl=en&gl=us&pid=bl&srcid=ADGEES
hUHVs2f4eY6nrUt66b9UmooeZmYlzP0eHXwsCiLv9B7HTnnh141XBisN0T6N1POhL14smJVg28FrjanxD-wbsjWxNTTDQwn1A6Ob1dfwp2PwLMOxwdAiIf7hDLUUGUcZDRaLw&sig=AHIEtbRYfr62AYlDj8XtoDXRP07URvtY9w)
European Network of Experts in the Non-Discrimination Field, Report on Measures to Combat Discrimination (2009)
10
There is no provision in the Anti-discrimination Act specifying an exception for the armed forces in relation to age or disability discrimination. The Act on Service in the Armed Forces provides
an exception for the armed forces in relation to age, health and physical abilities. (available at http://www.non-discrimination.net/content/media/2009%20-HR%20Country%20Report%20LN_final.pdf, page 36)
10. CYPRUS - No
There were anti-discrimination laws that applied the EU directives. The first set of these laws did not apply to the military, but the second apparently did. Nonetheless, the 2008 FRA Report on
Homophobia and Discrimination in Cyprus points to discrimination against gays and lesbians in the military.
Trimikliniotis, Nicos, Report on Measures to Combat Discrimination: Directives 2000/43/EC and 200/7/EC – Country report on Cyprus, 2007
Anti-discrimination law: “The national legislation transposing the Race and Framework directives [Law N.58(I)/2004, Article 4(a); Law N.57(I)/2004, Article 5(a)] applies to all sectors of public
and private employment and occupation,1 including contract work, self-employment, holding statutory office, with the exception of military service. The scope of Law N. 58(I)/2004
(transposing the Employment Directive) covers conditions for access to employment, to self-employment or to occupation, including selection criteria, recruitment conditions and promotion;
access to vocational guidance and training, including practical work experience; employment and working conditions, including dismissals and pay; membership in an organisation of workers
or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations. In the case of military service, article 8(4) of the
same law provides in exception to the prohibition of age discrimination, when the fixing of age limits is justified by the nature and the duties of the position. The recommendation of the
Ombudsman later was used to reject a suggestion by the Ministry of Defense to allow certificates with the motives for discharge. The legislation would also allow for administrative measures
of those who refused to serve.” “The Combating of Racial and Some Other Forms of Discrimination (Commissioner) Law provides for the implementation of Protocol 12 and may therefore
apply to military service issues1. [This law gives the Equality Body the power to investigate complaints of discrimination. The other laws, implementing the EU directives, included exceptions to
the material scope, but this law has no exceptions. Therefore the Equality Authority can receive complaints ] Both laws, N.58(I)/2004 (Article 2) and N.57(I)/2004 (Article 2) define ‘employee’
as ‘any person who works or is trained in full time or part-time occupation, fixed time or permanent employment, continuous or otherwise, irrespective of the place of employment, including
home employees but excluding self-employment.” “Section 5(2) of Law No. 58(1)246 transposing the employment directive allows for differential treatment based on racial or ethnic origin,
religion, belief, age or sexual orientation when the nature of the particular occupational activities or the context within which these are carried out is such that a specific characteristic
constitutes a substantial and determining employment precondition, provided that the aim is legitimate and the requirement proportionate.” (available at http://www.pedz.unimannheim.de/daten/edz-ath/gdem/07/cyrep07_en.pdf)
Thematic Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation (2008)
1
This law gives the Equality Body the power to investigate complaints of discrimination. The other laws, implementing the EU directives, included exceptions to the material scope, but this
law has no exceptions. Therefore the Equality Authority can receive complaints. To quote the same report, on p. 60: “In this law, the Equality Body is empowered to deal with complaints of
discrimination based on any law, including this particular law, which basically opens up the possibility for decisions on the basis of anti-discrimination provisions without exceptions, drawing
on other instruments, such as Protocol 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and constitutional provisions.”
11
Practice of discrimination: Nevertheless, the stigma against homosexuals in the army remains largely unchanged: the landmark ECHR case of Smith & Grady v. UK 1999, which recognised that
peoples sexual orientation was one of the most intimate aspects of their lives and found that no evidence that gay soldiers would somehow prejudice the morale, fighting power or
operational effectiveness of the armed forces and accession tot he EU has led to a more discrete approaches towards gays by the Greek-Cypriot army command. It is widely believed that
amongst the thousands of persons released for psychological reasons are gay men. According to figures released by the Ministry of Defence between 1992 to 2006 one in nine new army
recruits was released due to psychological reasons: out of 79.376 national guards, 4.279 were released whilst another 4.693 army service were suspended due to psychological reasons.
Apparently this was causing concern in the army leadership and Government. The Permanent Secretary of the Ministry of Defence, Mr. Kareklas, whilst admitting that there may well be
homosexuals within the category of persons with psychological problems, suggests that there are no records kept due to the protection of privacy and personal data. He reiterated that there
is no discrimination in the army, but suggested that in practice many homosexuals may be released after they appear before a Doctors’ Council. Gay liberation activists dispute the allegation
that there is no discrimination against homosexuals in the Cypriot army. (Available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_CY.pdf)
Thematic Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation (2008)
Investigation by the Ombudsman: Save for one complaint on freedom of movement referred to above, there has been no complaint to Cyprus Equality body on sexual orientation; however in
2003 (i.e. prior to the setting up of the equality body) there was a complaint to the Ombudsman regarding the treatment of homosexuals in the army. The Ombudsman asked the Defence
Ministry to change the content of discharge papers after a homosexual was denied a driving licence based on a military assessment that he had psychological problems. Although homosexuals
are - like all other men - obliged to do military service in Cyprus, they have been allowed to seek an exemption, though not on the grounds of their homosexuality. Instead, it has been
standard practice in the army to grant exemptions on various psychiatric grounds, such as personality disorder or neurosis. However, such references can deny people classed in this way other
basic rights, such as a driving licence. The case investigated by Ombudsman was filed by a 28-year old homosexual, who was discharged from the army after being deemed “unsuitable” for
health reasons. He had been examined by a military committee and classed as being “neurotic”. He was later unable to obtain a driving licence. An official at the Road Transport Department
told the media that as far as he knew when it came to issuing licences, there was no discrimination against homosexuals exempted from the army on psychological grounds. The Ombudsman’s
report suggested that the Defence Ministry change the discharge papers of people exempted from military service for medical reasons to avoid their personal rights being violated. She also
said that the issue of homosexuals and the military needed particular attention. “Specifically, during the handling of these matters it must be taken into consideration that the sexual choices
of these people attract social and moral scepticism, and consequently the voluntary or involuntary lack of action on the part of the authorities to regulate matters concerning homosexuals
while at the same time they are subjected most of the time to daily discrimination,” the report said. (Available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_CY.pdf)
ILGA World Wrap-Up Survey, 2006
Prohibits
Dalvi, 2004
Prohibits
11. CZECH REPUBLIC – 1999
Until 1999, there was practice of discrimination. In 1999 an act was passed prohibiting sexual orientation discrimination.
12
Palm Center, 2009
1999: “Homosexuality is not considered a liability for enlistment. All citizens are required to serve, regardless of sexual orientation. Act No. 1 218/1999 Coll. (Military Act) stipulates military
service ‘for all citizens of the Czech Republic, regardless of sexual orientation’. In an email from PhDr. J. Vereov of the Public Relations Department of the Ministry of Defense, he writes “In
general these issues fall in the competence of psychological personnel appointed at individual units. There is a special facility available – the ACR Open Line, where people can make phone
calls to have their problems dealt with.”
Procházka, 1997
Before 1999: “No official instruction exists that discriminates according to sexual orientation among professional soldiers or recruits for regular obligatory military service. If a recruit for
regular obligatory service claims he is a gay and has the backing of a medical (sexological) certificate, he usually is released from duty.”
12. DENMARK – 1978
Palm Center 2009
Allows
ILGA World Wrap-Up Survey 2006
Allows since 1978
13. ESTONIA – Never banned
Palm Center, 2009
Allows: There never was a ban
Sexual Orientation Discrimination in Lithuania, Latvia and Estonia, 2002
Practice of discrimination: “Discrimination on grounds of sexual orientation has occurred within the armed forces … Most of those serving in the armed forces … stay in the closet.”
Recommendation: “A clear statement by the military authorities that gay people are welcome to serve in the armed forces on equal terms with other citizens.”
14. FINLAND – 1981
Wikipedia gives 1981, also the year that homosexuality was removed from a list of illnesses. (http://en.wikipedia.org/wiki/LGBT_rights_in_Finland#cite_note-SETAhistory-0)
13
There is a finnish source for the law. 1995 and 2004 are other years when legal changes happen that have an impact.
Greenwood Encyclopedia, 2010
1970: “Perhaps surprisingly, the Finnish Army’s official policy has been approving or at least tolerant of gays. In Finland, all male citizens are required to take part in a 180- to 360-day military
service in the army or, alternatively, they may choose to serve 360 days in a nonmilitary capacity in some public utility. Women may voluntarily partake in the military service. At least since
1970, when homosexuality was decriminalized in Finland, army officers were informing recruits that homosexuality is not a valid reason to be exempted from military service. Nevertheless,
those choosing a military career have thought it prudent to keep their same-sex inclinations quiet.”
Palm Center, 2009
Allows
Dalvi, 2004
Partial Ban: Gay men may be excused from military service based on their sexual orientation
Harris, 1991
Sometime after 1982: had an exclusionary policy
Discriminatory practice in 2007:
A gay rights organisation has accused the Finnish Defence Forces of acting in a discrimatory and insulting way towards Swedish gay soldiers.
HOF, which promotes the rights of gays, bisexuals, and transsexuals in the Swedish military, says that the attitude of the Finns makes it difficult for LGBT soldiers to take part in joint
operations.
Sweden still practices conscription and there has been debate in the country over the rights of gay people in the military.
The country’s Armed Forces are deployed in Bosnia, Afghanistan, Lebanon and Kosovo.
HoF was launched in December 2001 to support serving members of the Swedish Armed Forces who are gay, bisexual or transgender – officers, civilians and conscripts.
Only conscripts who volunteer are sent on missions outside Sweden, and there is evidence that LGBT Swedes are reluctant to do so because they might face hostility.
The President of HOF told Swedish radio he wants the Swedish Defence Minister Mikael Odenberg to raise the issue of “discriminatory and insulting behaviour” with the Finns, accusing them
of being the most difficult soliders to work with.
European Network of Legal Experts in the Non-Discrimination Field, Report on Measures to Combat Discrimination (2009)
Anti-discrimination on the basis of sexual orientation was included as a protected category in 2007/2008, however, there is an exception for the military.
14
(p. 12) First, an amendment was made to the non-discrimination provision of the State Civil Servant Act [valtion virkamieslaki (750/1994)]. The act, which is one of the domain specific laws
the non-discrimination provisions of which were amended in the process of transposition of the Directives, did not originally expressly refer to “sexual orientation” as one of the prohibited
grounds of discrimination. The list of grounds of the Act was however open-ended (i.e. it prohibited discrimination not just on the expressly mentioned grounds but also “on other grounds
related to a person”) and the preparatory works made it clear that the intention was to prohibit discrimination also on the grounds of sexual orientation also in that particular field. However,
after the European Commission brought this matter formally up with the national authorities, the provision in question (Section 11 of the Act) was amended so that now “sexual orientation”
is expressly mentioned as a prohibited ground of discrimination also in the State Civil Servant Act. [see footnote 3 on page 08, the amendment was passed in 2007 and entered into force in
2008.]
(p. 68) We must distinguish here between those who work for the armed forces as civil servants or employees, and those who are performing their compulsory or voluntary military service. As
regards the first group, no discrimination shall take place on any ground covered by the Non-Discrimination Act [yhdenvertaisuuslaki (21/2004)] (which covers all grounds mentioned in the
two Directives and more), as regards, inter alia, recruitment conditions, employment and working conditions, personnel training and promotion (section 2(1), paragraph 2) or any other
material area specified in section 2(1) of the Act, corresponding broadly with the areas covered by the Framework Directive.
As regards those who are performing their military service, which is compulsory for men unless they choose alternative civilian service, and voluntary for women, the Non-Discrimination Act
prohibits discrimination only on the basis of ethnic origin (section 2(2), paragraph 3).
However, section 50 c of the Military Service Act [asevelvollisuuslaki (452/1950)], provides that in the execution of the duty to perform military service, no-one may be put, without an
acceptable reason, into a different position in comparison to others on the basis of race, origin, language, religion, political or other conviction, or “any comparable reason”. Any difference of
treatment in the context of military service, as regards e.g. age and disability, would thus have to be judged against this provision and the prohibition of discrimination in section 6 of the
Constitution. It has to be noted that these two provisions provide for a different approach to e.g. defining discrimination than the Directives and the Non-Discrimination Act, in that they e.g.
allow justification of what the Directives and the Non-Discrimination Act consider direct discrimination. (available at http://www.non-discrimination.net/content/media/2009-FICountry%20Report%20LN_final.pdf)
15. FRANCE – Never banned
D’Araújo
1985: Gay individuals have always been part of the French Armed Forces, but their integration became more effective with the 1985 employment protection measures.
Palm Center 2009
Allows
Rand Corporation, 1993
15
Gay individuals have served in the French army throughout its history: “Official Policy. The Formal response one will obtain when a French official is asked about homosexuality in the French
military is that ‘there is no policy and there is no problem’. In a legal sense, that is true. Homosexuality per se is not the basis for exclusion from conscription or voluntary military service, nor is
sexual orientation a criterion for serving in any military capacity. Interviewees readily named openly homosexual men who achieved fame throughout French history, in the military and
government as well as in the arts. The French navy never had the strict anti-sodomy laws of the British. Instead, the official French policy is captured by the phrase in Article 6.01 of the general
code of conduct ‘atteinte aux bonnes moeurs’ [affront to sensibilities] (Doniol, 1993). This phrase refers to behavior contrary to the normative standards of both French society and its strongly
conformist military, and in the context of homosexuality, is applicable to specific deeds and not to sexual orientation.
Potential conscripts are not asked whether they are homosexual, and the matter is brought to the attention of medical authorities only if the conscript himself or his superior officers bring it
up. The military officially regards homosexuality as a medical problem, and French medicine follows the American Psychiatric Association (1987) in not regarding homosexuality per se as a
disease. However, if a person’s homosexuality is associated with ‘problems incompatible with military service’ then the person may be excused from military service.”
16. GEORGIA – Never banned
Mr. Mamuka Jgenti, Deputy Permanent Representative of Georgia to the Council of Europe provided the following information:
“Homosexuals have the right to be admitted into the armed forces;
Georgian law on "military obligations and service" (1997) does not stipulate any kind of restrictions or exceptions in relation to LGBT persons for the admission into the armed forces. As it is
stated by the mentioned law, it is obligation for all Georgian citizens to serve the military service, if they have the necessary capacity for this.
Article 9 of the mentioned law envisages requirements for persons who are obliged to perform the military service: "Citizens of Georgia from 18 to 27, who are on the military registration or
are obliged to be on the military registration and do not have the right to release/postpone the calling up for the military service -are subject to the military service. A citizen who has reached
27 years is not called up for the military service and is enrolled in the reserve.”
“As for the military service - no discrimination was envisaged by the Georgian law on military service before the 1997 law was adopted. Simply, this issue was either forgotten or ignored by
the legislator. In practice, it is theoretically possible that this kind of complaint or case existed before the administrative or judicial entities, however, there is no statistics and any records even
on one single case when a gay or lesbian person complained on his/her discrimination in this regard.”
17. GERMANY – 2001
GAO Report, 1993
16
Discriminatory policy before 2001: “Germany’s military policy has been modified over the past 24 years, although it does not grant homosexuals total equal rights. The German armed forces
began permitting homosexuals to serve in 1969, when the penal code was revised to decriminalize homosexual acts for males ages 21 and over. In 1987, Germany’s Federal Administrative
Court ruled that homosexual orientation alone was not sufficient grounds for revoking security clearances, and the military has since changed its policy accordingly. In 1990, this same German
court found that the German military is justified in not allowing homosexuals to serve in leadership or educational positions.
German military officials said they deal with homosexuals on a case-by-case basis, in accordance with the flexibility provided under their policies. How each case is handled, they said, hinges
on such factors as whether the individual is a conscript or volunteer, the individual’s rank and time in service, and whether the individual exhibits homosexual orientation or engages in
homosexual behavior. Depending on the circumstances, a homosexual soldier may not be punished at all, may be restricted from certain assignments, or may be disciplined in some other
way.”
Palm Center 2009
New Policy in 2001: “Germany no longer has a ban on gays and lesbians from serving, nor does it allow any form of discrimination against gays and lesbians in the military. In January of 2001,
the General Inspector of the Federal Army, Harald Kujat, published a kind of code of conduct titled ‘Dealing with sexuality’ that ‘established (within the army) an equal treatment for gay
lesbian members of the army. This has to be considered as a binding antidiscrimination measure’ (from Klaus Jetz of the Lesbian and Gay Federation in Germany.”
ILGA World Wrap Up Survey, 2006
ILGA says the policy changed in 2000/01
18. GREECE - No2
Most sources say there is a discriminatory policy. In 2005 Greece adopted legislation implementing the EC anti-discrimination directives, but it is not clear whether it will resolve the issue in
the military.
ILGA World Wrap-Up Survey, 2006
Does not allow
Greece Does not Want Gays in its Armed Forces, 2006, ILGA Euroletter n. 130
2002 Presidential ban: Greece officially does not want gays in its armed forces, excluding both those serving under its compulsory conscription system and those enlisting voluntarily, the
Greek armed forces general staff said Tuesday. The Greek army bars gays from its ranks under a 2002 presidential decree which excludes from military service all persons "suffering from
psycho-sexual or sexual identity disorders," a general staff source told AFP. (…) The confirmation came as the country's gay community (Eok) on Tuesday filed a complaint against the Greek
defence and transport ministries, arguing that this "fascist" statute is now preventing them from obtaining drivers' licenses as well. (available at http://ilgaeurope.org/home/publications/euro_letter/2006/in_english)
2
I placed Greece here instead of in the third group because even though there is some conflict in the sources, all agree that there is an exclusionary policy.
17
BBC News, International Approach to Gays in the Military, February 2010
“Despite national conscription, the Greek army bars openly gay personnel from its ranks under a 2002 presidential decree which excludes all persons "suffering from psycho-sexual or sexual
identity disorders" from military service.”
Greenwood Encyclopedia, 2010
Practice, not policy: “Officially, gays and lesbians have equal access to the military. However, EOK, an Athens-based LGBT group, reports that homosexuals have been denied access to the
military because of their sexual orientation.”
ILGA-Europe, The Equal Dignity, 2000
Does not allow: A footnote explains "Homosexuality is banned among officers in the Greek armed forces. If an officer is found to be homosexual he or she is forced to resign his commission.
Conscripts may be exempted if they are gay, although they may insist on serving." (Associated Press, January 12, 2000 - "World's Militaries and Gay Stance") (…) In Greece internal orders and
rules in the public sector, such as post offices, courts, schools, utilities, telecommunications, the police, require “decent” behaviour. Homosexual orientation does not usually fall within the
loose definition of “decency”. Being tolerated in such a job or function depends on the individual's superiors. It is generally wiser for a lesbian or gay person to conceal their orientation.
European Anti-Discrimination Law Review, Issue No. 2, October 2005, page 60
Anti-Discrimination Law: On 18 January 2005, the Parliament enacted Law 3304/2005 on the application of the principle of equal treatment regardless of racial or ethnic origin, religious or
other beliefs, disability, age, or sexual orientation (Law Gazette A’16). The Law adopts the exact wording of the Directives in relation to … introduction of exemptions to the application of the
principle of equal treatment such as nationality and conditions of entry into and residence of third-country nationals and stateless persons, payments made by state schemes or similar,
including state social security or social protection schemes and the armed forces, as well as professional requirements, differences in treatment on the ground of age and instruction to
discriminate.
19. HUNGARY – 2000
ILGA World Wrap up Survey 2006
Allows
Dalvi, 2004
Partial Ban: “According to a military representative from Hungarian embassy in London, there was a ban prior to 2000. He said that legislation 7/1996 banned gays from serving in the armed
forces and that there was a change of policy in 2000, when new legislation was introduced. This legislation allowed gays to serve in the reserve forces and during mobilization. The change of
policy was a result of pressure from a ‘trade union’ that looks after the interests of Hungarian homosexuals. However, he stressed that in the case of the regular forces, a gay applicant would
be expected to declare his homosexuality before a selection board and he would then be told that he can serve either in reserve forces or will be called if there is a mobilization. His sexual
orientation will be kept confidential (NB: the representative stressed that this happens very rarely). Therefore, it would be appropriate to conclude that there is a PARTIAL BAN.”
GAO Report, 1993
18
There is no specific law/military reg. Restrictions apply to volunteers.
BBC News – Gays in the Military: The US and Compared, 2010
Does not allow: One of the 10 countries in the European Union that does not allow gay men to serve in the armed forces.
European Network of Legal Experts in the Non-discrimination Field, Report on Measures to Combat Discrimination Directives 2000/43/EC and 2000/78/EC – Hungary (2009)
Anti-Discrimination Law: Main legislation is the Act CXXV of 2003 on Equal Treatment and the Promotion on Equal Opportunities (ETA), which came into force in January 2004. Before the
coming into force of the ETA sexual orientation was mentioned expressly in only one of the sectoral statutes: Act CLIV of 1997 on Healthcare (hereinafter: Healthcare Act). However, as was
pointed out above, the jurisdiction of the Constitutional Court consequently regarded sexual orientation as being one of the “other grounds” listed by Article 70/A of the Constitution.3 The
ETA expressly covers but does not define sexual orientation. (available at
http://www.migpolgroup.com/public/docs/169.2008_Countryreportonmeasurestocombatdiscrimination_Hungary_EN.pdf see pages 6, 17 and 24)
European Network of Legal Experts in the Non-discrimination Field, Report on Measures to Combat Discrimination – Directives 2000/43/EC and 2000/78/EC: Country Report on Hungary,
2009
Exceptions to the armed forces do not include sexual orientation: “Article 3 of the ETA defines labour relations (foglalkoztatási jogviszony) so as to cover employment, public employment,
employment by court, the prosecution services, the Ministry of Justice, official and contractual services (including in the armed forces) and employment as an official foster parent.” “National
anti-discrimination law does not provide for a particular exception for the armed forces in relation to age or disability discrimination, but the statutes regulating the status of armed forces
contain provisions on age limits and physical suitability.” “Article 6 of the Armed Organisations Act runs as follows: “(1) With regard to the service relationship the requirement of equal
treatment shall be met. (2) The armed organ guarantees without discrimination the advancement of its professional member, based exclusively on his/her professional qualities, experience,
performance and service time and with regard to the criteria of ranking.” “In terms of Article 41 of the Armed Forces Act (regulating the army), those may enter service who are older than 18
and younger than 47, and are suitable for service from a medical, psychological and physical point of view.” “The detailed regulations are set forth by Joint Decree 21/2000. of the Ministry of
Interior and the Ministry of Justice. The Decree contains a very detailed description of what “suitability from a medical, psychological and physical point of view” means.”(see pages 58, 63, 75
and 75, available at http://www.migpolgroup.com/public/docs/169.2008_Countryreportonmeasurestocombatdiscrimination_Hungary_EN.pdf)
20.ICELAND – No military
CIA World Factbook, 2008
3
In its decision 20/1999 (VI. 25.) on abolishing a discriminatory provision of the Penal Code (penalizing homosexual incest between siblings, while not rendering incest between heterosexual
siblings punishable), the Constitutional Court claimed the following: “The sole basis of distinction in the case examined is sexual orientation: homosexual siblings are punishable under the law,
whereas heterosexual siblings are not. In terms of Article 70/A of the Constitution, this is discrimination based on »other ground«”.
19
No military: Iceland has no standing military force; under a 1951 bilateral agreement – still valid – its defense was provided by the US-manned Icelandic Defense Force (IDF) headquartered at
Keflavik; however, all US military forces in Iceland were withdrawn as of October 2006; although wartime defense of Iceland remains a NATO commitment; in April 2007, Iceland and Norway
signed a bilateral agreement providing for Norwegian aerial surveillance and defense of Icelandic airspace.
Palm Center 2010
Does not allow: “Presently 25 nations allow open gays to serve in their militaries, including all the original NATO countries besides Portugal, Iceland and the U.S.”
21. IRELAND – 1998
Palm Center 2009
Allows since 1998: “According to Denise Croke of OUThouse, a support service for glbtq people in Ireland, there is no ban on LGBTs in the Irish military. Cathal Kelly, International Secretaty of
the National Lesbian and Gay foundation, which implements recent equality legislation in Ireland, says that the Employment Equality Act of 1998 applies to the Irish military. The act is
available online at www.gov.ie/bills28/acts/1998/default.htm and is item #21 on the list.”
ILGA World Wrap Up Survey, 2006
Allows
22. ITALY – No until 2008; De facto practice of discrimination in 2009 and 2010
Greenwood Encyclopedia
Professional army: “Despite different attitudes of military districts on admittance of homosexuals to the army, the overall army policy on the matter has been one of rejection.” “With the
introduction of the professional army, homophobia against those outside and inside the army has not ended, and occasionally this attitude has appeared to be justified by comments of
members of government and center-right-wing parties. In July 2008 Carlo Giovanardi – deputy secretary of the Ministry of Family of the new Berlusconi government – stated that homosexual
men can be part of the army but also that there should not be ‘an overt, visible, and invasive manifestation of homosexuality.’ Giovanardi went on to compare a tolerable type of
homosexuality to the attitude of heterosexual men frequenting prostitutes.”
Palm Center 2009
“Arcigay, the gay and lesbian rights organization in Italy, responded by saying the legally there is no precedent of barring gays and lesbians from the military, but in reality this is not necessarily
the case. If the presence of a gay service member disrupts military discipline, it appears they can be dismissed. Also, a law exists in Italy that allows gay people to avoid military service based
on their homosexuality. Web resources: www.gay.it/noi, which offers a link to the home page of NOI, Notizie Omosessuali Italiene.”
20
Simon & Brooks, 2009
“Italy has no official policy on allowing gays into the military but allows gay men to be exempted from the mandatory military service requirement if they say they fear discrimination based on
their homosexuality. There have been reports, however, that overt homosexual behavior has been grounds for dismissal from the military.”
ILGA-Europe, Equality for Lesbians and Gay Men 1998
Compulsory military service: Military service is compulsory in Italy, but conscripts can be excused for health or psychological reasons. “Sexual perversion” is included among the possible
reasons for being excluded from serving. In the past, the definition included any form of homosexuality, but in recent years army doctors and psychologists have commonly only admitted egodystonic homosexuality as “sexual perversion”. There is no written code reflecting this change of attitude. The Army takes a very independent line in selection, and the situation can be very
different in different military districts: in some, any homosexual would be excused military service, in others, self-confessed homosexuals would be accepted into the military. Until the Army
and Arcigay, the main gay association in Italy, have operated a common pact: gay youths who consider themselves unable to sustain the macho or erotic tention of the barracks present a
statement from the Arcigay National Association in which the president declares that they were members of the Association (and so they had to be homosexual, because in popular opinion
only gay men could be members of a political association for gay liberalization), in addition to a statement from a psychologist declaring that the individual had some problems with his
homosexuality. Some gay groups have judged this pact homophobic and have decided to fight against the practice. The truth is that Italian army is very homophobic (and simultaneously a
place of homosexual experimentation) and that openly gay men can lead a very hard life, as can happen in prisons and colleges.
GAO Report 1993
Ban was codified into law in 1985.
European Anti-Discrimination Law Review, Issue No. 6/7, October 2008, page 105
Removed limitations from its Anti-Discrimination Law: Italy: Anti-discrimination legislation improved with regard to harmonizing with EU directives (…) With regard to all the grounds of
discrimination dealt with in Directive 2000/78/EC, a passage in decree 216/2003 is abolished, which did not consider as discrimination the possibility of the “evaluation of such personal
characteristics when they are relevant to establish whether a person is suitable to carry out the functions that the armed forces, and the police, prison and rescue services can be called to
carry out.” (Articles 8-sexies and 8-septies of the law of 6 June 2008, n. 101, converting into law, with modifications, the legislative decree of 8 April 2008, containing urgent provisions for the
implementation of EU obligations and the executions of judgments of the European Court of Justice of the European communities, published in the Official Journal n. 132 of 7 June 2008)
Simoni, Alssandro, Report on Measures to Combat Discrimination: Directives 2000/43/EC and 200/78/EC – Country Report on Italy, 2008
What the exception to the armed forces meant before 2008: “In some cases restrictions can be extensive, like in the case of armed forces, but are not technically built as exclusions from the
material scope of application of the new legislation transposing the Directives, but as a specification that the new act does not prejudice the validity of other legislation presently in force.” (p.
29) “The Decree transposing Directive 2000/78 establishes (article 3.2 e) that it does not affect the validity of rules presently in force concerning the armed forces in relation to age and
disability.” (p. 37, available at http://www.migpolgroup.com/public/docs/169.2008_Countryreportonmeasurestocombatdiscrimination_Italy_EN.pdf)
23. LATVIA – No
21
As of 2006, the Anti-Discrimination Law includes sexual orientation as a protected ground, but the Law does not cover the military.
European Network of Legal Experts in the Non-Discrimination Field, 2009
The one ground that was expressly prohibited only recently – by 21.09.2006 amendments to the Labour Law - is sexual orientation. To a significant extent it is still a taboo topic, which was
demonstrated both at the time of the adoption of the new Labour Law – the most advanced law in terms of outlawing discrimination – and when adopting the first amendments to it aimed at
removing some of the remaining deficiencies and at bringing the Labour Law into complete compliance with the requirements of the Directives. Both times during the examination of the draft
law by the responsible Parliamentary committee the express reference to sexual orientation in the non-discrimination clause was deleted and “other circumstances” was added instead in
order to leave the list open. The situation repeated itself in 2006 when on 15 June the Parliament again chose to remove the express reference from the draft amendments; the President
vetoed the resulting law stating it did not comply with Latvia’s EU obligations. On the repeated vote on the law on 21.09.2006, despite the upcoming Parliamentary election and hence the
political climate which did not seem favourable, the law including reference to sexual orientation was adopted by 46 votes “for”, 35 “against” and 3 abstentions, nine registered MPs failing to
take part in the vote at all. The amendments to the Law on Social Security adopted on 01.12.2005 - in fact, the second Latvian law transposing the Race Directive – omits express reference to
sexual orientation while listing a number of other grounds, the list being open-ended. Similarly, the anti-discrimination provision of the draft law on self-employed persons omits a reference
to sexual orientation, limiting the list to gender, race and ethnic origin, as does the Law on Consumer Protection. That the general attitude – including that of MPs – has not changed much was
demonstrated once again when the Parliament, voting on the proposed amendments to the Code of administrative offences to prohibit differential treatment chose not to mention specific
grounds.
Does not include military positions as employment relations:
Access to employment in all its aspects is governed by the Labour Law which regulates employment relationships, including access to employment, trial periods, working conditions, pay,
promotion and dismissals and prohibits differential treatment, providing protection against it as required by the Directives and covering all fields mentioned therein, although sexual
orientation is not expressly spelled out. It applies both to the public and private sectors, including – by virtue of Art. 2(4) of the State Civil Service Law- the state civil service and specialised
civil service, but excluding military service and contract work of self-employed persons which does not qualify as an employment relationship and is based on the provisions of the Civil Law..
Sexual Orientation Discrimination in Lithuania, Latvia & Estonia 2002
Does not allow: In 1999, the Latvian Defence Ministry wrote to the Homosexuality Information Centre to say that any citizen, irrespective of his or her sexual orientation, is free to serve in the
Latvian armed forces, adding that no questions are posed to draftees or volunteers about this matter. In January 2000, however, Defence Ministry Girts Kristovskis had this to say in an
interview: ‘I have received no complaint of homosexuality in the armed forces. We are thinking about ways in which to create a healthy environment in the army. The main thing is that
commanders and instructors must have the correct sexual orientation. Sure, people may say, ‘Don’t offend sexual minorities, we were born that way!’ but as far as I’m concerned,
homosexuality is a perversion. It’s based on the principle of ‘ I’ve tried everything else, so let me try this’. Children aren’t born homosexual; they are influenced and turned into homosexuals.’
[This report also conducted a survey of discrimination in the armed forces] “Among all respondents, only 12.9% (25) have served or are serving in the armed forces of a country. One
respondent said that officers were aware of his sexual orientation, while another three reported that their fellow soldiers were aware of this fact. Others said that no one in the army had any
idea of their sexual orientation. Only one of the 25 people who have been in the armed forces encountered discrimination there.” [“In total 194 homosexual and bisexual people took part in
this survey. 46 were women and 148 men.”]
BBC News, Gays in the Military 2010
22
One of the 10 countries in the European Union that does not allow gay men to serve openly in the armed forces.
24. LIECHTENSTEIN – No military
CIA The World Factbook, 2010
No regular military forces (constitutionally prohibited); Principality of Liechtenstein National Police (Landespolizei, LP). Liechtenstein has no military forces but is interested in European
security policy and is an active member of the Organization for Security and Cooperation in Europe (OSCE).
25. LITHUANIA – 1990
Palm Center, 2009
No practical case: “Gays and lesbians are not legally regulated in Lithuania’s Armed forces. The Ministry of Defense writes: ‘Theoretically they can serve openly but there is no practical case
like this in Lithuania so far.”
ILGA World Wrap Up Survey, 2006
Allows
Dalvi, 2004
Allows
Sexual Orientation Discrimination in Lithuania, Latvia and Estonia 2002
Homophobic environment: “Military service is a particularly crucial area in which homophobia is influential. Research in one of Lithuania’s battalions confirmed that only 2 of 184 soldiers
would agree to take service with homosexuals.”
26. LUXEMBOURG – 2006
ILGA World Wrap Up Survey, 2006
Allows
Dalvi, 2004
23
Allows
Lustig-Prean & Beckett v. United Kingdom
Blanket ban: mentioning the decision of 1995 by Lord Justice Simon Brown: “the evidence indicated that the only countries operating a blanket ban were Turkey and Luxembourg (and,
possibly, Portugal and Greece).”
European Network of Legal Experts in the Non-Discrimination Field, Country Report/Update 2006 – Luxembourg (written by François Moyse)
Anti-Discrimination Law: There is a law dealing specifically with public service, including military service, the law of 29 November 2006. There is no specific exception applicable to the armed
forces, only the general provision on “the nature of the occupational activities concerned and the context in which they are carried out ... provided that the objective is legitimate and the
requirement is proportionate.” This law covers all the grounds of the directives, including sexual orientation. (available at
http://www.migpolgroup.com/public/docs/125.Luxembourg_DiscriminationCountryReport_EN_01.07.pdf)
27. MACEDONIA – 2005
A law was passed in 2005 that remove homosexuality as a breach against discipline. This was confirmed by the expert on LGBT rights in Macedonia.
Expert on LGBT Rights, Mr. Mladenovic Ninoslav:
While Macedonia made a step forward by decriminalizing consensual homosexual intercourse, there have been some setbacks. Namely, the Law on Military Service in Article 121, paragraph 2,
prescribed that "sexual abuse or homosexuality" was a breach against discipline.
Noting this, Macedonian LGBT NGOs, through the Macedonian Helsinki Committee have lodged an application with the Court in Strasbourg arguing that the impugned provision was in
contravention with Article 8 and 14, also alleging violation of the right to an effective remedy set forth by Article 13 of the Convention. In exhausting the available domestic remedies, NGOs
have made recourse of the constitutional complaint. The Macedonian Constitutional Court has reached a somewhat illogical decision, finding that the law did not interfere with the person's
private life. Namely, it reasoned that after working hours the individual serving the Army, could without any legal impediment engage in homosexual intercourse, and that the prohibition was
applicable only during working hours. Rendering such a decision, the Court has disregarded the fact that both heterosexual and homosexual intercourse during working hours are prohibited
under Macedonian legal system. Moreover, the Court had failed to note that the law equates homosexuality with sexual abuse.
As a result of the activities of the LGBT NGOs, in the meantime, the impugned provisions have been abrogated. Namely, the Law Amending the Law on Military Service leaves out
homosexuality from the scope of Article 121. Still, it is an issue of concern that it took such a long time and an application to an international institution, before something was done in order
to align domestic legislation with human rights standards and with the very legal order of Macedonia, as such. The Amendment follows the recommendations given at the OSCE Human
Dimension Implementation Meeting held in Warsaw, 2006.
MASSO, Overview of the Legal Framework and the Rights of the LGBT People in the Republic of Macedonia
24
While Macedonia made a step forward by decriminalizing consensual homosexual intercourse, there have been some setbacks. Namely, the Law on Military Service in Article 121, paragraph 2,
prescribed that "sexual abuse or homosexuality" was a breach against discipline.
The Macedonian Constitutional Court has reached a somewhat illogical decision, finding that the law did not interfere with the person's private life. Namely, it reasoned that after working
hours the individual serving the Army, could without any legal impediment engage in homosexual intercourse, and that the prohibition was applicable only during working hours. Rendering
such a decision, the Court has disregarded the fact that both heterosexual and homosexual intercourse during working hours are prohibited under Macedonian legal system. Moreover, the
Court had failed to note that the law equates homosexuality with sexual abuse.
As a result of the activities of the LGBT NGOs, in the meantime, the impugned provisions have been abrogated. Namely, the Law Amending the Law on Military Service4 leaves out
homosexuality from the scope of Article 121. Still, it is an issue of concern that it took such a long time and an application to an international institution, before something was done in order
to align domestic legislation with human rights standards and with the very legal order of Macedonia , as such. The Amendment follows the recommendations given at the OSCE Human
Dimension Implementation Meeting held in Warsaw, 2006. (p. 6, available at http://ilgaeurope.org/home/guide/country_by_country/fyr_macedonia/overview_of_the_legal_framework_and_the_rights_of_the_lgbt_people_in_the_republic_of_macedonia)
28. MALTA – 1973
The expert on LGBT rights in Malta stated there were no discrimination provisions at least since 1970. The only impediment to gay men and lesbians serving in the military were the inquiries
on previous criminal offenses. After the repeal of bans on homosexual sexual conduct (1973), this impediment ceased to exist. Two of the other sources say the country does not allow. There
is an Anti-Discrimination law which includes sexual orientation as a prohibited ground and only allows discrimination by the armed forces on the basis of age, disability or national orientation.
Expert on Maltese law:
1. with respect to the first issue, the Malta Armed Forces Act (1970) and the subsidiary legislation regulating appointments and conditions of service of the different forces make no reference
at all to sexual orientation. However, the latter state that when a person offers to enlist, they are to answer a number of questions, including whether they have ever been charged with an
offence of which they have not been acquitted. The Act and subsidiary legislation also make reference on numerous occasions to members of the armed forces being compulsarily retired from
the force if they are guilty of 'misconduct', or if they bring the force into disrepute or are an undesirable influence.
Thus I would presume that before the decriminalisation of sexual acts between consenting adults of the same sex in 1973, a person charged and not acquitted of the relevant offence would
be disqualified from joining the armed forces. After that date, until 2007, whether or not LGBs could serve would have depended on the interpretation given to the terms I referred to, i.e.
'misconduct', disrepute' and 'undesirable influence'. Superior officers had considerable discretion in how they interpreted these terms according to the Act. I am not quite sure what the
situation was because whenever we tried to find out from the Armed Forces themselves, it seemed that they themselves didn't know either. The fact is however that we never got to know of
4
Law Amending the Law on Military Service, Official Gazette No. 112, 21 December 2005
25
any cases of LGBs being turned away or discharged because of their sexual orientation (and we knew for a fact there were LGBs serving openly, who confirmed that their sexual orienattion
was never an issue). So there aren't any cases I can cite...
In 2007, Legal Notice 524 of 2007 extended the applicability of Legal Notice 461 of 2004 (the Regulations you mention, i.e. the Equal Treatment in Employment Regulations, which transpose
the provisions of Directive 2000/78/EC into Maltese law) to service with the Government. This includes the armed forces. Therefore at present LGBs can serve openly in the armed forces.
BBC News – Gays in the Military, 2010
No: One of the 10 countries in the European Union that does not allow gay men to serve openly in the armed forces.
Harris, 1991
Did not allow in 1984
European Anti-Discrimination law Review, Issue No. 1, April 2005, page 60
2004: The 5 November 2004 Equal Treatment in Employment Regulations implemented the Council Directives 2000/78/EC and 2000/43/EC. It includes prohibition against discrimination on
the basis of age and sexual orientation for the first time in maltese Legislation. The regulations do not apply to the armed forces with regard to discriminatory treatment on the grounds of
disability and age, neither will they apply with regard to nationality.
29. MOLDOVA – No
Gender Doc-M, 12th Universal Periodic Review
No Anti-Discrimination Law
According to the National Human Rights Action Plan 2004-2008 the Parliament of the Republic of Moldova had assumed responsibility to adopt a Law on Preventing and Combating
Discrimination. To date, the bill has not been adopted. On 17 February 2011, the draft law was approved by a majority vote in the government and forwarded to parliamentary committees for
further consideration.
In July 2008, representatives of civil society and public authorities met with OSCE Mission to Moldova to discuss the draft. Greatest arguments during discussion were caused by whether to
include sexual orientation among grounds protected from discrimination in the law or not. Such negative attitude is formed and promoted by aggressive and radical neo-Nazi and religious
groups who do not want LGBT people to be integrated as an equal part of society protected from discrimination. Religious groups constantly affirm that they have right to discriminate against
LGBT people. (http://ilga-europe.org/home/guide/country_by_country/moldova/Submission-on-LGBT-Rights-12th-session-of-the-Universal-Periodical-Review)
The Violations of the Rights of Lesbian, Gay, Bisexual and Transgender Persons in MOLDOVA: A shadow report (2009)
Members of the LGBT community are often discriminated against in society due to their sexual orientation or gender identity. The Moldovan government itself, however, is also guilty of
discrimination against members of the LGBT community. Such discrimination has resulted in the loss of government employment for openly gay or transgender individuals, public homophobic
26
statements by politicians and other government agents, and a lack of attention paid by police to attacks against LGBT targets. (available at
http://www2.ohchr.org/english/bodies/hrc/docs/ngos/JointStatement_Moldova97.pdf)
30. MONACO – No army
CIA World Factbook
No military: No regular military forces; the Palace Guard performs ceremonial duties. Defense is the responsibility of France.
31. MONTENEGRO – No
Dalvi, 2004
Does not allow: (For Serbia and Montenegro) “According to a gay rights group, current policy does not allow gay men to openly serve. If a soldier claimed or was suspected to be gay, he
would undergo psychological tests and, consequently discharged from the services. In practice, there are gay military personnel but they hide their sexual orientation.”
ILGA World Wrap Up Survey, 2006
(for Serbia) Does not allow (http://typo3.lsvd.de/fileadmin/pics/Dokumente/Homosexualitaet/World_legal_wrap_up_survey._November2006.pdf) Considering this is the year in which
Montenegro became independent, it is possible they had the same policy.
32. NETHERLANDS - 1982
There were several dates mentioned in the Rand Corporation, ILGA and other publications. Dr. Waaldijk confirmed the date should be 1982
Rand Corporation, 1993
In 1974, Minister of Defense Vredeling decided that homosexuals had the right to be service members. With this decision, homosexuality was moved from a moral to a medical category; the
mere fact of homosexual orientation or behavior was not automatically exclusionary, but could be used as one of multiple criteria to determine psychological inaptitude for service. This policy
eroded over the next dozen years, until 1986, when Minister of Defense Brinkman declared the military to be part of an overall governmental policy of equal rights for homosexuals and
heterosexuals. Since then, not only has homosexuality not been grounds for exclusion or dismissal from the Dutch military, but the government has actively attempted to ensure that serving
homosexuals will be well-integrated into the force.”
ILGA World Wrap-Up Survey
27
19735
Waaldijk & Bonini-Baraldi, 20066
1982: Decision in 1982 by the Dutch Supreme Public Employment Tribunal.
33.NORWAY – 1979
Greenwood Encyclopedia
“The national defense granted full rights for homosexuals in 1979.”
Rand Corporation, 1993
“The [1972] decriminalization of sodomy in effect immediately ended any military punishment for sodomy and triggered a seven-year examination of whether homosexuality as a medical
rather than a criminal problem might lead to exemption. In 1979, homosexuality was removed from the list of medical conditions limiting either conscript or career military service.”
ILGA World Wrap Up Survey, 2006
ILGA also confirmed the date is 1979.
34. POLAND – No
Report on Measures to Combat Discrimination Directives 2000/43/EC and 2000/78/EC - Poland
Anti-Discrimination: [Poland implemented the EU Directives in several different laws. The Labor Code was amended to prohibit discrimination based on sexual orientation. It applies to both
the public and private sectors] “Labour code expressing the rule of equal treatment and the prohibition of discrimination does cover in employment relations conditions for access to
employment, including selection criteria, recruitment conditions and promotion. The same legal regime applies to both public and private sector. All grounds [including sexual orientation] are
covered.” “The legislation relating to employment in some services (the army, police, special services, border guards, etc.) establishes certain physical and mental requirements for
employment in these services. These special criteria are justified on account of the character of the armed services and their tasks.” “In general, the Polish Constitution stipulates that any
limitation upon the exercise of constitutional freedoms and rights may by imposed only by statute, and only when necessary in a democratic state for the protection of its security or public
order, or to protect the natural environment, health or public morals or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights. On the
5
6
ILGA did not provide the source for this date, so I cannot know what it refers to.
They mention that the decision was by the “highest court for public employment cases.”
28
basis of this provision, a number of limitations were introduced, especially in the area of protecting state security (visa regime, legalisation of residence, military service, etc.)” (see pages 49,
65 and 75, available at http://www.non-discrimination.net/content/media/2008-PL-Country%20Report%20final.pdf)
ILGA-Europe, The Equal Dignity, 2000
No: “There are no provisions in Poland applying to the military service of the homosexuals.…It must be mentioned, however, that in professional military services homosexualism is not
accepted” [citation is to a “Reply by the Polish Parliament’s office of inter-Parliamentary relations to the questionnaire of the Parliamentary Assembly of the Council of Europe on the situation
of lesbians and gays in Europe”]
Dalvi, 2004
Does not allow
Simon & Brooks, 2009
Partial ban: Poland does allow gays and lesbians to openly serve in the military but they may be discharged or denied promotions under limited circumstances. [Footnote: Human Rights
Watch, available at www.hrw.org/reports/2003/usa0103/USA0103FINAL-09.htm]
35. PORTUGAL – No
ILGA – Portugal (May, 2011)
Questão legislativa
O Estatuto dos Militares das Forças Armadas (EMFA), lei da Assembleia da República que regula os direitos e os deveres dos militares portugueses, faz tábua rasa da orientação sexual. O
número 2 do artigo 18.º estabelece que "o militar não pode ser prejudicado ou beneficiado em virtude da ascendência, sexo, raça, território de origem, religião, convicções políticas ou
ideológicas, situação económica ou condição social". O Estatuto foi aprovado em 1999 (Decreto-Lei 236/99, 25 de Junho). Desde então, sofreu pelo menos oito alterações e rectificações, a
última das quais em 2009. A actual redacção do artigo 13.º da Constituição é de 2004. Ainda assim, a orientação sexual nunca passou a constar do número 2 do artigo 18.º. Ao P2, nem os
chefes do Estado-Maior de cada ramo das Forças Armadas nem o ministro da Defesa quiseram explicar porquê.
Informa a Marinha, por intermédio de Alexandre Santos Fernandes: "A falta de referência à orientação sexual no artigo 18.º do EMFA não poderá ser interpretada enquanto derrogação ao
exercício de direitos pelos militares". A Força Aérea e o Exército remetem resposta para o Ministério da Defesa, sustentando tratar-se de "uma questão legislativa que deverá ser colocada à
tutela e não a um ramo das Forças Armadas em particular". Interrogado pelo P2, o ministro da Defesa repetiu, através do assessor de imprensa, a mesma frase com que comentara as palavras
do bispo das Forças Armadas.
Para a constitucionalista Isabel Moreira, "é especialmente curioso que não seja referida a orientação sexual numa lei referente às Forças Armadas, conhecidas que são pela sua resistência à
homossexualidade assumida". Segundo a especialista, "parece ter havido uma vontade clara de não incluir a questão da orientação sexual" no EMFA, visto que desde 2004 houve várias
oportunidades para o fazer. "Tal como está, o artigo 18.º concretiza de forma imperfeita o estabelecido no artigo 13.º da Constituição", afirma.
29
No dizer desta especialista, a questão técnica é a seguinte: "Em 2004, a orientação sexual passou a ser considerada uma categoria suspeita nos termos da Constituição, ou seja, qualquer lei
geral que discrimine em função da orientação sexual é à partida inconstitucional. A legislação laboral, quando reproduz os princípios do artigo 13.º, deve estar conforme à Constituição, por
uma questão de exequibilidade". No entanto, mesmo que isso não aconteça, como no caso do EMFA, diz a constitucionalista que "não implica obviamente que um trabalhador possa ser
discriminado". (http://www.ilga-portugal.pt/noticias/253.php)
Dalvi, 2004
1989: “Following the revision of military service laws in 1989, there no longer exists any regulation that prohibits homosexuals from serving in the Portuguese armed services. As a result,
homosexuals are theoretically permitted to serve without any career restrictions or discrimination. However, homosexuals who show signs of mental illness during the induction screening
process may be excluded, according to military officials.”
ILGA Europe, The Equal Dignity, 2000; D’Araújo
BUT: Restrictions. Footnote explains: Decree no. 28/89 of 17 January 1989 [This Decree banned gays from serving in the military].
ILGA World Wrap Up Survey, 2006
1999
Palm Center, 2010
No: Presently 25 nations allow open gays to serve in their militaries, including all the original NATO countries besides Portugal, Iceland and the U.S.
Lustig-Prean & Beckett v. United Kingdom
Not in 1995: the decision mentions a decision of 1995 by Lord Justice Simon Brown: “the evidence indicated that the only countries operating a blanket ban were Turkey and Luxembourg
(and, possibly, Portugal and Greece).”
36. ROMANIA – 2006
The expert on LGBT Rights in Romania said there is no provision banning gays and lesbians from serving in the military. According to Waaldijk (Chronological Overview), decriminalization
occurred in 1996.
Expert:
No law: “There is no specific provision in Romanian law regarding the two aspects you mention. This may be interpreted in favour of gays in the army on the basis of the principle "everything
that is not prohibited is allowed". “No cases of gay people in the army or transsexuals wanting to marry have been reported in the media or elsewhere as far as I know. It is difficult to make a
claim that Romanian legislation is compliant with the case-law of the court, just on the basis that specific provision is lacking, given that the application of these provisions in practice is
uncertain. It is certain though there have not been any specific changes in the law or practice in reaction to the case-law of the Court on LGBT rights, other than the singular example of
decriminalisation of sodomy way back.”
30
BBC News, Gays in the Military, 2010
No: One of the 10 countries in the European Union that does not allow gay men to serve openly in the armed forces.
Dalvi, 2004
Prohibits
GAO Report:
Under Romania's civil penal code, the practice of homosexuality is illegal. Homosexual acts in the military are punishable with a l-to 5-year prison term. Further, if a member of the armed
services declares that he is a practicing homosexual or is accused of engaging in homosexual acts, a trial is held to determine whether the civilian penal code had been violated. U.S.
Department of State officials stated that because of the legal hurdles and complications, homosexuality is considered a non-issue in Romania’s military. (available at
http://dont.stanford.edu/regulations/GAO.pdf)
37. RUSSIA – 2003
Expert:
Homosexuality is not considered mental illness since Russia officially adopted ICD-10 in 1997 and therefore in theory a gay man or a lesbian woman should be considered fit for serving in
army.
Simon & Brooks, 2009
No official policy: “Currently, the Russian Federation does not exclude homosexuals from military service. Russia has compulsory military service for all men 18 to 27 years old. The Russian
military is known for its harsh treatment of recruits under the hazing system known as dedovshchina (rule of the grandfathers), whereby young recruits are beaten mercilessly. As a result,
draft avoidance, through bribery or hiding, is widespread.” (Greenwood Encyclopedia); “Russia’s policy on allowing gays and lesbians to serve in the military is unique. Gays and lesbians who
have problems or are uncomfortable with their sexual orientation are allowed to be drafted only in times of war. Gay activists believe that this policy allows well-adjusted gay and lesbians to
serve in the military.” [This publication cites the website http://www.glbtq.com/social-sciences/military_culture_eur.html].
Report by Russian LGBT Network, 2008
No: “disorders of gender identity and sexual preference” are considered to be grounds for recognizing the citizen as physically limited or ineligible for military service.
ILGA World Wrap Up Survey, 2006
Prohibits
Dalvi, 2004
31
Not in 2003: “In February 2003, the Russian government approved new eligibility criteria for military service. The new regulations classed homosexuality with drug addiction and emotional
disorders and barred people dealing with these issues from the forces.”
38. SAN MARINO – No military
CIA World Factbook
No regular military forces; voluntary Military Force (Corpi Militari) performs ceremonial duties and limited police support functions. Defense is the responsibility of Italy.
39. SERBIA – 2010
Expert Mr. Goran Miletic:
1. During the 90s (and before that-during communism) gays and lesbians were not allowed to serve army. If person during medical check tell army that he/she is gay, they will write down
"emotional instability" and send a person home. The same was for the situations where officers discover that someone is gay/lesbian during the service. There was no law about it, but
probably some by-law exist during that period. Practice was changed since 2000, but we have no cases that someone insisted to stay in the army after he/she confess sexual orientation. In
some cases straight people tell officers that they are gay, when they dont want to serve army anymore. In 2010, local NGO finally got an answer that gays and lesbians are allowed to serve
army without discrimination (i.e.http://www.politika.rs/rubrike/ vesti-dana/Homoseksualci-mogu-u-profesionalnu- vojsku.lt.html )
Dalvi, 2004
No: (For Serbia and Montenegro) “According to a gay rights group, current policy does not allow gay men to openly serve. If a soldier claimed or was suspected to be gay, he would undergo
psychological tests and, consequently discharged from the services. In practice, there are gay military personnel but they hide their sexual orientation.”
ILGA World Wrap Up Survey, 2006
Prohibits
40. SLOVAKIA – 2004
Act of 20 May 2004 on Equal Treatment in Certain Areas and Protection against Discrimination, Amending and Supplementing Certain Other Laws (AntiDiscrimination Act):
Article VII (1) Rights provide for under this Act shall be guaranteed equally to all citizens when starting military services and to soldiers while performing military service in conformity with the
principle of equal treatment in employment and similar legal relations provided for under separate provisions.9a) In conformity with the principle of equal treatment, any discrimination shall
32
be prohibited also on the grounds of marital and family status, colour, language, political and other opinion, trade union involvement, ethnic or social origin, property, lineage or other status.
This shall be without prejudice to Sections 5 to 7. (2) Citizens when joining military service or soldiers while performing military service who consider themselves wronged in their rights or
interests protected by law because the principle of equal treatment has not been applied to them may go before a court and seek legal protection provided for under separate provisions.
(Available at http://www.iwraw-ap.org/resources/pdf/GE_Slovakia.pdf)
Dalvi, 2004
Allows
BBC News, Gays in the Military, 2010
Prohibits: One of the 10 countries in the European Union that does not allow gay men to serve openly in the armed forces.
41. SLOVENIA – 2002/2003
The expert on LGBT rights in Slovenia has confirmed there has never been a ban.
Ms. Neza Kogovsek:
“Yes, in Slovenia there are no impediments for serving in the armed forces.” She later confirmed this should be interpreted to mean there has never been a ban.
Employment Relationships Act of 2002
Article 6(1) (Entered into force in 2003).Employers must ensure for job seekers (hereinafter: candidates) in gaining employment or workers during their employment relationship and in
connection with the termination of employment contracts equal treatment irrespective of ethnicity, race or ethnic origin, national or social background, gender, skin colour, state of health,
disability, faith or conviction, age, sexual orientation, family status, membership of unions, financial standing or other personal circumstance in accordance with this Act, the regulations
governing fulfilment of the principle of equal treatment and the regulations governing equal opportunities for women and men. (Available at
http://www.mddsz.gov.si/en/legislation/veljavni_predpisi/employment_relationships_act/)
This Act applies to the Military: ERA inter alia shortly, with one provision, regulates vocational training (these are regulated in detail by collective agreements or individual agreements), so the
anti-discrimination provision in Article 6 also relates to vocational training. Unless otherwise determined in a special law, this act shall also govern the employment of persons employed by
state bodies, local communities, institutions, other organisations and private individuals performing public services. [The ERA only mentions “military” or “armed forces” regarding the
suspension and termination of an employment contract] (MEDE European Consultancy & Migration Policy Group, Report on Slovenia, 2003).
ILGA World Wrap-Up Survey, 2006
Allows
Dalvi, 2004
33
Allows
Palm Center, 2009
Discriminatory policy, but no practice: “There is no ban in the Slovenian military, but homosexuality is still listed among psychiatric diseases. Yet the ‘Rules for establishing medical capability
for serving in the military’ stipulate that ‘recruits are capable of serving in the military unless it is predicted that they will be disturbing the military unit’. The Slovenian Queer Resources
Directory writes, ‘In practice it means that gay men can avoid being drafted if they state on the draft that they are gay and that they do not want to serve’. There is no known case of a
professional military personnel being fired for his homosexuality.”
42.SPAIN – 1985
D’Araújo
1985, 1984, discriminatory provisions remain: Civilian Laws were revised in 1985 (GAO Report). In 1984 the Spanish Parliament removed homosexual behavior as an offense from the Code of
Military Justice, so that now gays can serve in the Armed Forces.
Pérez Cásnovas, 2001
“The New Military Penal Code dropped the old offence of ‘dishonest acts with individuals of the same sex’, which was punishable by up to six years in prison and discharge from the military.
However, such conduct was included as deserving of disciplinary sanctions in the Organic Law on the Disciplinary Regime in the Armed Forces. In 1991, the Tribunal Constitucional held that
homosexual relationships in the armed forces had ceased to be criminal but had become, at least in certain circumstances, an administrative infraction. In the mid-1980s, the Tribunal had
upheld old Article 32 as constitutional, suggesting that the legislature would be free to reintroduce it at any time However, a 1999 decision of the European Court of Human Rights would
preclude this.”
Greenwood Encyclopedia, 2010
Allows
Palm Center, 2010
Allows
43.SWEDEN – 1984
GAO Report, 1993
34
Several changes in policy: Sweden modified its military policies over a period of 11 years before arriving at the current policy of not discriminating against homosexuals. The military had
automatically exempted homosexuals from military service until 1976. In 1979, when the National Board of Health and Welfare removed homosexuality from its Classification of Illnesses
Handbook, the military stopped considering homosexuality as an illness. The military, however, continued to annotate the file records of homosexual individuals. This practice was halted in
1984 when a Parliamentary commission concluded that homosexuality must not disqualify an individual from serving in the armed forces. In 1987, Sweden passed its law prohibiting
discrimination against homosexuals. The law also applies to the armed forces.
ILGA World Wrap Up Survey, 2006
1976
Palm Center, 2009
Allows
44. SWITZERLAND – 1992
ILGA World Wrap Up Survey, 2006
1992
Palm Center, 2009
Allows: “Gays and lesbians are allowed to serve and there is no ban. Their ability to serve is only questioned if their sexual orientation somehow interferes with their service. (Both the Swiss
Military and its gay and lesbian organization agree on this matter).”
Greenwood Encyclopedia, 2010
“As for the Swiss military, the gays in the military debate has been largely absent in Switzerland, not least because the Swiss Army is largely based on conscription. (…) In contrast to civil life,
the military penal code had outlawed same-sex activities.”
45. TURKEY – No
EU LGBT Intergroup, Turkey and Montenegro: LGBT rights part of EU accession conditions
Parliamentarians urged Turkey “to ensure that equality, regardless of sex [...] or sexual orientation, is guaranteed by the law and effectively enforced”. The resolution initially mentioned illegal
forced closures of LGBT organisations and the army’s classification of homosexuality as a psychosexual illness (sic). Progressive MEPs amended the text to also denounce ongoing murders of
transgender people, and condemn the withdrawal of gender and sexual orientation from a draft anti-discrimination law. (http://www.lgbt-ep.eu/press-releases/turkey-and-montenegro-lgbtrights-part-of-eu-accession-conditions/)
35
Greenwood Encyclopedia, 2010
No: “By law, gay men are not allowed in the military. Article 17B/3 of the Compilation of Ailments and Defects (…) lists homosexuality, transsexuality and transvestitism as ‘psychosexual
disorders’ (…). Should a gay man want to be exempted from mandatory military service, he is required to prove his homosexuality to the psychiatric facility of a hospital appointed by the
headquarters.”
ILGA World Wrap Up Survey, 2006
Prohibits
Dalvi, 2004
Prohibits
46. UKRAINE – No
ILGA-Europe, The Equal Dignity, 2000
No: “In the Ukraine guidelines from the Ministry of Education recommend not to employ ‘obviously homosexual persons.’”
Dalvi, 2004
“This requires clarification. According to a representative from the Ukraine Embassy in London, while there is nothing in Ukraine military law and manuals that forbids homosexuals from
serving in their armed forces, defense policy-makers consider this to be a NON-ISSUE. He stressed that no attempt has been made to investigate if there are any homosexuals in the forces.
Furthermore, he added that in his personal view, if a commander discovered that a member of his unit was a homosexual, the individual in question could be transferred or even discharged
from the forces. Therefore, I have added Ukraine to this table.”
47. UNITED KINGDOM – 2000
ILGA World Wrap Up Survey, 2006
2000
Palm Center, 2009
Allows
The Lesbian & Gay Foundation, 2007-2008
36
Allows
2. Insufficient information
3. Conflicting Information
4. No information
Transsexual Rights Issues
1. ALBANIA
MAIN CODING
External Documents
No
All Documents
No
Insufficient
No
ALTERNATIVE CODING
No
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country in which the Commissioner found no evidence of the right.
Liberty Survey (1998)
- Transsexuality is treated in the same way the Albanian authority treats prostitution and pornography, and used to treat homosexuality, namely through the criminal law. In 1994 legislation
was passed to decriminalise homosexuality. However, punishment for being a transsexual is a fine or a term of imprisonment.
- No documents could be changed in 1998.
(The 2002 version states the right was not recognized in 2002.)
37
MARRIAGE
Liberty, Annex 6 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
No (available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-6.pdf)
2. ANDORRA
External Documents
No
All Documents
No
Marriage
No
ALTERNATIVE CODING
No
SOURCES ON DOCUMENTS
Graupner, Helmut & Tahmindjis, Phillip, Sexuality and Human Rights: A Global Overview 60 (Harrington Park Press, 2005
In 2005 Andorra was one of the only member states whose legal system definitely did not recognize a change of gender.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country in which the Commissioner found no evidence of the right.
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998), http://www.pfc.org.uk/node/346
- A Catholic state under the authority of the Bishop of Andorra, transsexuality like prostitution, and abortion is seen as a sin and it is unclear whether treatment is permitted. However,
according to the Ministry of Foreign Affairs, there is no legislation prohibiting transsexuality, and cases would be considered on an ad hoc basis.
- No documents could be changed in 1998.
Liberty, Written Comments in the case of Goodwin v. UK (Annex 3), 2002
The 2002 liberty survey does not provide new information.
SOURCES ON MARRIAGE
Graupner, Helmut & Tahmindjis, Phillip, Sexuality and Human Rights: A Global Overview 60 (Harrington Park Press, 2005)
Not in 2005: The only member states whose legal system definitely does not recognize a change of gender are the United Kingdom, Ireland, Andorra and Albania.
38
Commission Internationale de l’État Civil, Transsexualism in Europe volume 1 23 (2000)
Not in 2000: The main issue is whether transsexuals should be allowed to marry a member of the sex opposite to their new legal gender, ie someone of their own original sex. The answer
would have to be negative in Andorra, where transsexualism is not recognized … (available at http://books.google.com/books?id=nGyPxInLdAC&printsec=frontcover&dq=Transsexualism+in+Europe&hl=en&ei=ApJNTO6vI8LflgfZyPH1DQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCwQ6AEwAA#v=onepage&q&f=fals
e)
3. ARMENIA
External Documents
No
All Documents
No
Marriage
No
ALTERNATIVE CODING
No
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country in which the Commissioner found no evidence of the right.
4. AUSTRIA
External Documents
1993
All Documents
1993
Marriage
1997
ALTERNATIVE CODING
1993
NOTES:
1) Since 1981 there were suggestions that the registrar was authorized to change the sex mentioned on the birth certificate at the request of a transsexual individual.
2) In 1993, a circular by the Ministry of Interior allowed the registrar to make marginal annotations on the birth certificate. This allows changes to frequently used documents and to the birth
certificate (which is not available to the public).
39
3) According to a ILGA Euroletter article, marriage was opened to transsexuals in 1997.
4) The Max Planck Institut says ECtHR and ECJ rulings were used as grounds for the ruling mentioned in Note 2.
Alternative Coding: Though there were changes before, it seems that legal uncertainties were removed only in 1993 (though some administrative changes happened after this date).
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country that has legislation guaranteeing the right.
SOURCES ON DOCUMENTS
Press for Change: Laws, Ordinances, Mandates, The Position of the Transsexual Person’s Rights
Austrian Registry Office, No. 9/1993, 1. Within the suggested enactments of the 10. December of 1981¹, [Zl]. 10.582/ 10- IV/ 4/ 81, there was a submission that it would be a matter of core
justice that the offices of governments vote on proposals to allow the alteration of forenames, by responsible authorities, for transsexual people in recognition of their rights. 2. This proposal
was the subject of discussions on the medical issues and issues of justice between the prime-minister’s office, the Constitutional Service and the Federal Ministries for Health and the
Environment. These discussions resulted in recognition of the new medical understandings, the need for a Federal initiative to ensure a goal that medical measures would at least be matched
by other provisions. 3.1 As such it was held that the § of 30 [PStG] would allow there to be a corresponding registration of the new enabled sex. (http://www.pfc.org.uk/files/Austria_1993.pdf.
Obtained at http://www.pfc.org.uk/node/294 This legislation is also available in the Report by the Commission Internationale de l’État Civil, Transsexualism in Europe (2000))
For more information on the 2009 decision see spreadsheet.
Delvaux, Legal Consequences of Sex Reassignment in Comparative Law
In Austria, it was decided as early as 1981 that the lack of specific legal regulations concerning transsexualism would not prevent a registrar who received a request from a transsexual for the
sex mentioned on the birth certificate to be altered from acceding to the request, on condition that the person concerned had undergone surgery which changed his sex irreversibly. In
Austria, sex is not a legal notion, but a notion of fact established on the basis of statements by qualified persons. A Ministry of the Interior circular drawn up by the late Dr Oskar Edelbacher,
Sektionschef im Bundesministerium für Justiz, allowed the registrar to enter a marginal note on the birth certificate relative to a change of sex provided that the change is attested to by a
medical report by the Institute of Forensic Medicine at the University of Vienna. The report must include the following findings ….
The registrar can make marginal annotation of change of sex only on the authorization of the Minister of Interior. The case is the same for the correlative reference to the change of
forenames ordered by the sub-prefect.
TransX – Austrian TransGender Union
In Austria the treatment of transsexuals was regulated with a decree by the Austrian Ministry of Internal Affairs (1996). Furthermore, in 1997 the Austrian Ministry of Works, Health and Social
Affairs published recommendations of treatment.
By it's decision form June 2006 the High Constitutional Court of Austria declared that the edict was illegal and suspended all of its relevant passages. Nowadays there are several married
couples where one partner could change its legal gender without being divorced.
40
Without new directives it's not clear by now under which circumstances the gender entry of transsexuals will be changed. At first step the decision depends on the civil registry offices.
Austrian Ministry of Internal Affairs, Decree No. 36.250/66-IV/4/96 as of Nov. 27, 1996
Attached the Ministry of Internal Affairs presents the "Decree for Transsexuals 1983" amended in agreement with the Ministry of Justice.
It's especially pointed out that persons concerned at the time of bringing in a marginal note concerning the change of sex must not be married (see para 2.4 of the attacked decree).
Due to the changed situation of law - the Law of Civil Status, Gazette of Publication of the Federal Law No. 67/1984 ("Personenstandsgesetz"), as of Jan. 1, 1984, coming into force - the
required amendments have been made.
The possibility of the change of name has been modified (see para 3 of the attached decree)
It is requested to inform the below mentioned administrative authorities, especially those concerned with civil status affairs.
ÖStA 1/97 (Austrian Public Record Office)
2.4 A marginal note concerning the change of sex in the Book of Births (Geburtenbuch) may only be entered if the male or female applicant is not married.
3. A change of the forename in a gender-specific first name is bound to the change of the sex-entry in the Book of Births.
3.1 Applications for such a change of name should be presented together with the application for entrance of a marginal note under paragraph 2, to avoid an unnecessary loss of time for the
obtainment of new documents for the persons concerned.
3.2 The change of a first name into a gender-neutral first name or into first names, of which at least the first name is a gender-neutral one, may at this time also be approved of without
gender-correcting measures. But the existence of transsexuality should be proved by a corresponding expertise to avoid expenses in the process of changing names.
4. Because of the difficulty of the questions to be judged, the Ministry of Internal Affairs shall in the future also grant support to the authorities in the decisions they have to make. Therefore
applications by Transsexuals for the entrance of a marginal note concerning the change of sex in the Book of Births or for the change of the first name into a gender-specific first name are,
after the conclusion of the preliminary proceedings, i.e. after obtaining of the expertise under paragraph 2, to be presented to the Ministry of Internal Affairs.
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998), http://www.pfc.org.uk/node/346
- In Austria changes in birth registration of transsexuals is in the hands of the administration.
- Under Austrian law a transsexual’s altered gender status is recognised for all legal purposes. A name change is permitted by law, although the process is long.
- Once legal recognition is given to a transgendered person it is possible for them to marry a person of the opposite sex to their new gender.
- In Austria birth certificates are not open to the public.
41
- Official Documents
- A new birth certificate will be issued in the person’s reassigned gender after Gender Reassignment Surgery has taken place. The change would mean that an alteration would occur in the
margin of the original birth certificate, correcting what will be seen as an inaccuracy. In order to change the birth certificate the applicant must apply to a local court which then passes all
information to the Austrian Home Office in Vienna for a final decision.
- Other official documents in Austria (driving license, passport, ID card and National Insurance records) do not record an individual’s sex. However, name changes will be recorded and new
documents issued as and when required. It must be noted that these changes in name must also fall in line with the above requirements, and all documents must first be presented to the
court before being issued.
Trans Gender Europe (2005): steps in Austria. Website no longer available
10.) To successfully pass the "everydays experience" it´s important to drop your old first name, which is specific for your gender,. The official change of name is to be requested at the
Administration Office of the district where you reside, in Wien for example at the Magistratsabteilung 61 (Town Council). At that time the first name still has to be neutral in gender. A second
first name may be chosen freely.
17) With the final expertise you may apply for a change of your marital status at the registry office of your location of place. As soon as the birth certificate has been corrected you may apply
for the modification of your first name into a first name of the sex you live in now.
The birth certificate will not be changed but a comment is written to it that the gender is changed. Then all documents can be changed. Nobody looks at the birth certificate (just to passport
...). But in three cases the public authorities look at the birth certificate: Marriage, Adoption of a child, settlement. In this cases the public authorities will see that you had a change of gender
sometime in your live.
Like for the question on the right of name these answers describe the transformation-process itself (practice), not the written law (no transgender-law).
Driving lixence, passport, identity care ... are changed if the civil status in the birth certificate is changed. Problems with school reports or working reports - no legal claim baptismal certificate
never will be changed.
SOURCES ON MARRIAGE
Graupner, Helmut, Austria: Administrative Court Opens Marriage for Transsexuals, in ILGA Euroletter No. 58, February 1998
1997: Austria´s Administrative Court in a decision of 30.09.1997 opened marriage for transsexuals. According to the ruling a sex change operation effects that the person also legally changes
its gender and therefore it is allowed to marry members of its former (biological) gender. There is no law in Austria regulating sex change operations or the legal status of TransgenderPersons. (available at http://www.france.qrd.org/assocs/ilga/euroletter/58.html#SI)
42
Swatschek, S (2005) Report on ‘Transsexuality and International Private Law’; (Title of the legal opinion given by the Max-Planck-Institut in the proceedings of AZ.I BvL 1/04 of the
Constitutional Court in Germany), Brussels: ILGA-Europe
Allows: Austrian case law exists concerning the right to marry (in relation to transsexual persons with foreign nationality). The competent administration court of appeal grants transsexual
persons who have undergone sex change surgery the right to marry. In this reasoning it refers to Art. 8 and 12 ECHR. Furthermore it refers to the decision of B. v. France of the EctHR and P. v.
S and Cornwall County Council by the ECJ. (See also European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 16
(2010), available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues, confirming that the right exists.)
5. AZERBAIJAN
External Documents
No
All Documents
No
Marriage
No
ALTERNATIVE CODING
No
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country in which the Commissioner of Human Rights found no evidence of the right.
Gender and Development et al., The Violations of the Rights of Lesbian, Gay, Bisexual, Transgender Persons in AZERBAIJAN (2009), available at
http://www2.ohchr.org/english/bodies/hrc/docs/ngos/LGBT_Azerbaijan96.pdf
“Under Azerbaijani law, because there is no recognition of transgender/transsexual women or men, the current punishments regarding sexual assault do not equally protect men and
women.” “Azerbaijan does not currently permit a change of sex on a birth certificate.”
“For transgender people, they are also deprived of the right to marry members of the opposite sex because the state does not recognize their gender identity. In the light of Goodwin v. UK,
according to both Article 23 of the ICCPR and Article 12 of the European Convention on Human Rights, post-operative transsexuals should be recognized by the state as their gender identity
and be allowed to marry people of the opposite sex.”
6. BELGIUM
43
External Documents
2007
All Documents
2007
Marriage
2007
ALTERNATIVE CODING
2007
Notes:
1) Before the 2007 law, the issues were regulated by the courts. There was considerable uncertainty, as Mr. Paul Borghs explains.
2) Birth certificates are interpreted as stating the current identity, as is the case in France.
Alternative Coding: Legislation was passed in 2007.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country that guarantees the right through court decisions and administrative procedures.
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998), http://www.pfc.org.uk/node/346
- Changes in birth register lie in competence of the judiciary.
- In Belgium the law on transsexuality was changed following the landmark case of Van Oosterwijck (1979) where the European Commission on Human Rights recognised for the first time the
idea of a fundamental right of an individual to his or her “gender identity”.
- In the past in Belgium, a change of sex could in theory only be recognised in cases of intersexuality. In practice some transsexuals did, however, obtain permission for the amendment of their
birth certificates and others did not. In the last few years a positive evolution has however been observed where the decision concerned unmarried and childless transsexuals. The law now
treats transsexuals far more favourably than before. The procedure generally takes more than a year. The change of Christian names is an administrative procedure taking also about one year.
- Birth certificates / registration of sex
The official criteria for determining sex for the purposes of registration at birth are genital and gonadal. The same criteria are in operation for legal purposes.
- In Belgium the sex registered by an individual is seen as a matter of current identity and is recognised as such by the law.
- It is therefore possible to change the sex registered on a birth certificate after initial registration. However, this can only be the case after surgery. Transsexuals who do not go through with
the operation cannot alter their birth certificates.
- Official Documents
44
It is possible to have other certificates/official documents altered provided that a birth certificate has been issued in the newly confirmed gender. The following documents require a birth
certificate before issue: identity cards; driving license; passport, social security card.
- Most other official documents also state an individual’s sex and at police interviews, all court proceedings and in banking and in insurance documents pertaining to an individual’s current sex
will need to be shown.
- Identity Cards
There is a national identity card scheme in Belgium which is mandatory. The ID card itself reveals an individuals’ sex. It is possible to change the sex registered on the ID card. However, there
are no procedures to protect transsexual people from unnecessary disclosure of the sex originally registered either in legal proceedings or in contacts with state officials.
- Family and home rights
A M>F transsexual has the right to marry a man (and vice versa) and domestic partnerships involving transsexuals are also recognised in law.
UK Home Office, Report of the Interdepartmental Working Group on Transsexual People, 2000, available at
http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/constitution/transsex/wgtrans.pdf.
Although there is no legislation providing for a change of sex this will, in practice, be recognized following a decision of the Courts. Applications are dealt with on a case by case basis. The
criteria are “a regular, durable and irreversible possession of the new state following medical treatment (hormonal, surgical, psychological) prescribed for therapeutic means, preferably after
a multidisciplinary diagnosis”. The applicant must demonstrate that the comments on their birth certificate no longer correspond to the real sex under which he/she presents him/herself and
has integrated in society, and that the change of sex is not the result of an arbitrary decision or a whim. A note of the legal decision modifying the sex and, if need be, a change of the first
names of the person concerned, is written in the margin of his/her birth certificate.
Marriage: Yes
Following the legal decision to recognise the change of sex, the transsexual person belongs to the recognised sex.
Trans Gender Europe (2005): steps in Belgium (website is no longer available)
The proceeding is based on case law as there is no legislation. For official documents (e.g. identity card, drivers licence : enforcement of the judgement. Other documents (e.g. social security
card ): no procedures laid down. Most documents are changed on presentation of the judgement or the new identity card. The birth-register is modified by a correction in the margin.
(The 2002 Survey also indicates that the birth certificate and other documents could be changed).
Mr. Paul Borghs: Belgium - law on transsexuality
Before the law on transsexuality became effective, it was possible in Belgium to change official documents and to marry someone of the opposite sex (after the official sex-change).
Although, the procedure was not very easy. The law on transsexuality makes it possible to change the official documents through a mere administrative procedure. Before the law became
effective, transsexuals had to go to the court and ask for an official sex-change registration. This was left to the discretion of the court. E.g. a Belgian court refused the official sex-change of a
45
(male-to-female) transsexual married to a woman. The court said that this would lead to a marriage between two persons of the same sex and at the moment of the judgment, this was not
yet possible under Belgian law.
European Court of Human Rights, Van Oosterwijck Case (1980), available at http://www.pfc.org.uk/node/335
16. In Belgium, there is no legislation dealing with transsexualism. In the only case of the kind which appears to have given rise to a criminal prosecution, the Brussels Court of First Instance
held, on 27 September 1969, that sex-change treatment and operations did not of themselves constitute criminal offences. They depended on the free decision of doctors and surgeons, acting
according to their conscience and with the patients’ consent.
17. The drawing up of civil status certificates, including birth certificates, is regulated by the Civil Code. Under Article 55, declarations of birth have to be made before the Registrar of Births,
Marriages and Deaths for the district. The certificate is drawn up immediately in the presence of two witnesses and states, amongst other things, the child’s sex and forenames (Articles 56 and
57).
Rectification of civil status certificates is governed by Articles 1383 to 1385 of the Judicial Code. The person concerned has to file a petition with the Court of First Instance (Article 1383). The
President of the Chamber designated to hear the matter gives directions for the petition to be communicated to the ministère public and appoints a judge-rapporteur; the petitioner is invited
to appear at a hearing in order to present his case (Article 1384). The operatives provisions of any judgment ordering rectification are transmitted to the Registrar of Births, Marriages and
Deaths who will forthwith enter particulars thereof on his registers and endorse them in the margin of the certificate to be amended; thereafter, the certificate will only be issued bearing the
rectifications ordered (Article 1385).
The Government referred the Court to a judgment dealing with the construction of these provisions: in the case of a couple who had obtained a judicial separation but later resumed cohabitation, the Verviers Court of First Instance held on 22 September 1969 that “rectifying a civil status certificate” involves making thereto “such additions, deletions or modifications as may
be necessary to cause it to be in conformity with the law and with the true state of affairs regarding the status of the person or persons it concerns”, including the situation where “a
certificate, though properly prepared in the first place, no longer corresponds to the true state of affairs”.
18. Several Belgian courts have had the occasion to hear petitions for rectification filed by persons who had undergone sex-change treatment in circumstances varying somewhat from one
case to another. The Courts of First Instance of Charleroi (8 June 1973) and Malines (17 June 1975) dismissed the actions, whereas that of Ghent (20 October 1965) upheld the petition.
Another case also resulted in a favourable decision for the petitioner, although the person concerned, unlike D. Van Oosterwijck, had not received a phalloplasty (Ghent Court of First Instance,
24 April 1978).
The Court of Cassation has never been called on to consider the issue.
19. According to the Government, any civil status certificate may also be modified so as to coincide with the person’s current situation by means of an action d’état (an action pertaining to
personal status). This “bringing into conformity” only has effect as regards the future. Up to the present time, apparently no one has instituted such an action with a view to obtaining
recognition of a new sexual identity.
Lemmens, Paul, et. al., Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Belgium, (2008). Available at
http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_BE.pdf
The Act of 10 May 2007 concerning transsexualism provides transgender people with a legal basis for the change of their sex and for the change of their name. (p. 08) Before the Act of 10 May
2007 came into force, there was no statutory regulation of the change of a person’s sex. (p. 74)
MARRIAGE
46
Justus Eisefeld, Homophobia – Legal Survey (2008): Compilation of Passages on Transgender Issues
Exists with the new law: p. 10 Before the Act of 10 May 2007 came into force, there was no statutory regulation of the change of a person’s sex. The Belgian courts tried to fill this legal gap.
However, there was no consensus on the ground on which an official change of sex could be permitted, and some courts even kept refusing the possibility to officially change one’s sex. With
the Act on transsexualism, the legislator has put an end to this uncertainty. Transsexualism is not an obstacle to remain married to a person of the other sex than the original one (or of the
same sex), or to marry a person of the other sex than the new one (or the same sex). (available at http://www.asylumlaw.org/docs/sexualminorities/TransgenderIssuesFRALegalStudy.pdf)
7. BOSNIA AND HERZEGOVINA
External Documents
2001
All Documents
2001
Marriage
2001
ALTERNATIVE CODING
2001
Notes: Latest information is from 2006.
Alternative Coding: No legislation.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country that guarantees the right through court decisions and administrative procedures.
Individual Report on Bosnia and Herzegovina, p. 18:
Transgender individuals are not able to get an adequate health treatment in Bosnia and Herzegovina due to the non-existence of interest on behalf of the medical team. In addition, health
insurance does not cover medical treatment for transsexual persons. To most, recommendations are made about teams and surgeries outside of BiH. Subsequently, however, it is possible to
legally change one’s name and gender on all legal documents. (…)
As for gender reassignment, only after the whole process has been completed, is it possible to apply for change of gender marker in all official documents including, primarily, the
identification number (JMB). The identification number consists of 13 digits. [Unique identification number of a citizen has been introduced in ex-Yugoslavia in 1976, being allocated to every
living person at that time. 13 digits stand for date of birth, region, sex and registered number in the Birth Registry, and control: DDMMYYYRRSSSC.] The first seven specify the date of birth, the
following two specify a region (10-19 is for Bosnia and Herzegovina, 17 being for Sarajevo, for example), the following three stand for person’s sex and registered number in the Birth Registry
(000-499 for males and 500-999 for females), and the last number is the control number. [Article 4, Law on Unique Identification Number, Sluzbeni glasnik BiH, 32/01.] Upon change of sex,
the JMB is changed. In order for a personal JMB to change, the relevant medical documentation needs to be submitted by a doctor or medical team. Medical documentation can also mean a
document specifying that gender reassignment and full transition have been completed and achieved. The same procedure is used when a gender marker has been written wrongfully by
mistake. These procedures are of an administrative nature and do not involve court proceedings.
47
Organization Q, Prava i slobode LGBTIQ osoba u Bosni i Hercegovini7 [The Rights and Freedoms of LGBTIQ Persons in Bosnia and Herzegovina] 41 (2006), available at
http://www.queer.ba/bs/content/prava-i-slobode-lgbtiq-osoba-u-bosni-i-hercegovini (google translation)
BiH currently does not allow sex reassignment services for persons who identify as transgender or transsexual. There is no medical / professional or psychological support / counseling in this
regard. Moreover, transgender and transsexual people face discrimination and harassment when they turn to for professional help. People who change sex to mostly work outside
BiH. However, this still leaves the question of change of identity documents, identification number and the like, for which Bosnia has no standardized procedural resolution.
8. BULGARIA
External Documents
1998
All Documents
1998
Bulgaria
1998
ALTERNATIVE CODING
No
Notes:
1) the Ministry of Public Health Instructions RD-09-18 and RD-09-218/1998 allow individuals to apply to the courts to change gender and forename on birth certificates.
2) The 1998 Bulgarian Law on Identity Documents requires a change to identity documents when there is a change in name, unified citizen’s code or sex. Therefore, changing documents is not
only a possibility, but a requirement for transsexuals.
3) The sources do not say what is the nature of the Bulgarian Birth Certificates. However, it does say that the basis for changing the birth certificate is that the wrong gender is stated.
Alternative Coding: No legislation.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country that guarantees the right through court decisions and administrative procedures.
7
In the original: BiH trenutno ne omogućava usluge promjene spola za osobe koje se identificiraju kao transrodne ili transeksualne. Ne postoji medicinska/stručna niti psihološka
podrška/savjetovanje u tom pogledu. Štaviše, transrodne i transeksualne osobe nailaze na diskriminaciju i šikaniranje kad se obrate za stručnu pomoć. Osobe koje promjene spol to uglavnom
rade van granica BiH. Međutim, to i dalje ostavlja pitanje promjene ličnih dokumenata, matičnog broja i sličnog, za koje BiH nema proceduralno standardizovano rješenje. (page 41, second
paragraph)
48
Updated FRA Report
Requirements for change of name and gender on documents: Only changes of identity documents are possible (gap in legislation). (see table on p. 17)
Correspondence from Ms. Desislava Petrova
CHANGE OF NAME
According to article 19, paragraph 1 from the Civil Registrations Act, “Changes of one’s given, father’s or family name may be allowed by the court
when requested in writing by the person concerned when the name isridiculing, disgracing or publicly unacceptable or there are other compelling circumstances.” “Other circumstances” is a
concept, which can be projected to every individual case; in our situation “transsexuality” is an important circumstance.
For the change of name of Bulgarian citizens according to article 19, the following documents are needed.
- Application from the person;
- Identity document;
- Document based on which the change of name should be made (Court decision).
The documents are handed to the Local District Court and together with them an appeal should be submitted. In reality the judge initiates a proceeding, and appoints a triple psychiatric
expertise and experts (psychiatrists).
The court also requires:
- Sexologycal-psychiatric expertise from psychiatrist-sexologist that is acquainted with the person;
- Document from the local psycho dispensary, that the person is not registered there;
- Criminal records from the Court.
After completion of the case, the Court issues an decision for the change of name and gender, with which the person can submit documents for a new id card, drive license etc.
CHANGE OF DOCUMENTS
According to article 9, paragraph 1 from the Law for the Bulgarian Identification Documents “For change of the name, the unified citizen's code, the sex, the citizenship or for substantial and
permanent changes of the image the person shall be obliged to obtain new identification documents within 30 days”
1998 Law for the Bulgarian Identification Documents (google translation)
49
Art. 9. (1) (amend., SG 108/00) For change of the name, the unified citizen's code, the sex, the citizenship or for substantial and permanent changes of the image the person shall be obliged to
obtain new identification documents within 30 days. (available at http://www.mvr.bg/NR/rdonlyres/C1CF73E2-D317-4F62-976217A7A329A15A/0/Law_BG_Identification_Documents_EN.pdf)
Kukova, Slavka, Legal study on Homophobia and Discrimination on Grounds of Sexual Orientation, report on Bulgaria (2008). Available at
http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_BG.pdf
The Bulgarian Identity Documents Act and the regulations for its application introduce the requirement to change identity documents following gender alteration, as well as the rules on how
this should be done. In order for a new identity document to be issued, the individual will need to present an 'official document confirming the alteration, as well as a certifying document
from the local municipal administration to substantiate the change in the personal registration card, where the amendment was not entered in the National 'Population' Database. Such
official document can be only a court decision in the case of gender alteration.
1998 instructions of the Ministry of Public Health:
In Bulgaria, after undergoing a sex-change operation either in the country or abroad (according to the Ministry of Public Health instructions RD-09-18 and RD-09-218/1998), individuals may
apply to the courts for the gender and forename recorded on their birth certificate to be changed. The court may grant the request, on the ground that the wrong gender was stated on the
birth certificate and that there is legitimate reason to change the forename (see Art. 124 of the Act on individuals and the family, Art. 15 of the Act on the names of Bulgarian citizens and Art.
67 of the Civil Status Order). The transsexual must prove by means of witness testimony and medical reports that he or she is genuinely transsexual.
MARRIAGE
Correspondence from Ms. Desislava Petrova:
According to the Constitution, marriage in Bulgaria is allowed only between woman and man. If the transsexual person wants to marry with someone from the same sex, this could be made
only if the person has gone through the whole process of sex reassignment surgery operation and officially has the new gender.
Kukova, Slavka, Legal study on Homophobia and Discrimination on Grounds of Sexual Orientation, report on Bulgaria (2008)
No restrictions: Normative acts regulating the contracting of marriages do not stipulate restrictions to the marriage following gender alteration, as long as the partners are of different sex at
the time of the marriage. If the partners are formally of the same sex, there are no legal grounds for entering a marriage. (p. 33) (available at
http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_BG.pdf)
European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 16 (2010)
No law (available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues)
9. CROATIA
External Documents
All Documents
Marriage
50
2005
2008
2008
ALTERNATIVE CODING
No
Note: We still need more information.
Alternative Coding: No legislation.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country that guarantees the right through court decisions and administrative procedures.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
"Privacy is not always respected during such processes. For example, in Croatia, the Personal Names Act [footnote Personal Names Act, OG, No. 69/92] prescribes that after receiving a request
for a change of name, the municipal administrative body is obliged to publish an announcement of the submitted request on a public notice board. The State Registries Act then prescribes
that a change of personal name and sex are entered as additional entries. This means that if a person changes her name from Marko to Ana, she will have a birth certificate in which ‘Marko’
will be entered in the basic entry, and below, in small letters at the bottom of the document, the following note would be added: “By the decision of the municipal administrative body No. ...,
the name was changed to Ana on the date ... .”). As a result, all citizens are able to find out about the applicant’s change of gender and name when the data is published on the notice board,
and later on that information is also visible in birth certificates." (http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf p. 90)
Liberty Survey (1998):
Gender reassignment surgery was carried out in the former Yugoslavia. The state of the law in the Balkan states is now unclear.
TransGender Europe, Questionnaire: Croatia/Zenska Soba (2005)
It is possible to change all documents. The gender in the birth certificate is not changed, but amended so there is record on the document of the change. The (gender-specific) national
identification numbers can also be changed, but this creates a problem for transsexuals because the new numbers do not carry their past information, so it is like the old person ceased to
exist.
“All documents can be changed, however, the birth certificate is not re-issued but amended so there is record on the document of the change. Our national identification numbers are sexspecific and so when that is changed your past gets wiped out, as if you never existed.”
10. CYPRUS
51
External Documents
2002
All Documents
2002
Cyprus
2002
ALTERNATIVE CODING
2002
Notes:
1) The 2002 law allows changes to frequently used documents (passport, identity card and electoral identity booklet) and also to the birth certificate in the population archives.
2) We do not know the nature of the birth certificate in Cyprus.
3) We do not have information on marriage.
Alternative Coding: Legislation was passed in 2000.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country that has legislation guaranteeing the right to change documents.
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998), http://www.pfc.org.uk/node/346
There is no mention of transsexuality in Cypriot legislation. However, legislation currently being passed to decriminalize homosexuality will also cover transgendered people.
Thematic Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation (2008)
The procedure for notifying the authorities regarding the change of name and of sex does not require any of psychological, psychotherapeutic or psychiatric assessment or treatment or
diagnosis. A person who undergoes an operation for the change of sex must submit a medical certificate about this operation, together with a sworn affidavit regarding the change of name, to
the District Administration authorities. The District Administration will forward the medical certificate to the Ministry of Health for approval and once this is approved, a new passport, identity
card and electoral identity booklet is issued to the applicant. The population archives department of the Interior Ministry issues a new birth certificate with the new name and the new sex but
the old certificate is neither cancelled or repealed and is retained on file. / Cyprus/Population-data Archives Law No. 141(I)/2002 (26.07.2002), article 40. (p. 20)
Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 24 (2010), available at http://ilgaeurope.org/home/issues/transgender/external_resources_on_transgender_issues
Confirms that Cyprus recognizes the change but does not mention a date.
MARRIAGE
52
European Parliament, Policy Department, Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 16 (2010)
No law: (available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues)
11. CZECH REPUBLIC
External Documents
2000
All Documents
2000
Marriage
2000
ALTERNATIVE CODING
2000
Notes:
1) Since the 1970s it was possible to change most documents, as a consequence of the alteration of the birth certificate.
2) However, the personal identification code could not be changed.
3) Because changes to all documents only became available in 2000, this date was assigned as the date for marriage as well.
Alternative Coding: Since the last important legislative change happened in 2000, I used this date.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country that has legislation guaranteeing the right to change documents.
Individual Report on the Czech Republic, p. 29:
A transgender person may change his/her name in accordance with the Act on the Registry Office [Czech Republic/Zák. c. 301/2000 Sb., o matrikách, jménu a príjmení (Act. No. 301/2000 Coll.,
Act on Registry Office), available at http://portal.gov.cz/wps/portal/_s.155/701?number1=301%2F2000&number2=&name=&text = (Czech only), (opened on February 19, 2008)]. The Registry
Office allows for a name change upon the request of the person concerned and upon provision of a certificate from the medical centre where the surgery takes place. The law stipulates that
the office shall allow a ‘neutral’ name and surname (Sec. 72). The law stipulates the condition of either citizenship or permanent residence for the possibility of a name change. There is also a
general clause about the possibility of a name change for serious reasons. (http://fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_CZ.pdf)
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998), http://www.pfc.org.uk/node/346
There are no legal provisions dealing with transsexuals in the Czech Republic. Gender reassignment surgery is, however, legal. According to administrative practice which is under the
discretion of the Registrar General (per Richard Kingham, Consul) alteration of birth certificates, name changes and the right to marry would follow automatically as it is “necessary for a citizen
who requires complete and legal contact with the authorities”.
53
Trans Gender Europe (2005): steps in Czech Republic (website not longer available)
All existing documents (including birth certificate, identity card, driving licence, passport, highschool certificate, university diploma, library card, and health insurance card) can be altered.
Once the whole process is completed and the appropriate gender identity fully recognized by the Czech bureaucracy, one is allowed re-marry in accordance to the marriage law (i.e. marry a
person of the opposite sex) and adopt children. The sex-entries in corresponding official files (namely the files archived at local and central registers of births) are in fact altered prior to the
new identity papers being issued to the person concerned. At the moment there are no files that cannot be altered. The documentation concerning the change of name (consisting of a form
signed by the applicant and a brief medical report written out by the attending sexologist) is archived at the register of births, along with the original birth certificate. Still, the change itself is
not recorded in identity papers (one is issued a brand new copy of each) so only the officials employed at the local register of births and possibly the authorized employees of the Ministry of
the Interior as well are in know.
Ambassador – Correspondence of August 12, 2010:
Yes, indeed transexuals can alter official documents in order to reflect their new gender. However, this can be done only after the surgery intervention. The conditions for surgery to change
the sex are stipulated in the law on helthcare of the population para 27 a) law number 20/1996. Afterwords, one can ask to change the data in the register of population. Very often
transsexuals in the Czech Republic change also their first names and surnames (as the ending of surnames in most of the cases clearly identify the sex of the person) and they adopt some
neutral names. At the same time transexuals can ask to change their personal identification number which also clearly identifies the sex of the person (law number 133/2000) and also their
passeports (law number 329/1999) and their IDs (law number 328/1999).
Ambassador – Correspondence of August 13, 2010:
Due to the non-existence of a specific law on the transexuality and the rights of transexuals in the Czech legislation, I understand that it´s quite difficult to identify the real date when those
rights became effective. One can say that in 1977 the notice to the law on register allowed changes in the register, but it didn´t mention the word „transexual“. However, it´s commonly
assumed that since the seventieth (so most probably since the entrance into force of this law) it was possible to change the sex also in the official documents. Once the data are changed in the
register, one can assume that this is a sufficient basis for the change of all documents (passeports, ID cards, etc.) even if it was not stipulated in any specific law before the ninetieth. The only
problem that could have occured is the change of personal identification number – there I could imagine some difficulties, clearly solved afterwords by the law number 133/2000.
In practice, there is a problem that all those changes don´t have a retroactive character. This might be a problem for instance as to the recognition of diplomas, that´s why the Ministry of
Education adopted in 1998 a regulation number 29 210/98-20 allowing the publication of diplomas obtained before the change of the sex under the new name.
To sum up one can say that to change the sex in official documents became possible with the law 1977 without a specific mentioning of the transexuals. The rights of the transexuals had been
improved by a set of laws in the ninetieth and in 2000 (some mention explicity the transexuals some not).
Procházka, Ivo, The Czech and Slovak Republics, in Sociolegal Control of Homosexuality: A Multi-Nation Comparison, by Donald J. West & Richard Green (Plenum Press, 1997)
Transsexuals can request the medical services necessary for sex reassignment. Legal change of gender is permitted under the law concerning registers of births and deaths (268/1949), which
covers mistakes and changes of gender. The law covering the use and change of first names and surnames (55/1950) allows transsexuals to change both names to accord with their new
gender. The first sex reassignments were done by sexologists in the 1960s; in the 1970s, sex reassignments had to be sanctioned by legal instructions from the ministeris (Brzek & Síová, 1983).
This law is applied in Slovakia also, but there is little professional accetance of sex changes there (Molcan et al., 1989).
54
Working Group for the Issues of Sexual Minorities of the Minister for Human Rights and National Minorities, Analysis of the Situation of Lesbian, Gay, Bisexual and Transgender Minority in
the Czech Republic (2007). Available at http://www.vlada.cz/assets/ppov/rlp/sexualni-mensiny/Analysis_EN.pdf
“In the Czech Republic, it is possible to request an official change of name and sex; this possibility has existed since the 1970s.” (p. 29) “A legal change of sex including the issuance of a new
birth certificate then is derived from the Population Registration Act in which, however, the term transsexual is not directly listed. On the contrary, a change in the Czech birth registration
number is explicitly amended by the Act on Register of Population and Birth Numbers.” [Section 17 of Act no. 133/2000 Coll. on Registration of Population and Birth Numbers and on
Amendments of certain Acts.](p. 29) “Transgender people, who don’t want or cannot undergo a sex change operation may not request a change at the Registry Office or even a change in the
birth registration number. (p. 30) Legal continuity of transsexual people is generally recognized in the Czech Republic. There still exist though a number of situations where this right is not
respected by public or private subjects. This fact often arises from the system of birth registration numbers, which are the basic instrument for documenting the population.” (p. 30).
“Transsexuals are thus often forced to pay widely varied administrative fees, and on the contrary they are refused various advantages arising from their previous history. This problem is
mainly an issue regarding private subjects (banks, insurance companies), but also taking part in smaller measure are public subjects (e.g. Library)”. (p. 31) “In other cases, no asset detriment
arises, but mainly the right to privacy is violated, because there arises the need to repeatedly prove their legal continuity and submit for such purpose confirmation of the change of sex by
which transsexual people are exposed to the increased risk of further discrimination.” (p. 31)
Commission internationale de l’état civil, Transsexualism in Europe Volume 1 12 (2000)
In Slovakia, two ministerial decrees were issued in 1981 [available in the book under “national legislation concerning transsexuals”], one by the Ministry of Interior and the other by the
Ministry of Health. The first deals with the procedure under which transsexuals, after undergoing surgery, may have the forename, surname and gender recorder in their birth certificate
amended. Under the second, amendment of civil status documents requires a formal declaration by a designated medical institution. Consequently, sex-change operations are not prohibited
in Slovakia. They seem very rare, however (there is no relevant case-law), notably on account of human reasons and also of practical reasons to do with the outdated nature of current
regulations. Proposals to update these regulations have so far come to nothing. The procedure for amending the gender recorded on a transsexual’s birth certificate is purely administrative: a
medical institution certifies that the syndrome is irreversible and that surgery has been carried out. By presenting this declaration to the local administrative authorities, transsexuals may
request that their forename and surname be changed (this latter aspect is peculiar to Slovak law). If the request is granted, the gender recorded on the birth certificate may also be changed
and a new certificate issued. finally, all other administrative documents may be re-issued to match the new identity. In theory, a sex change cannot be recognized if the operation was carried
out abroad since the medical certificate required to change civil status documents must be issued by a Slovak institution after an operation carried out in Slovakia. However, according to the
Ministry of Health expert, a Slovak medical institution should be able to issue a certificate even if the operation was carried out abroad, so that civil status documents could be amended
provided the syndrome was irreversible. (available at http://books.google.com/books?id=nGyPxInLdAC&printsec=frontcover&dq=Transsexualism+in+Europe&hl=en&ei=ApJNTO6vI8LflgfZyPH1DQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCwQ6AEwAA#v=onepage&q&f=fals
e)
12. DENMARK
External Documents
1994
All Documents
1994
Marriage
1994
55
ALTERNATIVE CODING
1994
Notes:
1) Changes in documents are carried out through an administrative procedure after sex reassignment surgery. There seems to be no specific law that mandates this procedure. The only piece
of legislation that is mentioned is the Sterilization and Castration Act of 1994. I looked it up and it does not mention changes in documents.
2) There is no clear reference to the meaning of the birth certificate.
Alternative Coding: Legislation was passed in 1994.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Denmark is cited as a country that has legislation allowing change of gender in documents. (http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 85)
Delvaux, Legal Consequences of Sex Reassignment in Comparative Law
“Danish Law of 11 May 1935 on voluntary castration which allows the voluntary castration of individuals whose abnormal sexual instincts might cause them to commit crimes, result in
physical degeneration or cause serious moral distress.” [Does not mention a law regarding change of documents and marriage]
Liberty Survey (1998):
- Relies on administrative action to deal with transsexuals.
- Changes in the birth register are also in the competence of the administration in Denmark.
- Only when the surgical gender reassignment has taken place are they accorded the same rights as their new gender.
- In Denmark a person who wants to obtain permission to change his/her sex will be referred to a special department of the psychiatric ward of the University Hospital of Copenhagen. After a
consultation period of two years, a recommendation is submitted to the Directorate of Family Affairs, under the Ministry of Justice. The Directorate gives final permission. According to
the Sterilization and Castration Act, which in these cases is applied mutatis mutandis, it is a condition for the operation that the person concerned is instructed by a doctor about the
character and direct consequences of the operation and about the risks connected with the surgical intervention.
- When the change of sex has taken place, the person involved will on request be given a new first name in accordance with the new sex. These alterations will be made automatically so that
after the change of name the case is sent to the registration authorities, which register the person in the same way as indicated in other cases (newly born, people from abroad etc.). With
regard to the name, the change is made by way of an application to the local authorities. To ascertain that the person has had the operation, the medical certification is examined before the
application for a new name is complied with.
- No specific legislation has been adopted as yet. However, the cases are dealt with under Article No. 661 (12 July 1994) on Sterilization and Castration. This legislation was originally catered
towards mentally retarded and criminal people and is therefore not particularly popular amongst the transgendered community. The relevant article is Article 13.
- Birth certificates / registration of sex
Every parish in Denmark keeps an account of the Ministerial Book which notes all birth registrations. The sole identification for registration at birth are genitalia. However, for legal purposes
psychological factors are considered, as well as genital and gonadal. If there is a conflict between factors the genital and gonadal factors are considered conclusive evidence. This occurs
56
through general administrative practice. Birth certificates and ID cards state the sex of each individual. These documents are relevant for legal purposes. Legally, a person’s sex has its main
relevance when it comes to marriage.
- The sex registered on all documents reflects and individuals’ current identity, and gender reassignment is considered under the law (through administrative practice) as a change of sex.
- It is possible to change a birth certificate in Denmark providing a person can prove that a surgical gender reassignment has taken place. This procedure is therefore only open to transsexuals
after surgical reassignment. Once the replacement birth certificate has been issued there are no reasons for using the former birth certificate and the person will not be asked to issue it at any
time.
- A change in birth certificate is only available to post-operative transsexuals. Once amended the original birth certificate will carry no legal weight.
- Other documents will be provided in the new gender provided that a new birth certificate has been issued.
- Official Documents
ID cards, driving licenses and passports require the production of a birth certificate before reissue. The ID card is the most relevant document. The sex of a person mentioned on the ID card is
relevant for the issuance of other official documents like driving license, passport and others. But also the birth certificate is changed and is often necessary for the issuance of other
documents.
- The police might check an individual’s identity in criminal cases. Very often you will have to give your personal identity code which reveals your registered sex. This obviously has greater
negative ramifications for pre-op transsexuals.
- Denmark’s national ID card is mandatory. It reveals an individual’s sex, however it is possible to change the sex noted thereon. The card would not disclose the birth-sex of a person, only the
present registered sex.
- A transsexual in their reassigned gender has the right to marry under Danish law and domestic partnerships involving a transsexual person are recognised under Danish law. Consequently,
transsexuals have the same spousal and partnership rights as other citizens, although the law does not distinguish between transsexuals and other citizens.
Trans Gender Europe (2005): steps in Denmark
You have to send your documents to the issuing authority and they change your documents automatically; (see question on civil status for the conditions). For changing the ID documents one
contacts the home office - regarding school papers, certificates etc. one contacts the specific schools, universities etc. and shows the new id-papers. In the first case, one contacts the home
office - regarding school papers one contacts the specific schools, universities etc. and shows the new id-papers
NEVER CHANGING DOCUMENTS:
Documents of heterosexual marriage, documents of same sex marriage. The old ID (CPR number etc.) will never be erased and the old ID refers to the new one. One's 'old' id-or social security
number will never be completely erased from official tax etc. papers - this is for the benefit of others who might be looking for you under your old name.
JURISDICTION
Originally a eugenic law from the 1930´ies, the present castration law is only applied to transgender and transsexual cases and is in this case to be regarded as a transgender or transsexual law
in Denmark. The law forbids any operation on the sexual organs, not explicitly allowed by the Minister of Justice. You can apply to the MOJ for SRS to be allowed in your case. There is no right
to appeal the MOJ's decision but one can apply again and the Minister of Justice will refer to the former decision. There is no possibility to bring the decision of MOJ before a court that would
rule by the European Convention of Human Rights.
Commission internationale de l’état civil, Transsexualism in Europe Volume 1 12 (2000)
57
Allowed in 2000: In Denmark, sex-change operations may be authorized by the sexological clinic at the university hospital in Copenhagen … When the operation has been carried out, the
gender and forename recorded in the birth certificate are changed, together with the identification number in the national register. If the operation was carried out abroad, the transsexual
must provide a medical attestation and the application for a change of gender recorded in his or her civil status documents must also be submitted to the sexological clinic at the university
hospital in Copenhagen and to the Judicial Medical Council. (In Denmark, sex-change operations may be authorized by the sexological clinic at the university hospital in Copenhagen … When
the operation has been carried out, the gender and forename recorded in the birth certificate are changed, together with the identification number in the national register. If the operation
was carried out abroad, the transsexual must provide a medical attestation and the application for a change of gender recorded in his or her civil status documents must also be submitted to
the sexological clinic at the university hospital in Copenhagen and to the Judicial Medical Council.
UK Home Office, Report of the Interdepartmental Working Group on Transsexual People, 2000
Procedures: A change of gender will be recognised in Denmark. Anyone seeking to undergo gender reassignment surgery must notify the Civil Law Division (CLD) of the Ministry of Justice prior
to the operation. The CLD will “authorise” the operation to take place and will also inform the Civil Registry who will amend the birth certificate. The original entry in the Registry will be struck
out and will refer to the new entry giving the new gender. The fact that this was the result of gender reassignment surgery will be noted in the observations. The CLD also gives the individual
the right to apply for a new CPR (civil register) number. This number is normally assigned to each citizen at birth (or on taking up residence in Denmark) and is used as a single ID number for all
dealings with the authorities (educational, social, accommodation, tax, etc.). The last number identifies the gender.
Citizens or residents who undergo gender reassignment overseas can apply retrospectively for the same recognition on application to the CLD, on provision of relevant medical
documentation. A person is deemed to have acquired the new gender after gender reassignment surgery.
Marriage: Yes
Following amendment of the birth certificate and the assignment of a new CPR number, the transsexual person is fully recognised in their new gender and is equal before the law.
Liberty, Written Comments in the case of Goodwin v. UK, page 2
Allowed in 2002.
ILGA-Europe and TransGender Europe, Transgender Euro Study, 2008, at page 22
Allowed in 2008
Justus Eisefeld, Homophobia – Legal Survey (2008): Compilation of Passages on Transgender Issues
Danish National Board of Health. (available at http://www.asylumlaw.org/docs/sexualminorities/TransgenderIssuesFRALegalStudy.pdf)
MARRIAGE
Liberty, Annex 6 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
At least since 2002: available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-6.pdf
58
European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 16 (2010)
Yes#: (available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues)
13. ESTONIA
External Documents
2000
All Documents
2002
Marriage
2002
ALTERNATIVE CODING
No
Notes:
1) There is a 2000 law that allowed changes to most documents, starting with the personal identification code and the birth register, and then moving on to frequently used documents that
are issued on the basis of the first two.
2) There is a 2002 law that allowed changes to the Pension Insurance Register.
3) There is no date for marriage.
Alternative Coding: No legislation.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that guarantees the right through court decisions or administrative procedures.
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998)
- According to the Estonian Embassy in London Gender Reassignment Surgery is legal in Estonia. The Estonian Consul stated that postoperative transsexuals would be allowed to marry and
change their birth certificates, as there is no legislation prohibiting this. There is, however, no legislation directly permitting this at the moment, although this area, amongst others, is being
considered by the Estonian government. (available at http://www.pfc.org.uk/node/346)
Google translation of Population Register Act (2000), §52:
§ 52 Formation of a new identification number
(1) Authorized forms and the controller gives a person a new personal identification code:
59
1) changing the child's parentage data application on the basis of a parent or guardian;
2) a person making a declaration of personal data by sex and a corresponding license, medical certificate of authority;
3) of this Act, § 21, paragraph 1, points 3 and 4 of the population register of personal data, correction or amendment.
(2) notify the processor to issue a new identification number and mesaajatele receiving data from the population register of the databases maintained by them or for inclusion in the
documents issued.
(3) issuing a new identification code organizes the vital statistics office of the new birth certificate and identity document, the issuing authority to issue a new identity document.
Paragraph 31 of the State Pension Insurance Register:
§ 31Entries in the register of archives
(1) Personal data shall be deleted from the registry and the actual data entered in the register among the archives, if the person no longer subject to § 4 of the items included in the registry or
the information is entered in the register or the details of the person is registered under false documentation, or errors in the entry.
(2) Data entry is added to the archive:
1) archival data base and the time of entry;
2) an incorrect entry in the event - an incorrect entry by a person;
3) sex change is - a new personal identification code;
4) adoption of - the historical data of the child.
(3) Registration of personal data stored in the archives of 75 years of entry of these archives. Paragraph 2, paragraphs 3 and 4 of the cases, the personal data stored in the registry archives 75
years after the person ceases to register the item.
(4) Every day is the total current from a backup of the registry, that is to remain for at least weeks. Once a year is the total current from a backup of the registry, which records are kept on
record permanently.
Thematic Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Estonia (2008). Available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgsoNR_EE.pdf
Section 49 of Rahvastikuregistri seadus [Population Register Act] regulates the formation and granting of the new personal identification code for the person who has undergone the
gender/sex change, because the code is formed on the basis of a person’s sex and date of birth. According to § 52 of this Act, the new personal identification code will be formed and granted
by an authorized processor ‘upon amendment of the data on the sex of a person on the basis of an application of the person and a certificate of a medical institution holding a corresponding
licence’. The formation and granting of the new personal identification code is also the basis for the issuance of a new birth certificate, which will be organised by the vital statistics office (§ 52
of the Population Register Act). The birth certificate is the basis for a new passport. In addition, the regulation of 18.01.2002 no. 28 ‘Riikliku pensionikindlustuse registri’ pidamise põhimäärus
[Statute for managing the ‘state pension insurance register’] is important since it regulates the state pension insurance register. The data in this register is the basis for accounting for social tax
paid by or on behalf of persons, their years of pensionable service and accumulation period, and the procedure of determining and paying their state pension and benefits (§ 4 (2)). Paragraph
31 of this regulation provides for a change of data and personal identification code upon a change of gender/sex.
60
Liberty, Annex 3 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002), available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-2.pdf
Did not allow alterations to the birth certificate in 2002, but did allow it for other documents.
MARRIAGE
European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 16 (2010)
Yes#: (available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues)
14. FINLAND
External Documents
1988
All Documents
1988
Marriage
1988
ALTERNATIVE CODING
2002
Notes:
1) The birth certificate represents the current identity.
2) 1994 allowed changes. Another law was passed in 2002.
3) Previously to this law, a 1988 ruling by the Supreme Administrative Court required the Population Register Centre to change the PIN number and the first name of the individual. I did not
find any reference to changes to other documents based on this decision.
4) Marriage is possible with the change in the PIN number. This has been possible since 1988.
Alternative Coding: Legislation was passed in 2002.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity, 2011
Country that has legislation guaranteeing the right to change documents.
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998), http://www.pfc.org.uk/node/346
61
- In 1994 Finland passed transsexual-specific legislation. The Department of Justice had been working on the legislation for many years and it follows similar grounds to the Swedish model.
- In Finland, sex is registered at birth by a doctor. The official criteria is genital, which is also the official criteria for legal identity. If there is any problem, legal sex overrules genital sex (even
though they are both the same).
- The purpose of registration of sex is said to be for military draft.
- The sex registered on the birth certificate reflects current identity. Gender reassignment is recognised by the law as a change of sex. It is possible to change a birth certificate in Finland
following a recommendation and diagnosis by a psychiatrist. This procedure is open to transsexuals both before or after surgery.
- Once a new birth certificate is issued the old one becomes invalid. Other official documents can carry the “new” gender regardless of whether or not a birth certificate has been issued.
- Finland’s national ID card is not mandatory, but does reveal an individual’s sex, which can be altered. There is also a procedure to protect transsexual people from unnecessary disclosure of
the sex originally registered.
Google Translation of a summary of the 1988 decision, found on the FINLEX database:
PERSONAL IDENTITY - THE POPULATION REGISTER
Registration:
1449/2/87
Date:
18.8.1988
True:
3166
Released:
88 / 4
Documentation showing that the person whose first name was Rauno Kalervo provincial government decision changed names Ritva Pirkkoliisa of man's identity was proven to be the
population of books by Article 6 § 'within the meaning wrong. As the population registry was the center of the contested decision, refused to grant him a new personal identification number,
the Supreme Administrative Court annulled the Population Register Centre's decision and remitted the case to the population center of the new, a woman belonging to an identification
number on him.
UK Home Office, Report of the Interdepartmental Working Group on Transsexual People, 2000, available at
http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/constitution/transsex/wgtrans.pdf
Treatment of the transsexual condition or a change of legal gender is not dealt with by legislation, but by established interpretations and different established practices. Current practice is
based on a 1988 ruling by the Supreme Administrative Court under which the Population Register Centre will change the PIN number designating the gender of a transsexual person.
A transsexual person may apply to a Local Register Office (LRO) to change his/her first name and PIN number (which shows a person’s gender and is widely used for identification purposes)
Marriage: Yes
Following the change of the transsexual person’s PIN number, they have the same legal status as others of their acquired gender. (UK Home Office, Report of the Interdepartmental Working
Group on Transsexual People, page 66, 2000)
c
Announcement to the administrative council/ officials. Decision of them. The full legal recognition is done in the acquired gender, when you have the identity papers. The past never can be
changed. The officials have information of you always in their files.
62
Commission internationale de l’état civil, Transsexualism in Europe Volume 1, 16 (2000)
In Finland, transsexuals can have the gender on their birth certificates amended and their forename changed by presenting a medical certificate stating that they have undergone surgery in
the country. However, if the operation was carried out abroad, the sex change is not recognized. The situation may alter, however, since a Bill has been drawn up under which transsexuals
would be able to ask for the gender recorded on their birth certificates to be changed…
Scheinin, Martin & Makkonen, Timo, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Finland (2008). Available at
http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_FI.pdf
The Act on the Recognition of the Sex of a Transsexual Person [laki transseksuaalin sukupuolen vahvistamisesta (563/2002)] entered into force in January 2002. Under that Act, the competent
authorities shall recognize (officially confirm) that a person belongs to the opposite sex than that recorded into the population register, provided that he/she (i) provides a medical report
testifying that he/she permanently experiences being a member of the opposite sex and that he/she lives in that gender role and that he/she been sterilized or is otherwise incapable of
having children; (ii) is an adult (over 18 years of age); (iii) is not married or in a registered partnership (exceptions apply) and is a Finnish citizen or is resident in Finland. The competent
authority for this is the local register office (“maistraatti”). A person whose new de jure sex has been recognized by the authorities is to be treated as a person of that sex for all purposes
under the law. Under the Name Act [nimilaki (695/1985)] one can simply notify (no permission required) the local registry office of one’s new first name – provided e.g. that the name is not
offensive. The change of the first name by way of simple notification procedure can be done only once, after which the change of the name is subject to an application procedure under which
a person’s first name can be changed if there are “valid grounds thereto”. Whereas the Name Act prohibits men from having women’s names and vice versa, this is no obstacle where the new
sex status has already been officially recognized. In practice transsexuals have been able to register their new first name already after having started hormonal treatment, i.e. before having
had their “new” sex officially recognized.
MARRIAGE
ILGA Europe, Transgender EuroStudy: Legal Survey and Focus on the Transgender Experience of Health Care 23 (April 2008)
Yes#: available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues
15. FRANCE
External Documents
1992
All Documents
1992
Marriage
1992
ALTERNATIVE CODING
No
Notes:
63
1) The 1992 Court ruling in response to the ECtHR allowed for changes in documents and marriage.
Alternative Coding: No legislation.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity, 2011
Country in which the right is guaranteed through court decisions or administrative procedures.
Updated FRA Report
Requirements for name and gender change in documents: Requirements set by case law, legal and medical procedures uneven throughout the country. (see table on p. 17).
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998), http://www.pfc.org.uk/node/346
- Changes in the birth register lie in the competence of the judiciary.
- In 1992 a French transsexual, B. took France to the European Commission of Human Rights (the case was subsequently referred to the European Court of Human Rights) over the refusal to
change the civil record. This time the Court ruled in favour of the transsexual and forced the French Supreme Court, the Court of Cassation, to overturn its earlier ruling, and in November 1992
the right of transsexuals to change civil status in France was recognised.
- Prior to the judgment in B v. France in 1992, the Birth Register was for historical purposes. It is now, however, a reflection of an individual’s current identity.
Trans Gender Europe (2005): steps in France
The complete birth certificate remain unchanged, the mention of the change (of first name and/or sex) is indicated in margin. However the complete birth certificate is used very seldom, in
the majority of the cases it is the (extract) birth certificate which is necessary.
Commission internationale de l’état civil, Transsexualism in Europe Volume 1, 14-15 (2000)
In France, whereas the lower courts were divided, the Court of Cassation initially adopted a firm stance under which it dismissed applications for the gender entry to be changed on the ground
that, even if transsexuals had lost the characteristics of their original gender, they still had not acquired those of the opposite sex. However, an application concerning one of its judgments
was referred to the European Court of Human Rights … In the Botella case, it was on the basis of Article 8 and the failure to respect the transsexual’s private life that the Strasbourg Court
found against France. It held that the applicant, who in everyday life often had to produce documents showing her original sex (national identity card, civil status documents, social security
cards, etc.), was thus placed in a situation which was not compatible with the respect due to her private life, and that consequently, even having regard or the State’s margin of appreciation,
the fair balance had to be struck between the general interest and the interests of the individual had not been attained. In the light of this judgment and, although it might have taken less
drastic measures, the Court of Cassation reversed its case-law in two judgments delivered by the full court on 11 December 1992 (see Bulletin des arrest de la Cour de Cassation, 1 February
1993, No. 13, p. 27). Henceforth, if transsexualism is medically certified in a legal report and if the appellant has undergone surgery to produce the physical appearance of the opposite sex, the
Court of Cassation gives permission for the gender recorded in the birth certificate to be amended, which means, in turn, that the forename may also be changed.
Benoît-Rohmer, Florence, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation, report on France (2008). Available at
http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_FR.pdf
64
Following this European verdict, the Plenary Assembly of the Court of Cassation amended its jurisprudence relative to transsexualism. It now allows the birth certificate to be amended after a
sex change in the name of privacy rights: “the principle of the right to privacy justifies that the civil status of the transsexual person indicate the sex he or she appears to be”(11 December
1992, JCP 1993, II, 21991).
UK Home Office, Report of the Interdepartmental Working Group on Transsexual People’s Rights, page 66, 2000
There are no legislative or regulatory provisions in France concerning a change of sex. The French approach is based entirely on case law which has been codified by two rulings delivered by
the Cour de Cassation (equivalent of the British High Court) on 11 December 1992. These provide that when an individual with a transsexual syndrome has undergone suitable medical
treatment, no longer possesses all of the characteristics of their original sex and has taken on the physical appearance and social behavior of the other sex, the individual’s civil status should
henceforth correspond to the sex of his/her appearance. This is in accordance with the principle of respect for private life.
Legal recognition of a change of gender depends upon medically verified evidence of a transsexual syndrome and treatment (hormone therapy and a surgical operation leading to an artificial
change of appearance of sexual attributes) modifying the physical appearance to the assumed sex.
Transsexual people may alter their civil status by amending their birth certificate on application to the county court where their birth was originally registered. Where such applications are
accepted the change of sex is noted in the margins of the original birth certificate. The legal decision to alter an individual’s sex, and eventually the change of name which this implies, are
recorded in the margin of the individual’s birth certificate. The standard wording is usually:
“By judgement of the [tribunal/court] at [place], this person will be henceforth designated as being of the [M/F] sex and his/her name will be [new name] instead of [former name].”
It is up to the individual concerned to request such an amendment, having provided a copy of the legal instrument confirming the change of sex.
Marriage - Yes
Without prejudice to the authority of the courts, a transsexual person may marry in their acquired gender. An official change of sex does not call into question previous sexual identity ie a
previous marriage is not retrospectively annulled upon a change of sex. However, the question of maintaining a married relationship also arises in such cases. Although divorce proceedings
only apply to married partners if they choose to separate, a valid marriage can only exist between two people of opposite sexes. A number of courts have granted annulments on this basis as
a consequence of sex changes.
MARRIAGE
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity, 2011
Like any person, a transsexual has the right to the respect of his or her family life, as protected by article 8 of the E.C.H.R. He or she may marry in his or her new sex, a right which has never
been prohibited in France since transgender persons have the right to change their name and gender on civil records. (http://fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematicstudy_FR.pdf)
European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 16 (2010)
65
Yes#: available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues)
16. GEORGIA – 1998
External Documents
1996
All Documents
1998
Marriage
1998
ALTERNATIVE CODING
No
Note: most of the information we have is from the Deputy Permanent Representative to the Council of Europe. Based on the information he provided, we concluded that only in 1998 did the
right to change documents become complete.
Alternative Coding: No legislation.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which the right to change documents is guaranteed through court decisions and administrative procedures.
Correspondences of August 12 and 13, 2010 with Mr. Mamuka Jgenti, Deputy Permanent Representative of Georgia to the Council of Europe:
“Georgian Law on Civil Acts Registration, namely article 106 stipulates that, "in the record sheets of the civil acts may be taken amendments if in regard with the sex change it is necessary to
change name, surname, or father's name" (1998). Thus sex change in identity documents is authorized for transgender persons.”
“Indeed, the right to change documents on these grounds only became possible since 1998. The pre-existing legislation did not reflect on the posibility to change the documents on the
grounds of changing the sex.”
Global Rights & Inclusive Foundation, Violations of Rights of Lesbian, Gay, Bisexual and Transgender Persons in GEORGIA (2007)
In Georgia, there exists no official regulations for gender reassignment. There are only two documents that provide for change of the name and ID – the Georgian National ID and the
certificate of residence [Article 11, law of Georgia on the Rules and Registration of Georgian Citizens and Foreign Residents on the Territory of Georgia, Issuance of Identification
Documentation and National Passport (Jun. 27, 1996)]. The law provides for a name change on five enumerated grounds, none of which include transgender people. No law exists to regulate
change if gender reassignment is needed. According to the reports, one transgender person appealed to get new documents after he underwent phalloplasty. The Court concluded that
although it is against natural law and morals, the court could allow the protection of transgender people. The Inclusive Foundation conducted interviews with key stakeholders, who agreed
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that once people undergo observation and are concluded to be “truly and irreversibly transsexual,” they can apply for new documents. However, gender reassignment is expensive and most
transgender people cannot afford it. The national healthcare system does not cover genital surgery.
17. GERMANY
External Documents
1980/1981
All Documents
1980/1981
Marriage
1980/1981
ALTERNATIVE CODING
1980/81
Note: The 1980 law introduced changes to documents. From the sources, it seems that as soon as all the change was carried out, it was possible to marry.
Alternative Coding: Legislation was passed in 1980/81.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country that has legislation guaranteeing the right to change documents.
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998)
- Legislation passed in 1980 (1500 cases in 1st decade).
- German legislation allows for two separate procedures to accommodate the needs of the pre-operative and the postoperative transsexual (known as minor and major solutions respectively).
The first section of the Transsexual Law (TSG) 1980 provides that a German citizen, or a homeless foreigner who is stateless, or a foreign refugee or asylum seeker who is resident in Germany,
can change their forenames to ones more appropriate to their gender role. The requirements are that they should be at least 25 years old and… it can be assumed as a great probability that
their feelings of belonging to another gender are not going to change
TSG 1980 First Section, Ss1 (ii)
- The transsexual brings the procedure to their Regional Court, and the interests of the public are represented through a state appointed legal representative. The transsexual must submit
independent reports from two experts in the field of transsexuality, which must confirm that:
according to scientific evidence the applicant is unlikely to change their feeling of belonging to another gender with a high degree of probability
TSG 1980 First Section, Ss 4.4
67
- Once an order to change the forenames has been made, the transsexual and their relatives are obliged to state only the new names, not the old, for official records and registers.
- The second section of the Act provides for the “establishment of belonging to a sex group”. Designed for the post-operative transsexual, this section allows the court to establish that the
person can now be considered as belonging to the other sex from that stated in their birth certificate.
TSG 1980, Second section, Ss 8.1 (ii-iv)
- The transsexual must state the forenames they are going to use, and they must produce expert reports to say that the criteria have been met. According to section 10, from the date of the
decision the transsexual is to be regarded as belonging to the other sex; this is final and any rights and duties which depend on sex are to be governed by their new sex.
- As far as the birth certificate is concerned, only government offices and the transsexual concerned may have access to the birth register. The transsexual may also be issued with a personal
status certificate.
- Therefore in the Federal Republic of Germany the rectification of the birth certificate and the modification of first names demands a legal procedure. A court can decide that a person should
belong to the other sex when a person has lived for three years as belonging to the sex the person feels he or she really belongs to: when the person is unmarried, of age, permanently sterile,
has already undergone one operation by which a clear resemblance with the other sex has been achieved. (available at: http://www.pfc.org.uk/node/346)
UK Home Office, Report of the Interdepartmental Working Group on Transsexual People, 2000
The Federal Republic introduced legislation in 1981 providing for the recognition of an acquired gender. A court can decide that a person should belong to the other sex where:
(i) a person has lived for 3 years as belonging to the sex the person feels he or she belong to;
(ii) the person is unmarried;
(iii) of age;
(iv) permanently sterile;
(v) has undergone operation by which clear resemblance to the other sex has been
achieved.
A note is made in the margin of the birth record and the civil status record is noted with details of the Courts decision. If a new birth certificate is issued following legal recognition, this will
show only the acquired gender. The former gender will have to be disclosed on certain occasions eg in court or to obtain an insurance policy.
68
Problems can arise for a transsexual person between taking the decision to change their first names and to undergo full reassignment surgery, and gaining a court decision on legal
recognition. In this interval the individual would continue to be of their birth gender for the purpose of public laws, notwithstanding the fact that their external appearance was now of the
opposite sex.
Marriage: Yes
Full legal recognition is achieved for all purposes including marriage. (available at http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/constitution/transsex/wgtrans.pdf)
Trans Gender Europe 2005: steps in Germany (website not available)
Anything can be changed, even in a way such that nobody is able to track down the fact you once had a different legal sex entry.
The Transsexuals Law regularizes the name-change and the change the sex-entry of the civil status in the corresponding official files including the birth certificate.
Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Germany (2008)
In order to take account of the special situation of transsexuals, the law of 10th September 1980 on the changing of given names and the determination of sexual identity in special cases
followed the seminal decision of the Federal Constitutional Court of 1978. According to the justices’ opinion, article 2 para. 1 of the Basic Law (general freedom of action) in conjunction with
article 1 para. 1 (human dignity) affords the right to correction of the entry of a transsexual’s male gender in the register of births if a medically determined, irreversible case of transsexualism
is at issue and if a sex-changing operation has been conducted. The Law on Transsexuals that took effect on 1st January 1981 offers those concerned with two solutions. In addition to a
process in which a transsexual’s given name can be changed without the person first having to undergo a surgical procedure (the so-called small solution), the law provides the possibility of
determining the gender and changing the given name after a sex-changing operation (the socalled big solution). (p. 28) For the determination of whether a person belongs to the other
gender/sex (articles 8-12 of the Law on Transsexuals), the law also demands that the transsexuals are unmarried and have undergone a sex-change operation making them incapable of
reproduction (article 8 para. 1 of the Law on Transsexuals). In this judicial process the competent magistrates’ court must also, in accordance with article 9 para. 3 of the Law on Transsexuals,
obtain two expert opinions before making its decision. (p. 30) (Available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_DE.pdf)
For recent developments, see spreadsheet.
MARRIAGE
Expert:
The Law on Transsexuals of 10 September 1980 (Transsexuellengesetz) does not limit a person’s right to marry a partner of the other gender or to register a partnership with a same-sex
partner following a sex change. Pursuant to the Act amending the Transsexuals Law of 17 July 2009 (Transsexuellengesetz-Änderungsgesetz), it is also possible for a married trans sexual to
remain married to his/her spouse following a sex change.
European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 16 (2010)
Yes#: (available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues)
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Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen, available at http://bundesrecht.juris.de/tsg/index.html (google translation8:
§10: effects of the decision: 1) The legal force of the Decision, that the applicant is regarded as being of the opposite sex, its dependent on gender rights and obligations governed by the new
generation to the extent otherwise provided by law. (2) § 5 shall apply mutatis mutandis9.)
18. GREECE
External Documents
Insufficient (at least since
1998)
All Documents
Insufficient (at least
since 1998)
Marriage
Insufficient (at least
since 1998)
ALTERNATIVE CODING
Insufficient
Notes:
1) In 1989 it was possible to change documents (although it is not clear since when), but the person legally still retained the former sex.
2) In 2000, there was still uncertainty regarding the consequences of changes in name and identity papers.
Alternative Coding: Though the Commissioner has classified Greece as a country that has legislation, we have no suggestion of a date.
8
§ 10 Wirkungen der Entscheidung: 1) Von der Rechtskraft der Entscheidung an, daß der Antragsteller als dem anderen Geschlecht zugehörig anzusehen ist, richten sich seine vom Geschlecht abhängigen Rechte und Pflichten nach dem neuen
Geschlecht, soweit durch Gesetz nichts anderes bestimmt ist. (2) § 5 gilt sinngemäß.
9
§5 talks of “revelation ban”, probably restricting the release of the information: §5 (1) If the decision by which the name of the applicant to be changed, legally, they may at the time of decision-run first name without the consent of the applicant
will not be disclosed or pried, unless that require special reasons of public interest or that a legal interest will be made credible. (2) The former spouse, parents, grandparents, and the descendants of the applicant shall only be obliged to disclose
the new name if necessary for the conduct of public books and register. This does not apply to children adopted by the applicant after the legal validity of the decision under § 1. (3) The birth entry of a biological child of the applicant or a child that
the applicant has accepted prior to the legal validity of the decision according to § 1, are the first names of the applicant indicate that before the decision has been governed by § 1. (in german: (1) Ist die Entscheidung, durch welche die Vornamen
des Antragstellers geändert werden, rechtskräftig, so dürfen die zur Zeit der Entscheidung geführten Vornamen ohne Zustimmung des Antragstellers nicht offenbart oder ausgeforscht werden, es sei denn, daß besondere Gründe des öffentlichen
Interesses dies erfordern oder ein rechtliches Interesse glaubhaft gemacht wird. (2) Der frühere Ehegatte, die Eltern, die Großeltern und die Abkömmlinge des Antragstellers sind nur dann verpflichtet, die neuen Vornamen anzugeben, wenn dies
für die Führung öffentlicher Bücher und Register erforderlich ist. (3) In dem Geburtseintrag eines leiblichen Kindes des Antragstellers oder eines Kindes, das der Antragsteller vor der Rechtskraft der Entscheidung nach § 1 angenommen hat, sind
bei dem Antragsteller die Vornamen anzugeben, die vor der Rechtskraft der Entscheidung nach § 1 maßgebend waren.
70
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity, 2011
Country that has legislation in place guaranteeing the right to change documents.
Delvaux, Legal Consequences of Sex Reassignment in Comparative Law
[Discusses the possibility of surgery and change of documents in cases of “certain physical deformities which created a confusion as to whether he was a male or female”] “This is a case of
intersexualism and it seems that the Greek courts have not yet had to decide a case concerning transsexualism.” (1995)
Liberty Survey, 1998:
- A report to the European Parliament 1989 maintains on the one hand that “transsexuals can have their name and identity papers changed” and that “the original birth record can be
amended accordingly”, while on the other hand “transsexuals in Greece retain their legal sex as determined at birth.”
- Therefore in Greece, the legislature permits gender reassignment but the female-to-male transsexual will, legally, be recognised as female.
- In Greece, transsexuals can change their name and identity papers. An annotation is made to the original birth certificate. The legal consequences of this annotation are not clear.
- Recently the Ministry of Justice has for the first time said that a judicial approach is taken which enables transsexual people to change their documentation and have full recognition of their
new civil status. As such, they would insist on transsexual men of the correct age to fulfill their military duties under the conscription regulations
UK Home Office, 2000:
There is no law in Greece covering a change of sex. However, transsexual people can change their name and identity papers (an annotation is made in the original birth certificate).
The legal consequences of this are not clear - there are no legal provisions relating to marriage or other areas of life such as birth certificates, rights over children, criminal and employment
law.
FRA Individual report on Greece
Allowed in 2007. (available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_EL.pdf)
ILGA-Europe and TransGender Europe, Trangender Euro Study, 2008, at page 22
Allowed in 2008.
European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 18 (2010)
No statute. However, post-operative transsexuals are able to marry someone of the opposite sex. (available at http://ilgaeurope.org/home/issues/transgender/external_resources_on_transgender_issues)
MARRIAGE
Hatzopoulos, Vassilis, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Greece (2007)
71
Along with change in documents: As soon as the new gender is recognized and name-change is carried out, the individual is allowed to marry someone of the opposite gender. This report
does not mention when the changes started to be legally recognized. The author says no statistics on these marriages are available because they are considered to be “normal” marriages.
(available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_EL.pdf).
Liberty, Annex 6 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
Liberty says the right to marry exists at least since 1998 (available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-6.pdf)
European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 16 (2010)
Yes#: available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues
19. HUNGARY
External Documents
1982
All Documents
1982
Marriage
1982
ALTERNATIVE CODING
No
Note:
1) A 1982 law introduced the possibility of changing the birth certificate, which could then be used to change other documents.
2) There is no information on marriage.
Alternative Coding: No legislation.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country that guarantees the right through courts or administrative procedures.
Updated FRA Report, 2010
Name and gender change in documents: No explicit rules in place. Requirements descend from praxis, but unclear what is necessary in order to obtain a medical opinion. After 1 January 2011
a marriage can be transformed into a registered partnership. (see table on p. 17)
72
Liberty Survey, 1998
- The law in Hungary is currently undergoing rapid changes, and according to the Ministry of Justice, legislation about transsexuals is being considered. The legal mood in Hungary appears to
be very much in favour of following other European legislation where a consensus on issues like sexuality, discrimination and gender identity has become clear over the past decade. To this
extent, Hungary has now legislated to allow homosexual men and women to live in partnerships with each other. It has also recently decriminalised much legislation which was antihomosexual.
- The Hungarian Consul in London said that “attitudes are becoming even more liberal in Hungary now, and we expect that transsexuals will be given new rights, as homosexuals recently have,
very soon…”
Trans Gender Europe, 2005: steps in Hungary (website not available)
You get all your new papers using your new birth certificate, domestic (or foreign for dual citizens). A new regulation or law might be made by the legislature. The divorce requirement might
be eliminated, but it might require some time. Our organization is very new, but we are determined to cooperate with the TGEU.
Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Hungary (2008)
The decree governing the rules concerning birth certificates and name changing [Hungary/1982. évi 72. tvr./(14.08.1982). Hereinafter referred to in the body text as the Birth Certificate
Decree or BCD)] refers to changing sexes. The birth certificate contains, amongst other information, the child’s sex. According to BCD the registrar of birth certificates amends or corrects a
closed entry in the birth certificate if • it does not corresponds to the relevant rules, • it contains false or defective data or • name changing was requested. Furthermore, BCD prescribes that
if the sex of the child is altered the relevant birth certificate entry has to be corrected. As regards the procedural rules of registering sex changing the Birth Certificate Decree does not
prescribes specific rules. The act regulating the procedural rules of administrative authority proceedings states however that this piece of legislation is applicable in authority registry
proceedings. Since the birth certificate procedure is such a proceeding the general rules of administrative proceedings can be applied in cases of sex changes. (p. 37-38) (available at
http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_HU.pdf)
Trans Gender Europe (website not available):
You go to see two designated mental health professionals who evaluate you. They give a written opinion to the Ministry of Health. They communicate with the Ministry of the Interior who
send you to the District Birth Registry Office. There you make a statement as to your choice of a new surname. They issue you a new Birth Certificate giving your new name and new sex. You
get all your new papers using your new Birth Certificate.
MARRIAGE
No law: European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 16 (2010), available at http://ilgaeurope.org/home/issues/transgender/external_resources_on_transgender_issues
20. ICELAND
External Documents
1996
All Documents
1996
Marriage
1996
73
ALTERNATIVE CODING
1996
Note: We do not have a date.
Alternative Coding: No legislation.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe
Listed as a country in which the right is guaranteed through court decisions or administrative procedures.
Individual Report on Iceland, p. 29:
With regard to registration of name-change, the current legislation (Act 45/1996 on names, lög um mannanöfn) does not contain any provisions relating to name change of transgender
people.
According to the above Opinion of the Parliamentary Ombudsman, it has been an established administrative practice that a name change could only be effected when a gender reassignment
surgery had taken place and upon a notification to that effect from the Medical Director of Health (Landlæknir). As names are, according to the legislation, gender specific, name change could
only be registered at this point.
Amended registration of gender is linked to name change. In practice, registration of a new gender is processed by the National Registry (Þjóðskrá), if requested, by a change of birth
certificate; a new identification number may be obtained at the same time, even if identification numbers are gender neutral.
(http://www.coe.int/t/Commissioner/Source/LGBT/IcelandLegal_E.pdf)
Liberty Survey (1998):
- There is no specific law on the rights of transsexuals in Iceland. According to the Directorate General of Health of Iceland gender reassignment surgery has only been done once in the
country; most Icelandic people are assumed to go to Sweden. However, there are more cases in the pipeline. A committee for the said Directorate is currently drafting legislation on the issue
which is likely to 0
Trans Gender Europe (2005): steps in Iceland
Everything in Iceland is run off the National registry, down to libraries and video rental kiosks. There is no way to change or alter gender or sex specific information, unless it is changed in the
National Registry; by getting full legal recognition in the acquired gender. Rumour has it, that Birth certificates can not be changed, only a comment is added noting the new name and sex.
After the SRS, the documents are sent to the National Registry. After that, the registration of sex is changed and that in turn, allows for the change of name and ID documents.
Liberty, Annex 3 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
The Liberty survey says the right existed in 2002. (available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-2.pdf)
74
MARRIAGE
Liberty, Annex 6 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
At least since 2002: (available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-6.pdf)
Council of Europe, European Committee on Legal Co-Operation (CDCJ), Comparative Study on Partnership Regulation in the Council of Europe's Member States with a View to Identifying
Possible Measures to Avoid Discrimination on Grounds of Sexual Orientation or Gender Identity (prepared by the Danish Institute for Human Rights (DIHR), 2009
Yes#: Transsexual persons enjoy the right to marry a person of the opposite sex of the transsexual person's acquired gender.
21. IRELAND
External Documents
1998
All Documents
No
Marriage
No
ALTERNATIVE CODING
No
Notes: The right currently does not exist. However, the Supreme Court ruled the situation to be in violation of the ECHR, and the government will soon pass legislation to comply with the
decision.
Alternative Coding: Because Ireland is still working to implement the law in the country, I coded this as no.
Trans Equality Network Ireland, May 6, 2011
News Release: Friday, 6 May 2011
TENI calls on Government to implement Gender Recognition Legislation after year-long delay
Transgender Equality Network Ireland (TENI) has today (6 May) called on the Government to introduce inclusive legislation that legally recognises the preferred gender of transgender and
intersex people in Ireland.
TENI Board member Tanya Ní Mhuirthile said: “Today marks the anniversary of the first meeting of the Gender Recognition Advisory Group (GRAG). This group was established to advise on
the legislation required to provide legal recognition for transgender people, and to deliver a report to the Minister of Social Protection.
75
“One year later and there is still no report. Its absence has not gone unnoticed, with TDs posing questions on this issue in January, March and April.”
Dr Ní Mhuirthile continued: “It has been said that the Gender Recognition Advisory Group’s (GRAG) report is imminent. We look forward to seeing the recommendations in the report and we
encourage Minister Burton to release them publicly”.
The necessity of introducing such recognition was first brought to the public’s attention by Dr Lydia Foy when she brought a case to have a birth certificate issued reflecting her preferred
name and gender. In 2007 the High Court ruled in Foy’s favour and found that Irish law was in contravention of the European Convention of Human Rights, concluding that Ireland was
"disconnected from mainstream thinking" on this issue. Currently, Ireland shares (with Lithuania) the distinction of being one of only two EU countries to provide no legal recognition for
transgender people.
Transgender people in Ireland can face debilitating discrimination. Legal recognition would provide the foundation from which basic human rights and protections would be afforded.
“TENI was pleased to see that Gender Recognition Legislation is promised in the Programme for Government,” said Dr Ní Mhuirthile.
“There is an urgent need for the introduction of a proper legislative framework for gender recognition. The first step is the publication of the recommendations of the GRAG. We urge Minister
Burton to move forward with drafting and enacting this legislation as quickly as possible,” Dr Ní Mhuirthile added.
TENI was established in 2005 and represents Ireland’s transgender community. TENI provides support services for transgender people across the country. At present TENI facilitates six
support groups across the country in Cavan, Cork, Dublin, Galway, Limerick and Waterford. Over 500 people accessed TENI’s support services in 2010.
Greenwood Encyclopedia (2010)
The most visible challenge to Ireland’s lack of social and legal recognition of transsexual people is the case of Lydia Foey, who tried to get a new birth certificate for 10 years reflecting her
change of gender. In 2007, the High Court of Ireland ruled in her favor, arguing that Ireland’s refusal to offer her a new birth certificate violated the ECHR. The government of Ireland, however,
failed to act on the court’s decision and appealed back to the supreme court in 2008.
Excerpt from the Lydia Foy Case (vLex):
That disability, which is now known as Gender Dysphoria or Gender Identity Disorder, meant that although psychologically female her biological made up of chromosomes, gonads and
genitalia, both internal and external, was that of a male person. Pursuant to such a finding if granted, she then sought an order, in effect correcting the original entry in the Register of Births,
to record in Column 4, under the heading "Sex", the letter "F" for "female" instead of "M" for "male", and in Column 3 under the heading "Name", "Lydia Annice" instead of "Donal Mark". If
however such a finding was not obtainable, she alleged that in the alternative the existing legal regime infringed her constitutional rights to privacy, dignity and equality as well as her right to
marry a biological male. In support of her claim she relied, inter alia, upon case law from the European Court of Human Rights. (Ireland/High Court/2007/IEHC 470 (19 October 2007) To read
more: http://ie.vlex.com/vid/foy-v-ard-chlaraitheoir-ors-68725558#ixzz17prCk0uy)
Updated FRA Report, 2010
Name change possible by Deed Poll and under Passports Act 2008 (see table on p. 17)
76
The 2008 report noted the decision in the Lydia Foy case of the High Court of Ireland, which held that the lack of legal recognition of gender reassignment was incompatible with the ECHR.
While the government initiated an appeal before the Supreme Court, this was withdrawn in June 2010, thus accepting the High Court ruling. Proposals for new legislation in compliance with
the ECHR are now expected. (p. 15)
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998)
- Birth certificates / registration of sex
The situation with regards registration of birth is virtually identical to that of the UK. The Registrar of Births is charged with the responsibility under the Registration of Births (Ireland) Act 1863
-1880. The official criteria for determining sex at the registration of birth is genital. This is also the position for identification of sex for legal purposes (as noted in the regulations made under
the 1880 Act).
- According to the Registrar of Births, a birth certificate is a record of a particular event which occurred on a particular date. It is not a personal record and is therefore seen as an historic
document.
- Gender reassignment is not recognised by the law as a change of sex.
Lydia Foy v. AG (J.R. 131 1997) - hearing pending
- Section 27 of 1863 Act provides that any error of fact or substance with regards registration may be corrected. However, this has not been deemed to be relevant to transsexuals. However, it
is possible to have other documents to correspond to the reassigned sex. For example, Ms Foy in the above case has been issued with an Irish passport which confirms her sex as female.
- In Ireland you will need your original birth certificate for the purposes of insurance and also to register in certain educational institutions.
- Family and home rights
If someone undergoes gender reassignment their former marriage will remain valid unless there are nullity proceedings. Transsexuals have no right of marriage once they have had Gender
Reassignment Surgery and they are likely to face great difficulties with regards access and custody of children. (available at http://www.pfc.org.uk/node/346)
UK Home Office, Report of the Interdepartmental Working Group on Transsexual People, 2000
A change of gender is not recognised in Irish law. However, the Irish Passport Office will issue a transsexual Irish national (who has undergone a full course of medical treatment including full
and irreversible gender reassignment) with a full passport reflecting the person’s new name and acquired gender.
Marriage: No
However, there is currently a court case pending from a transsexual person who has applied to marry in their acquired gender. (available at
http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/constitution/transsex/wgtrans.pdf)
Trans Gender Europe (2005): steps in Ireland
Everything can be changed, except the birth certificate. Start with passport. Need relevant documentation from medical profession regarding transition. Passport can be changed first to 'T' &
then to 'M or F' once surgery completed.
Full legal recognition cannot be achieved as Birth Certificate cannot at present be changed.
Ireland: Government Withdraws Transgender Appeal, in ILGA Euroletter No. 178, June 2010
77
The Government must now introduce legislation recognising the new gender of transgender persons and allowing them to obtain new birth certificates or it will face condemnation from the
European Court of Human Rights.
MARRIAGE
European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 16 (2010)
No (available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues)
22. ITALY
External Documents
1982
All Documents
1982
Marriage
1982
ALTERNATIVE CODING
1982
Notes:
1) A 1982 law introduced the right to change documents.
2) From the sources it seems that it is possible to marry as soon as the changes are carried out. However, it is not clear whether this has been the case since 1982.
Alternative Coding: Legislation was passed in 1982.
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998)
- Special legislation was passed in 1982. At the time, Italy had a case brought before the European Commission of Human Rights, and to avoid losing face through defeat hastily passed
legislation on transsexuality as Germany had been forced to do two years earlier.
- According to Italian law (Law of 14 April 1982, No 164) a person who is at least eighteen can ask for his/her civil status to be amended when modifications in his/her sexual characteristics
have occurred. The law does not specify whether such modification must be the consequence of sexual reassignment surgery, of hormonal medical treatment or of natural evolution. It does
not impose specific conditions such as a trial period, the irreversibility of the choice or the impossibility of procreating. The jurisprudence has clarified that, in accordance with the knowledge
of medical science, the sex of a person is the result of various biological and psychological factors, which may happen to be in contrast with one another, and that a transsexual can be defined
as a person who is not at ease with his/her anatomical sex and regularly behaves as someone of the opposite sex. Both from the medical and from the legal point of view, it is possible to
recognise in such a person a different sex when the psychological attitude is confirmed by the acceptance of surgical treatment in order to modify, as far as possible, external genital organs.
So the undergoing of sexual reassignment surgery is considered an indispensable condition.
78
The task of deciding whether these conditions are satisfied is the responsibility of ordinary magistrates. The procedure is very simple. Notice must be given to any partner and to any children.
The intervention of the public prosecutor is compulsory. The operation must be authorised by the Court, in order to ascertain the seriousness of the intention and the existence of the
conditions (psychological and physical). An expert can be called on to give an opinion on “psycho-sexual conditions of the person concerned” if necessary.
- The decision of the court is given by means of a judgment which orders the relevant authorities to rectify the indication of the sex of the person concerned in the register of births. The
change of forename is a consequence of the change of sex. Another important consequence is the annulment of the marriage, while there is no change in the relationship with the children.
- The previous identity must not be mentioned in civil status certificates. In the case of a new marriage, the fact that the partner did not know of the sexual change can be reason for
annulment.
- The law (Article 6) provides a simpler procedure for people who have already undergone an operation and ask for civil status amendment within one year of its entry into force.
- In this case, when the decision of the Court is positive, Article 7 excludes penal responsibility related to surgical treatment (for personal injuries, due to the fact that according to the Italian
law, no agreement on any intervention is permitted on one’s body where this might cause a permanent reduction in physical integrity).
- An Italian petition No. 16/84 to the European Parliament on 18th April, 1984 was adopted in 1989 as a resolution “on - discrimination against transsexuals” [doc.A316/89,0.J.9.10.89, No
C.256/33-35@34]
- The Parliamentary Assembly of the Council of Europe further adopted as Recommendation 1117 of 29.9.1989 “on the condition of transsexuals” asking the Committee of Ministers to invite
member states to “introduce legislation”.
- In Italy, the law stipulates that an operation has to be authorised by a court decision as does the amendment of the birth certificate. In the latter case the court orders the register of
population to rectify the birth certificate.
- Transsexuals in Italy are currently campaigning to persuade the Italian government that rules regarding gender reassignment surgery should be relaxed, so that people can have their
documentation amended at a much earlier stage. (available at http://www.pfc.org.uk/node/346)
UK Home Office, Report of the Interdepartmental Working Group on Transsexual People, 2000
A change of sex is recognised in Italy after due legal process. Legislation was introduced in 1982 stipulating an operation had to be authorised by a court, which also authorises the register of
population to rectify the birth certificate. The law does not distinguish between hormonal treatment or surgery - it considers the sexual-psychological characteristics to be most significant, and
provides for the court to authorise the medical-surgical treatment which will bring the individual anatomically into line with these characteristics. The amendment of the individual’s civil
status is subordinated to subsequent verification that the treatment has been carried out. The introduction of authorisation by the courts for sex-change treatment was intended to legalise
the medical treatment required (such treatment was previously a criminal offence). The law does not clarify the nature or extent of the reassignment required for recognition of the acquired
gender - in practice it is considered sufficient for the individual’s physical appearance to correspond overall with that of the new sex.
Once the birth record has been altered as a result of the court’s authorisation of the change of sexual status, all civil status certificates will bear the new name and sex, including the birth
certificate. The Constitutional Court has set out the rationale behind the law as follows: “the legislator, in recognising the concept of (a new) sexual identity, must take into account not only
the external sexual characteristics as ascertained at birth, or as they have since developed either naturally or with the help of appropriate medical-surgical treatment, but also elements of a
psychological and social nature. Since transsexual people are not making a free choice when opting for gender reassignment, but are forced to do so by their very nature, the legislator’s role is
to guarantee that the case is examined properly, to ensure that appropriate treatment is provided and the individual’s records changed accordingly. Another purpose of the law, which is
inspired by the values of the freedom and dignity of the individual, is to overcome the isolation, hostility and humiliation to which these “diverse” individuals are often subjected”.
Marriage - Yes
79
Full legal recognition is given for all purposes, including marriage. (available at http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/constitution/transsex/wgtrans.pdf)
Trans Gender Europe, 2005: steps in Italy
After SRS (or Mastectomy and Hysterectomy for FtM) you must quest in a court for having the change. It is important to say that Italian law doesn't specify a lot so the application of it is based
on jurisprudence that is like I've told before. The petitioner must take the sentence to the birth office and ask for the recognition. The birth office issue a certificate in which is stated that the
"new" person was the "old" person and with that certificate the petitioner can ask the change of national insurance, driving licence, electoral roll, water, gas, electric contract and so on. All
charges are payed by the applicant.
Change documents: Only a certificate of degree or other study title can be obtained. Hardly (but really hardly) another original may re-issued. The change is not retroactive, therefore only
certificates may be obtained. Every document signed before continue to maintain the old name, sex and so on.
The change of name without SRS is explicitly forbidden (Interior memorandum: miacel 9) SRS is permitted only in judicial way after a report that include psychotherapy, real life test, hormonal
treatment, chromosome exam and possibly other. After SRS another sentence is needed to change sex and name There is no personal data protection. Possibly there is the opposite The
general perception both at social and political level is "transsexualism exists, but it is better to ignore it".
There is no difference in Italy between changing "sex" and "name" on certificates. You can have new certificates only after "changing sex" procedures. Files that can not be changed: integral
birth certificate (that can be asked only by public authority)
Already mentioned is law number 164/1982. It provides to say how transsexual people can change sex (doesn't exist anything about transgenderism cases). It regularize the change of sex. No
criteria are stated. It is really vague. See the translation at: www.transeuropean.org/ita/ita.html.
Cartabia, Marta, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Italy (2008)
Legge [Law] 164/1982 of 14.04.1982, Norme in materia di rettificazione di attribuzione di sesso [Rules concerning rectification of sexual attribution], provides that correction of the record of a
person’s sex held by in the Registrar's Office can be obtained by producing a final judicial decision which assigns that person a different sex ‘in consequence of the changing of sexual
characteristics’. The law states that in such proceedings the judge ‘may ask for a medical opinion regarding the psycho-physical condition of the person’. The law also provides that ‘when an
operation to adapt the sexual characteristics is necessary, the judge authorises it with a decision’: afterwards the judge, ‘having checked that the authorised operation has been done, orders
the correction of the person’s sex in the records of Registrar’s office’. In brief, as far as the sex reassignation proceedings are concerned, in Italy a transsexual person must make two requests
to the judge: first, he/she must be authorised to have the required surgery (making an exception to Article 5 of the Civil Code, which prohibits any act of disposition of a person’s own body
that can bring about a permanent reduction of physical wellbeing). This judicial authorisation allows the person to obtain this surgery in public hospitals totally free of charge. Secondly, he/she
can ask for a judicial order which gives consent to change the details of their sex and name in the records of the Ufficio dello Stato civile [Registrar of Civil Status]. (p. 19) (available at Available
at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_IT.pdf)
ILGA World Wrap Up Survey, 2006
1982
MARRIAGE
80
Liberty, Annex 6 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
At least since 1998: available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-6.pdf
Council of Europe, European Committee on Legal Co-Operation (CDCJ), Comparative Study on Partnership Regulation in the Council of Europe's Member States with a View to Identifying
Possible Measures to Avoid Discrimination on Grounds of Sexual Orientation or Gender Identity (prepared by the Danish Institute for Human Rights (DIHR), 2009); European Parliament
Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 16 (2010)
Yes#: Transsexual persons enjoy the right to marry a person of the opposite sex of the transsexual person's acquired gender. (available at http://ilgaeurope.org/home/issues/transgender/external_resources_on_transgender_issues)
23. LATVIA
External Documents
2009
All Documents
2009
Marriage
2009
ALTERNATIVE CODING
2009
Note: Despite having a law on recognizing transsexuals’ gender identity, the Latvian legal system lacked administrative regulations on how to carry out the change in the registry. Such
legislation only came in 2009.
The same source mentions the existence of a legal provision that can be used by transsexuals and the uncertainty of the procedure. The report says that such an approach has resulted in
different outcomes in similar cases. The Final FRA Report also mentioned the lack of legal certainty in Latvia.
Alternative Coding: The right was fully guaranteed only in 2009, when implementing legislation was passed.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that has legislation recognizing the right to change documents.
ILGA-Europe and Mozaika, The Status of Lesbian, Gay, Bisexual and Transgender Rights – submission to the United Nations Human Rights Council for its Universal Periodic Review of Latvia
(11th session)
There is also no provision in Latvian legislation which could indicate whether discrimination of transgender people shall be dealt with as discrimination on the grounds of sexual orientation or
as discrimination on the grounds of gender. However, following a recent judgement of the Department of Administrative Cases of the Senate of the Supreme Court in a case of sex change of a
person in the birth register, it can be deduced that such discrimination will be more likely understood as discrimination on the grounds of gender.
81
The only Latvian law provision which indicates the possibility to change gender in a legal sense is Article 32 of the Civil Status Documents Law of 2005 on modifying entries in the birth
register. However, there is no clear and explicit legal regulation on the order for modifying entries in the birth register in case of change of gender. There is a lack of criteria for establishing
that change of gender has taken place in a legal sense, and it is not defined which authority shall take a decision to change a person’s gender in the birth register and on which grounds. Also,
the procedure for applying to change the legal gender is not determined, and it is not clear what kind of documentation should be presented as a proof for change of person’s gender.
(available at http://ilga-europe.org/home/guide/country_by_country/latvia/Submission-on-LGBT-Rights-11th-session-of-the-universal-Periodical-Review)
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998)
- According to the Latvian Embassy in London it is legal for Latvians to have gender reassignment surgery, and the government will accordingly reissue all documents (including birth
certificates) in the reassigned sex. Latvian transsexuals will also be allowed to marry after surgery. (available at http://www.pfc.org.uk/node/346)
Updated FRA Report
Summary: Change of name is possible after gender reassignment. (see table on p. 18)
Access to Gender Reassignment Surgery: [In Latvia] a change in legislation followed a judgment of the Supreme Court Senate Administrative Case Department of 14 January 2008 concerning
the refusal of the civil registry office to change the entry on a person’s birth register after the change of gender. It was found that a lacuna existed in the law which was silent on the criteria
to be followed to establish whether gender reassignment had taken place. Subsequently, on 25 September 2008 the Administrative Regional Court ordered the Registry Office to issue a
written apology to the claimant for having refused to enter the changes on the Birth Register and for having forwarded sensitive data to the Ministry of Health; however, a claim for
financial compensation for moral damages was refused. On 18 August 2009 the Cabinet of Ministers approved amendments to the laws on Sexual and Reproductive Health and Civil Status
Documents aimed at filling the lacuna in the legislation. The Sexual and Reproductive Health Law has now been supplemented by a separate Chapter VII “On Gender Reassignment”,
designating a competent authority to approve gender reassignment following a medical expert opinion
(…)
Changing gender in official documents: In Latvia, after the Sexual and Reproductive Health Law was amended in order to authorise gender reassignment, amendments were also proposed to
the Civil Status Document Law allowing for the rectifi cation of the recorded sex in the birth registry, but at the time of writing these proposals had not attracted the required majority in
Parliament and therefore have not thus far been adopted.
Changing name: In Latvia, on 8 April 2009 the Parliament adopted the Law on the Change of a Name, Surname and Ethnicity Entry, which now explicitly provides that the change of name and
surname is permitted following gender reassignment.
Puce, Ilvija, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Latvia (2008)
The only Latvian law provision which indicates the possibility to change gender in a legal sense is Article 32 of the Civil Status Documents Law of 2005 which provides: ‘(1) An entry of the Birth
Register shall be supplemented if the surname of a child is changed, if one of the parents changes his or her surname, given name, entry of ethnicity or citizenship (nationality), personal
identity number, as well as if the sex of the child is changed, if the child is adopted, if the entry regarding the mother or the father of the child is annulled by a court judgment, if a court has
revoked an adoption, if the parents of a foundling have become known. (2) An entry of the Birth Register shall be supplemented on the basis of the relevant submission, court judgment or
82
administrative act.’ Previously the same issue was similarly regulated by Article 33 of the Law on Civil Status Documents [1993] and Instruction approved by Minister of Justice “On Civil
Registration Records in Republic of Latvia” which provided that an entry of the Civil Register record shall be supplemented by amending or correcting on the basis of a decision of the Registry
Office, relevant submission, court judgment or administrative act, and specified that administrative act shall be the basis of amending the Birth Register if it is necessary to amend it with a
new form of name and surname, corresponding to the gender due to the change of gender. However, there is no clear and explicit legal regulation on the order for supplementing the Birth
Register in case of change of gender. There is a lack of criteria for establishing that change of gender has taken place in a legal sense, and it is not defined which authority and on which
grounds shall take decision to change a person’s gender in the Birth register. Also, the procedure for applying to change the gender is not set, and it is not clear what kind of documentation
shall be presented as proof for change of person’s gender. Lack of legal certainty leads to the situation where the Registry Office has developed practice not to take decision on change of
entry on gender in the Birth Register itself, but to ask the Ministry of Health to issue its conclusion with regard to any particular case. Such an approach has resulted in different outcomes in
similar cases depending on change of opinion within Veselības ministrija [Ministry of Health], thus leading to violation of the principle of confidence in legality of actions, and possible violation
of persons private life and obligation to protect sensitive data, as officials at the Ministry of Health are acquainted with sensitive information regarding a person without legal ground or
consent of the person concerned. (p. 37-38) (Available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_LV.pdf)
De Schutter, Olivier, Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States – Part I – The Legal Situation (2008)
A similar lack of legal certainty exists in Latvia, resulting in a situation where the Registry Office (in charge of maintaining the Birth Register) refuses to take the decision on change of entry on
gender in the Birth Register itself, but instead asks the Ministry of Health to issue its conclusion with regard to any particular case, with the risks of arbitrariness and lack of uniformity this
entails – a situation condemned by the administrative courts, which recently ordered the Registry Office to amend the Birth Register in cases of gender reassignment, without invoking the lack
of a clear legal mandate to do so as a pretext for refusing to do so. (available at http://www.equineteurope.org/fra_hdgso_part1_en.pdf)
MARRIAGE
Liberty, Annex 6 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
At least since 1998: (available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-6.pdf)
European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 16 (2010)
Yes#: (available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues)
24. LIECHTENSTEIN
External Documents
No
All Documents
No
Marriage
No
ALTERNATIVE CODING
No
83
Note: We need more information.
Alternative Coding: No legislation.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Liechtenstein is cited as a country for which the Commissioner found no evidence of the right. (http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 85)
Liberty Survey (1998):
- The Lithuanian Consul was unsure of the situation of the law as it deals with transsexuals in Lithuania. However, it was suggested that their approach would be similar to that of Estonia.
25. LITHUANIA
External Documents
No
All Documents
No
Marriage
No
ALTERNATIVE CODING
No
Note: Although the legal situation is the country has been changing, the Updated FRA Report says the right to change documents is still not recognized.
Alternative Coding: No legislation.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which the right is guaranteed through court decisions or administrative procedures.
Updated FRA Report, 2010
Summary of change of name or sex in official documents: Legal vacuum due to lack of implementing legislation, courts decide on an ad hoc basis.
Case of L v. Lithuania, 2007:
The Court describes the legal situation in Lithuania:
84
“25. There were no provisions pertaining to the question of transsexuals in Lithuanian law until the adoption of the new Civil Code on 18 July 2000. The Civil Code entered into force on 1 July
2001. Article 2.27 § 1 (which only entered into force on 1 July 2003) provides that an unmarried adult has the right to gender-reassignment surgery (pakeisti lytį), if this is medically possible. A
request by the person concerned must be made in writing. The second paragraph of this provision states that the conditions and procedure for gender-reassignment surgery are established
by law.
26. On 27 December 2000 the Government adopted a decree specifying the measures needed for the implementation of the new Civil Code. The preparation of a Gender-Reassignment Bill
was mentioned in it.
27. Rule 109.2 of the Civil Registration Rules, approved by an order of the Minister of Justice on 29 June 2001 (in force from 12 July 2001), permits a change in civil-status documents if there is
a need to change a person's gender, forename and surname, following gender reassignment.
28. Under the Residents' Register Act and other relevant domestic laws, every Lithuanian resident has a numerical “personal code” (asmens kodas), which denotes certain basic items of
information, including his or her gender. Section 8(2) of the Residents' Register Act provides that the first number of the personal code denotes the person's gender. A personal code starting
with the number 3 denotes that the person is male, whereas a code starting with number 4 means that the person is female.
29. Section 5 of the Passport Act 2003 provides that a citizen's passport must be changed if the citizen changes his or her forename, surname, gender or personal code.
30. The Gender-Reassignment Bill was prepared by a working group of the Ministry of Health in early 2003. On 3 June 2003 the Government approved the Bill, sending it for consideration to
the Seimas (Parliament). In an explanatory note to Parliament dated 4 June 2003, the Minister for Health indicated, inter alia, that, at present, no legal instrument regulated the conditions and
procedure for gender reassignment. The Bill was initially scheduled for a plenary session of Parliament on 12 June 2003, but it was not examined that day. It was rescheduled for 17 June 2003,
but was then omitted from Parliament's agenda. On the same date the Speaker of Parliament circulated an official memorandum on the Bill, stating inter alia:
“The Speaker of the Seimas ... strongly denounces gender-reassignment surgery and the further consideration of a bill on the subject at a parliamentary hearing.
[At a time] when the demographic situation in Lithuania is becoming threatened, the Seimas should not exaggerate matters in considering such a controversial law, which may be taken by
society as an insult to the far more important problems facing the health-care system.”
31. The order of the Minister for Health, issued on 6 September 2001, specifies the conditions under which patients in Lithuania can be referred for treatment abroad, in cases where the
necessary treatment for a certain illness is not available in Lithuania. The decision is taken by a special commission of experts appointed by the Minister for Health, and the expenses of such
treatment are covered by the Compulsory Health Insurance Fund.”
Here is the Court’s assessment on Article 8 and the personal code:
“56. The Court would emphasise the positive obligation upon States to ensure respect for private life, including respect for human dignity and the quality of life in certain respects (see,
mutatis mutandis, Pretty, cited above, § 65). It has examined several cases involving the problems faced by transsexuals in the light of present-day conditions, and has noted and endorsed the
85
evolving improvement of State measures to ensure their recognition and protection under Article 8 of the Convention (see, for example, Christine Goodwin v. the United Kingdom [GC],
no. 28957/95, ECHR 2002-VI; Van Kück v. Germany, no. 35968/97, ECHR 2003-VII; and Grant v. the United Kingdom, no. 32570/03, ECHR 2006-VII). Whilst affording a certain margin of
appreciation to States in this field, the Court has nevertheless held that States are required, by their positive obligation under Article 8, to implement the recognition of the gender change in
post-operative transsexuals through, inter alia, amendments to their civil-status data, with its ensuing consequences (see, for example, Christine Goodwin, §§ 71- 93, and Grant, §§ 39-44, both
cited above).”
The Court ruled that the State had to pass “subsidiary legislation,” probably referring to the legislation that was rejected in Parliament.
Council of Europe, Comparative Study on Partnership Regulation, 2009
“The Lithuanian Ombudsman Office reports that there is no domestic legislation on gender reassignment. Therefore, such operations are illegal. The result is that it is not possible for a
transsexual person, who has undergone gender reassignment, to have the post-operative gender legally recognized.” [Telephone interview with the Lithuanian Ombudsman Office,
February 5, 2009]
Lithuania FRA Report, 2008:
(…) national legislation permits the changing of documents in cases of gender reassignment (including change of name and sex in the documents). However, according to the Lietuvos
Respublikos gyventojų registro įstatymas [Law on Population Registers], the gender-sensitive personal code, which is given to every person when he or she is born, and is included in
personal documents, is unique and legally cannot be changed. Thus even when a person applies to the competent institutions willing to change his or her documents due to gender
reassignment, the gender-sensitive personal code remains legally unchangeable.
26. LUXEMBOURG
External Documents
No
All Documents
No
Marriage
No
ALTERNATIVE CODING
No
Note: Our sources suggest that the country does not uniformly guarantee the right.
Alternative Coding: No legislation.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
86
The Commissioner says the right is guaranteed through administrative procedures or court decisions.
Mr. Paul Borghs:
There seems to be no case law or law on transgender issues in Luxembourg. Probably the country is to small and transsexuality doesn't seem to be an issue.
Delvaux, Legal Consequences of Sex Reassignment in Comparative Law
[As the President of the Luxembourg Section of the International Commission on Civil Status – Luxembourg, he began speaking about the legal situation in his country]
“As the certifying of the sex of a new-born child is effected by the obstetrician or midwife, its recording o the birth certificate by the registrar has never been a matter for discussion. The
certificate in question records the historical fact of the birth of ta human being of one or the other sex, specifying the exact date and place and usually the names of the mother and father and
the forenames given to the child (Article 57 of the Luxembourg Civil Code). [pages 149-150]
“In Luxembourg, in the absence of any legislation on transsexualism, the legal problems relative to it are covered by case law concerning actions pertaining to personal status and basic
principles of Luxembourg civil law, particularly the law of persons. To decide these cases, the lower courts – the Court of Appeal has not been required to pronounce on the subject – take as
their basis French case law and doctrine, which must therefore be referred to. In this context, it is interesting to note that in a preliminary decision of 19 February 1979, the District Court of
Luxembourg dismissed an application for reassignment of sex from an alleged transsexual, holding that K. ‘has been unable to provide evidence that he presented physical characteristics of
the female sex at birth or even transsexual tendencies and hence that the sex recorded on his birth certificate is the result of error.’ In a later judgment dated 25 May 1988, however, the same
court in relation to the same applicant acceded to the request following a medical report ordered during the case stating that K. ‘should in future be described as female, and that,
consequently, in the birth certificate, the word ‘male’ should be replaced by ‘female’.”
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998)
- Relies on case law to deal with cases dealing with transsexuals.
- Luxembourg is following the example of Switzerland (see section on Switzerland). Luxembourg is also taking lead from French jurisprudence.
- In Luxembourg there has been one favourable court-decision (1985 - feville de liaison de la conference St Yves - No 66 of September 1986, page 43). allowing a rectification of the birth
certificate. This court decision was based on French jurisprudence requiring that the change was the result of an exterior cause and that the transsexual had the intimate conviction to be “a
victim of an error of nature”. On delivery of the court order and of the rectified birth certificate the change of name and identity papers can take place on request and without delay.
- Birth certificates / registration of sex
The procedure for registering a birth is covered in articles 55-57 of the Civil Code. The official criteria for registration of sex at birth is genital.
- For legal purposes, genital, chromosomal and psychological factors are considered to determine sex. Sex registered is a matter of historical fact but correction is possible because the surgery
is seen to be correcting a mistake. It is therefore possible to amend a birth certificate after birth in Luxembourg (articles 99-101 of the Civil Code). Such a procedure is only open to post-op
transsexuals.
87
- Official Documents
Birth certificates need to be produced before ID cards are issued. Official documentation showing sex must be shown at court proceedings (both civil and criminal), at police interviews, and
for the purposes of insurance and banking.
- The national ID card is mandatory and reveals an individuals’ sex. (available at http://www.pfc.org.uk/node/346)
UK Home Office (2000):
There is no legal framework for the recognition of a change of gender. However, this matter has been addressed in case law. An application for recognition of a change of gender must be
submitted to the public prosecutor. The court only rules in favour of a person if he/she “is deeply convinced to be a victim of an error of nature which he/she demands to be corrected”. The
judgement recognising the change of sex allows the applicant to obtain an amended birth certificate with the new gender. (Case law on the question of birth certificates is not consistent:
according to some judgements the acquired gender is to be added to the birth certificates with mention that the birth gender is replaced by the new gender, whilst other case law states that a
new birth certificate has to be provided with the acquired gender).
Marriage: Uncertain
The right of a transsexual person to marry in their acquired gender has not been tested.
De Schutter, Olivier, Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States – Part I – The Legal Situtation (2008)
The FRA Report had this to say about Luxembourg’s situation: “It may appear that Luxembourg, too, is in violation of the ECHR in this regard, since there are no legal provisions specifically
addressing the issue of gender reassignment to be applied by the Luxembourg Civil Status and Population Administration (Etat civil et population du Luxembourg).” (available at
http://www.equineteurope.org/fra_hdgso_part1_en.pdf)
Moyse, François, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Luxembourg (2008)
“Concurrently with this treatment, the individual would attempt to change his/her identity under Luxembourg law. However, there are no legal provisions specifically addressing this issue to
be applied by the Luxembourg Civil Status and Population Administration (Etat civil et population du Luxembourg). The most urgently needed provisions are those allowing a change of sex and
name on public records.” (available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_LU.pdf)
Commission internationale de l’état civil, Transsexualism in Europe Volume 1, 15 (2000)
Courts in Luxembourg are fairly strict and will grant an application only in a case of genuine transsexualixm, ie characterized by a discrepancy found early in life between the psychological
behavior of an applicant convinced of belonging to the opposite sex and the gender recorded on his or her birth certificate. He or she must have undergone surgery in accordance with a
profound need to behave as one of the opposite sex (see judgments of the Luxembourg district court: No. 53/87 of 28 January 1987, No. 294/89 of 31 May 1989 and No. 355/95 of 5 April
1995). On the other hand, the courts dismiss applications made purely for reasons of personal convenience. in theory, an application to the administrative authorities for a change of
forename could be based on the applicant’s conviction of belonging to the opposite sex, which could constitute a legitimate reason under the Forenames Act of 11 and 21 Germinal, Year XI
(French Republican calendar) as amended by an Act of 1982. However, since no application has ever been made on this basis, it is not clear how it would be received by the Government.
88
27. MACEDONIA
External Documents
No
All Documents
No
Marriage
No
ALTERNATIVE CODING
No
Note: According to information we have, the right to change documents is not uniformly guaranteed in Macedonia.
Alternative Note: The Commissioner found no evidence for the existence of the right.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country in which the Commissioner found no evidence of the right.
Expert on LGBT rights in Macedonia, Mr. Mladenovic Ninoslav:
Transgender persons remain highly marginalized and the transgender community is largely invisible. Exceptions are a few drag artists and a small Roma transgender community.
It is neither clear does Macedonian legislation permit transgender persons to change their registered sex on identity documents, nor the eligibility requirements to change are clearly
established by law. Furthermore, the legal definition of sex has varying degrees of specificity, subject to much variance in interpretation and practice. Therefore, the law could allow
transgender persons to change their registered sex once they have taken decisive steps, which may or may not include medical treatment or particular surgical intervention, to live in a
different gender.
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998)
- Gender reassignment surgery was carried out in the former Yugoslavia. However, following the civil war many transsexuals are left without hormone treatment and clean syringes. The state
of the law in the Balkan states is now unclear. (http://www.pfc.org.uk/node/346)
28. MALTA
External Documents
2004
All Documents
2004
Marriage
No
89
ALTERNATIVE CODING
2004
Notes:
1) In 1995 the Court held that the birth certificate should reflect the position of the person at birth and therefore gender reassignment was not a reason to alter the document. In 2001 it
changed its position and held that the fact that Maltese law did not provide for the particular circumstances of transsexuals constituted a violation of Article 8 of the European Convention of
Human Rights. This position was confirmed in subsequent cases. The expert on LGBT Rights in Malta mentioned a 2004 law that recognized the right. He also confirmed the existence of
previous court opinions recognizing the right.
2) A decision from November 30, 2010 by the Supreme Court recognized the right to marriage.
Alternative Coding: According to our sources, the 2004 amendments removed uncertainties.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe (p. 85)
Listed as a country that has legislation in place on the issue.
Raphael Vassallo, Transgender Case ‘Going Straight to the European Court of Human Rights’ – lawyer (Times of Malta)
In an unusual ruling that her lawyers plan to contest in Europe, the Court of Appeal acknowledged that the fundamental rights accorded to Ms Cassar by articles 8 and 12 of the convention
had been breached.
But the Court also observed that other remedies were available outside of marriage, and that the State should pass legislation to formally recognize such unions while stopping short of
granting full marriage rights.
The court also upheld the AG’s argument that the surgery undergone by Ms Cassar was not enough for the State to recognize her gender as female, despite having amended her birth
certificate from male to female. This, the Court noted, had been done in order to respect her privacy and spare her any embarrassment. (available at
http://www.maltatoday.com.mt/news/transgender-case-going-straight-to-european-court-of-human-rights-lawyer)
Updated FRA Report, 2010
Requirements unclear, decided by courts on an ad hoc basis (see table on p. 19)
Liberty Survey (1998):
- Maltese law does not refer to transsexuals in any way. However, the Consul said that this would mean that gender reassignment surgery could be considered legal. There have been no
reported cases in Malta.
Correspondence with Mr. Christian Attard:
90
3. According to Articles 257A to 257D of the Civil Code, a transsexual may request a change in their documents, including the birth certificate, with certain conditions. These include that the
person is unmarried, is domiciled in Malta and that s/he has undergone an irreversible and permanent sex change. This change was made in 2004, but prior to this the courts had already
found a violation of Article 8 of the ECHR, and documents were being changed already, although the procedure was much more difficult than it is presently, since one had to file an action
against the Director of the Public Registry.
Refalo, Ian & Comodini Cachia, Therese, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Malta (2008)
In these cases, the courts considered whether or not such changes should be clearly marked on the relevant certificate and the final decision was that the changes should be marked on the
formal certificate but not on the publicly accessible informal certificate. In an early judgment delivered in the case of Lawrence sive Roxanne Cassar vs Honourable Prime Minister [1995], the
Constitutional Court held that the birth certificate under Maltese law reflects the position of an individual at the time of birth, and unless there are errors, no alteration may be permitted on
such a document. This situation however changed in future judgments including that of Francis sive Mandy Zammit vs. AG and Director of Public Registry [2001] where the court held that the
fact that Maltese law did not provide for the particular circumstances of transsexuals constituted a violation of Article 8 of the European Convention of Human Rights. The same decision
ordered the registrar to make the necessary alterations on the relevant certificates. The same conclusion was reached in the case of George Camilleri sive Yana Camilleri Vs The Attorney
General and the Director of Public Registry [2002] where, besides agreeing with the previous judgment the court held that the situation did not amount to a violation of article 3 of the
Convention and article 36 of the Constitution. It is interesting to note that in these cases the court ordered that an annotation be made on the certificate that the change was made following a
court order. In the case of Paul sive Kathleen Schembri vs the Director of the Public Registry the court held that the annotation should include only that the amendment was made by virtue of
the court order and should not go into the details of the gender reassignment surgery. (available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_MT.pdf)
MARRIAGE
Calleja, Gabi, Press Release of the Malta Gay Rights Movement, December 2nd, 2010
The Malta Gay Rights Movement (MGRM) welcomes the judgement of the Constitutional Court of 30th November in the case of Joanne Cassar vs Director of Public Registry where the right of
transsexuals to marry was recognised. MGRM also notes the fact that the judgement made extensive reference to the case law of the European Court of Human Rights (ECrtHR) on the matter
and the manner in which this has evolved over time. The ECrtHR clearly states that biology is not the sole determining factor in determining gender and that current thinking and practice also
give considerable importance to psychological factors. Moreover, the ECrtHR held that the margin of appreciation allowed to States did not go so far as to permit the denial of a fundamental
right such as the right to marry for persons of the opposite legal sex.
Times of Malta, Transsexual Wins the Right to Marry
[Dates mentioned in the article coincide with the sources]
“Four years after she applied for her wedding banns, Joanne Cassar won the right to marry as a judge ruled her gender reassignment surgery should not prejudice her right to have a husband.
(…)”
“The law as applied by the registrar, he added, did not recognise the acquired gender of a transsexual for all legal purposes including marriage. This was in breach of Ms Cassar’s fundamental
human right to respect for family life and her right to marry. (…)”
91
“In February 2007, Ms Cassar won a civil case in which the court ordered the Marriage Registrar to issue the wedding banns he had previously refused to issue. However, in May 2008, the
decision was revoked on appeal. (...)”
Correspondence with Mr. Christian Attard:
4. Right now transsexuals are not able to marry a person of the opposite sex. There is however a case going through the local courts challenging this at the moment. At first instance the
plaintiff won, but it was reversed on appeal. Judgement should be delivered in October.
Transgender People Are Still Receiving Unfavorable Decisions at National Court in Spite of the European Court of Human Rights’ Decisions, in ILGA Euroletter No. 154, June 2008
Decision was revoked: The February 2007 decision mentioned below granting authorization to marry was revoked: One such clear example of the negation of rights is that decision that was
taken on 21st May 2008 in Malta by the Civil Court (First Hall).2 This decision revoked the marriage banns that were issued by the Civil Court (Voluntary Jurisdiction) on 12th February 2007, to
allow a trans woman to get married to her partner.
Refalo, Ian & Comodini Cachia, Therese, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Malta (2008)
Decision by the inferior court: (…) the right of a transsexual to marry was upheld by the court of first instance which stated that the marriage between a ‘female’ registered so after gender
reassignment surgery and a male does not run counter to the definition of marriage within the Maltese legal system. (p. 18) This was reported in the media, however the judgment is not
readily available as the name of the applicant has been kept unpublished. (available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_MT.pdf).
29. MOLDOVA
External Documents
1990
All Documents
1990
Marriage
1990
ALTERNATIVE CODING
No
Note: we still need more information.
Alternative Note: The Commissioner indicates there is no legislation in place.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Moldova is cited as a country in which the right is guaranteed through the judiciary. (http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 85)
Individual Report on Moldova, p. 23:
92
From the information presented by GenderDoc-M, from 2009 till present three persons succeed in changing their birth certificates, identity cards and national passports based on the unclear
legislation, without having their gender reassigned surgically. This was done upon the people presenting the document certifying the diagnoses of transsexuality. After the modifications in the
identification documents the transgender persons act based on the new legal gender.
This was due the legislation being permissive, leaving space for interpretation, which contributed to the success of these three cases due to a successful precedent.
According to the Information Centre “GenderDoc-M”, since 1990 there have been several more successful cases of this kind; however no information of the procedures followed were
documented.
Liberty Survey (1998):
- The situation in Moldova is similar to that for transsexuals in the Ukraine and the Russian Federation.
Liberty, Annex 3 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
The Liberty survey says the right existed in 1998. (available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-2.pdf)
MARRIAGE
Liberty, Annex 6 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
According to the Liberty survey, Moldova did not have any legislation on the issue in 2002. (available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-6.pdf)
30. MONACO
External Documents
No
All Documents
No
Marriage
No
ALTERNATIVE CODING
No
Note: Our only source suggests the right is not recognized.
Alternative Note: Same.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Monaco is cited as a country for which the Commissioner found no evidence of the right. (http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 85)
93
31. MONTENEGRO
External Documents
2009
All Documents
2009
Marriage
2009
ALTERNATIVE CODING
2009
Note: The Council of Europe report suggests that the right was introduced in 2009.
Alternative Note: A date could not be assigned.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe (p. 85)
Listed as a country that has legislation in place on the issue.
Individual Report on Montenegro, p. 26:
Montenegrin law allows for a gender marker change following the final decision on change of personal status by the department of the Ministry of Interior, and this has in practice been
interpreted to apply to persons who have completed gender reassignment medical procedure. The Law on Birth Registry[Law on Birth Registry (Zakon o maticnim registrima) Official Gazette
of Montenegro, no. 47/08, in force as of 1 January 2009, arts. 6, para. 2 Content of the birth registry and 14, para. 1 Change, addition or erasing of data. The law explicitly provides for gender
marker change, following the final decision on change of personal status by the competent body (department of the Ministry of Interior).] and Law on Central Registry of Population [Law on
the Central Registry of Population (Zakon o centralnom registru stanovnistva), Official Gazette of Montenegro, no. 49/07, art. 22 and 27, para. 2. The law prescribes the content of the birth
registration number, with one digit marking the gender, as well as it explicitly provides for the change of gender and hence of the birth registration number, conditional for change of gender
data in all personal documents including the birth certificate, identification cars, passport, etc.] recognise the possibility of a gender marker change in the birth registration number, birth
certificate and other personal documents, although without explicit reference to transgender persons. In practice, the Ministry of Interior conditions such change with completion of the
medical gender reassignment procedure, which should be supported by appropriate medical documentation.[ 168 Response of the Ministry of Interior to the request for information by A. S.
Zekovic, 03/01 No. 270/10-888, of 8 June
2010.] According to the information obtained from the Ministry of Interior, to date three persons have completed the change of gender marker procedure.[Ibid.]
32. NETHERLANDS
94
External Documents
1985
All Documents
1985
Netherlands
1985
ALTERNATIVE CODING
1985
Notes:
1) A 1985 law allows changes to the birth certificate and, as a consequence, to other state-issued documents, confirmed by at least two sources.
2) Dr. Waaldijk confirmed marriage was possible after this law.
Alternative Coding: The 1985 law was confirmed by at least two sources.
ILGA World Wrap Up Survey, November 2006
Yes, 1985
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998)
- Legislation passed in 1985.
- No minimum age requirement for Gender Reassignment Surgery.
- According to Dutch law every Dutch person who is convinced of belonging to a sex other than that mentioned in her/his birth certificate, and who has physically been adapted to the desired
sex - for so far this (from a medical and psychological point of view) was possible and justified - can request a court in the judicial area of his domicile to order that the indication of sex in the
birth certificate is modified on condition that this person is not married, cannot bear children or become pregnant.
With the request, a copy of the birth certificate has to be produced as well as a joint declaration of the appointed experts. This declaration has to be handed in six months before the request
is introduced and should indicate whether the petitioner has already physically been adapted to the other sex. When the permission is granted first names can also be changed on request.
- The rectification of the birth certificate and the alteration of a first name both take about three months. In the majority of States belonging to the European Community the legal issues
relating to transsexuals have been dealt with either by the executive or by case law. Dutch legislation is, however, a leading force in European law providing thus:
Articles 29a - 29c of the Dutch Civil Code
Art 29a
95
1.
Every Dutch national, who has the conviction to belong to the other gender than is registered in the birth certificate, has been physically adapted to the designated gender as much as
this is justified concerning medical and psychological views, can request the local court to change the registered gender in the birth certificate, if this person:
1.
is not married; and
2.
when registered male in the birth certificate is nevermore able to beget children, and when registered female in the birth certificate is nevermore able to bear children.
Art 29b
1.
2.
With the petition must be submitted a copy of the birth certificate as well as a by decree designated expert’s signed statement, issued at most six months before the date of submission
of the petition, which shows:
1.
the conviction of the petitioner to belong to the other gender than shown on the certificate of birth, as well as the opinion of a qualified expert that this conviction, taken into
account the period the petitioner has lived as such, and if so, to mention other facts or circumstances that this can be proven permanent;
2.
whether, and to what degree the petitioner has been adapted physically as much as justified and possible in medical and psychological view;
3.
that the petitioner when registered male in the birth certificate is nevermore able to beget children, and when registered female in the birth certificate is nevermore to bear
children.
The statement does not need to contain the first paragraph under a designated part when the petitioner has already been adjusted to the desired gender.
Art 29c
1.
When the court grants permission to change the registered gender, it can, when requested, also change the first names of the petitioner.
- In the Netherlands, a transsexual born female, but now living as a man in a marriage, becomes by law the father of a child born to the woman to which he is married and therefore will
register as the father of the child.
- A transsexual born female, but now living as a man in a marriage style relationship with a woman, will be able to register as the father of a child born to the woman by recognising the child
as his own before the civil registrar. (available at http://www.pfc.org.uk/node/346)
UK Home Office, Report of the Interdepartmental Working Group on Transsexual People, 2000
96
If the Court orders a change of gender on the basis of the above information, the registrar makes an entry on the birth certificate record the order making the change. Any change to the sex
stated on the birth certificate does not affect family law relationships. (NB The Dutch Government has tabled draft legislation to legalise same-sex marriages. This Bill has the support of the
three coalition parties and is expected to receive Royal Assent in late 2000/early 2001. If and when this bill is enacted, the requirements for transsexual people to be single in order to qualify
for legal recognition of their new gender will be abolished).
Marriage: Yes
There are no restrictions on the right of a transsexual person to marry in his/her new gender. (available at
http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/constitution/transsex/wgtrans.pdf)
Trans Gender Europe (2005): steps in the Netherlands (website no longer available)
All state-issued 'official documents' can be changed. University diplomas are usually very difficult if not impossible to change, and any other diplomas from private institutions. Change of sexentry of the civil status has to be obtained first, with this court ruling all official papers can be changed.
It's a court procedure, which has to be done though a lawyer. Costs usually run into several hundred to a thousand euros (depending on the fees for the lawyer). People without enough funds
will get financial support though from the state. Third-country legal residents may change their gender as well for any documents issued by the Dutch state. The procedure should be applied
for by a barrister in court. The case is dealt with administratively, without a formal session.
Rick Lawson et al., Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation – Netherlands, 2008
The civil courts have the competence, once an appeal for a change of sex has been granted and if so required, to order the change of the applicant’s first names (Article 1:28b(2), Civil Code). In
this respect, the court has to judge whether the interest for the granting of the request is sufficiently substantial. In addition the requested name must meet the general requirements of the
law on first names (Article 1:4, Civil Code).
In this respect the following case is interesting. In 2002 a Luxembourg national appealed to the Regional Court of The Hague for a change of sex and names. The request for change of sex was
granted under Dutch law. The change of names was problematic due to the fact that the applicant did not have Dutch nationality and, under rules of Dutch Private International Law the
applicable law was that of Luxembourg which at the time of procedures did not allow for a change of name in the situation at issue. Nevertheless, referring to the Goodwin judgement of the
European Court of Human Rights, the regional court ruled that a change of sex is a change of status within the meaning of Article 1 of the Convention on the recording of surnames and
forenames in civil status registers (Istanbul 1958) of the Commission Internationale de l’Etat Civil (CIEC) [International Commission on Civil Status (ICCS)] and ordered the change of the
applicant’s names. (available at http://www.fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_NL.pdf)
33. NORWAY
External Documents
All Documents
Marriage
97
1963
1963
1963
ALTERNATIVE CODING
1963
Notes: In 1963, Norway began providing treatment for transsexuals at a public hospital. Individuals are able to change their birth certificates and enjoy full rights.
Alternative Coding: We don’t know of a statute, but this is the year in which treatment began to be funded publicly, so it is probably a transgender-specific legislative or policy change.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Identified as a country that has transgender-specific legislation on change of gender in documents.
Individual Report on Norway, p. 13
As mentioned in chapter 7 transgender persons can change their official or legal gender when having gone through the entire procedure of gender reassignment, including surgery aimed at
complete sterilization. There is but one legal provision concerning change of official gender, in the regulations concerning the National Registry [Forskrift til lov om folkeregistrering], Art. 2.2 s.5,
which only states that you can change your registered gender when your “gender status has changed”. So one’s legal gender is still mainly a medical issue, not a legal question, as it is up to
the doctors to determine the gender status. Practice has been varying, and recently a issue paper came from the Tax Directorate stating that the GID clinic alone could confirm a change in
gender status, but this has turned out to be a misinterpretation of a letter from the Directorate of Health, and LLH is still awaiting the correction from the Tax Directorate as of July 2010.
(http://www.coe.int/t/Commissioner/Source/LGBT/NorwayLegal_E.pdf)
Correspondence with Tone Maria Hansen (Harry Benjamin ressurssenter) (March 7, 2011)
In Norway we have had public funded treatment for people born in the wrong body (diagnose transsexualism) since 1963 at the state hospital, Rikshospitalet. Since 1963 people with the
diagnose transsexualism have gotten a new birth certificate and that gives them the same legal right as everybody else in the Norwegian society. That means that they are accepted as a
women or a man legally. They can merry some one of the same sex or opposite sex.
Liberty, Annex 3 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
The Liberty survey says the right existed in 1998. (available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-2.pdf)
Commission internationale de l’état civil, Transsexualism in Europe Volume 1, 16 (2000)
In Norway, transsexuals who have undergone sex-change operation may ask the civil status authorities to rectify the gender on the birth certificate and the personal identification number in
the national register. They must present a certificate issued by the chief surgeon of the Oslo state hospital. A new forename may also then be attributed and recorded in the national register.
These provisions apply whether the operation was carried out in Norway or abroad.
Liberty Survey (1998):
- Relies on administrative action to deal with transsexuals. Changes in birth register therefore lie in the competence of the administration.
98
- Birth certificates / registration of sex
- The sex registered reflects and individuals’ current identity, and gender reassignment is considered under the law as a change of sex.
- Once surgical gender reassignment has taken place a new birth certificate will be issued by the government. A new birth certificate is only open to transsexuals after surgery. Once the
replacement birth certificate has been issued there are no reasons for using the former birth certificate and the person will not be asked to issue it at any time.
- Other documents will be provided in the new gender provided that a new birth certificate has been issued.
- Official documents that show sex must be produced at police interviews, civil and criminal court appearances and in banking an insurance.
- There is no Norwegian national identity card.
- Family and home rights
A transsexual in their reassigned gender does have the right to marry under Norwegian law. Consequently, transsexuals have the same spousal rights as other citizens, although the law does
not distinguish between transsexuals and other citizens.
MARRIAGE
Liberty, Annex 6 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
The Liberty Survey classifies Norway in 1998 as a country that allows the marriage. (available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-6.pdf)
34. POLAND
External Documents
Until 1978 (no)
1978-1989 (yes)
1989-1990 (no)
1991-onward (yes)
All Documents
Until 1978 (no)
1978-1989 (yes)
1989-1990 (no)
1991-onward (yes)
Marriage
Until 1978 (no)
1978-1989 (yes)
1989-1990 (no)
1991-onward (yes)
ALTERNATIVE CODING
No
Note: The right was recognized by a 1978 decision, briefly overturned in 1989 and later reaffirmed in 1991.
99
Alternative Coding: The Commissioner says the right is guaranteed in Poland through court decisions or administrative procedures.
SOURCES ON DOCUMENTS
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country in which transgender persons are able to have their new gender legally recognized, either through going to court or by certain administrative practices or decrees.
(http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf p. 85-86)
Rzeplinski, Andrzej, Legal study on Homophobia and Discrimination on Grounds of Sexual Orientation – Poland 42 (2008)
All three dates: In Poland sexual identification is protected as a personal right. The concept of a personal right to self-determination about an individual’s belonging to a particular sex was
developed in the judgment of the Supreme Court in 1978 [Judgment of the Supreme Court of 02.02.1978, CZP 100/77]. It accepted that it is not only external physical features and organs
which define an individual’s sex, but also emotional association with the gender opposite to that assigned at birth. The Court found that no-one could be forced to be a man (or woman) if s/he
internally denies it. Moreover, the Court stated that in exceptional circumstances courts can rectify acts of civil status before sex reassignment surgery takes place if the features of the new
sex are predominant and changes are irreversible. In this regard it extended the scope of personal rights. The Supreme Court in a later judgment withdrew from its earlier position and
rejected the position that transsexualism justifies rectification of birth certificates in regard to sex as defined at birth [Decision of the Supreme Court of 22.06.1989, No. III CZP 37/89]. The
Court stated that acts of civil status only have a declaratory character and describe the legal status of a person resulting from acts of law and transsexualism could not be described as a
change by acts of law, since it is a psychological transformation.]. The new approach made it impossible to rectify acts of civil status. In order to modify this data included in the acts of civil
status, Article 21 of Ustawa o aktach stanu cywilnego [Law on Acts of Civil Status] foresees the institution of additional inscription (note). Only on this basis can a transsexual person apply for a
change of first name and, in most cases, the ending of the last name. Subsequently, the Supreme Court recognised that determination of gender identity belongs to personal rights so that the
interested person can file an action for a declaratory judgment (in accordance with Article 189 of the Civil Procedure Code) [Judgment of the Supreme Court of 22.03.1991, No. III CRN 28/91].
In this procedure the court determines the legal sex of the transsexual. (available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_PL.pdf)
Delvaux, Legal Consequences of Sex Reassignment in Comparative Law
“In Poland, the only East European country for which information has been forthcoming, there are no specific regulations concerning transsexualism, although the courts have had to deal with
it. In the last few years, the Supreme Court has made two judgments, the first dated 22 June 1988, when it decided that transsexualism was not a cause justifying the rectification of civil status
records, which according to the regulations in force can take place in only two cases: error or inaccuracy in the records. In its second decision, of 22 March 1991, the Supreme Court accepted
that the enduring feeling of not belonging to the sex indicated on the birth certificate is protected by the provisions of the Civil Code concerning the protection of each individual’s personal
property and that therefore it was possible to start a procedure with the object of changing the transsexual’s civil status in two stages: firstly, to establish the existence of an individual right in
relation to the protected property, in this case the new sex, then, the recording of the change of sex on the birth certificate. According to the Supreme Court this change in civil status is in
principle justified only after surgery. Despite the latter decision, the problems posed by transsexualism continue to cause so much controversy in Poland that most lawyers consider legislation
on the subject necessary.
Updated FRA Report, 2010
Gender and Name Change: No legislation in place, requirements set by court practice (see table on p. 18).
100
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998)
- Changes in birth register lie in the competence of the judiciary. There is no specific legislation.
- Two Supreme Court judgments deal with transsexuality in Poland:
22 June, 1988
It was decided that transsexuality is not a cause justifying the rectification of civil status record, which take place only on error or inaccuracy in the records.
22 March, 1991
The Supreme Court accepted that the enduring feeling of not belonging to the sex indicated on the birth certificate is protected by the provisions of the Civil Code concerning the protection of
each individual’s personal property and that therefore it was possible to start a procedure with the object of changing the transsexual’s civil status in two stages:
1.
to establish the existence of an individual right in relation to the protected property (here, the new sex), then
2.
the recording of the change of sex on the birth certificate.
- According to the Supreme Court, this change in civil status is in principle justified only after surgery. (available at http://www.pfc.org.uk/node/346)
Information from Ms. Agnieszka Kumaş
it is possible for transsexuals to reflect their new reassigned gender in their documents. Poland does not have any law concerning the gender reassignment procedure, whereas the legal
process of changing gender is possible to conduct in Poland according to Article 189 of the Code of Civil Procedure. A person willing to reflect his or her new gender in his or her files must sue
his or her parents for wrongful registration in the Vital Records Registration. The first judgment of the court in the aforementioned matter was issued in Warsaw Court on November 24th,
1964. Since we do not have any law concerning the gender reassignment - I would consider the date ( Nov. 24th, 1964) as transgender rights (the full recognition of rights of the new gender,
including the rights to marriage) became effective. After a gender reassignment process - a person receives a new birth certificate, also the PESEL - personal identification number is being
changed (the combinations of numbers in PESEL reflects gender in biological sex of the person in Poland). To get married in Poland, a person must present a birth certificate and a identity card
- so without any problems a person after a gender reassignment process can get married.
35. PORTUGAL
External Documents
2011
All Documents
2011
Marriage
2011
101
ALTERNATIVE CODING
2011
Note: The parliament passed the Gender Identity Law after a veto by the President.
Alternative Coding: The 2011 Gender Identity Law.
SOURCES ON DOCUMENTS
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a state that has adopted legislation on the legal recognition of the preferred gender. (http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 85-86)
ILGA Portugal
Na sequência do veto presidencial, a Assembleia da República reaprovou hoje, com uma maioria alargada (que incluiu também 7 membros do grupo parlamentar do PSD) a lei que vem
finalmente permitir o reconhecimento da identidade de género das pessoas transexuais. Ao contrário do Presidente da República, a Assembleia veio assim reforçar a importância da inclusão e
da garantia do direito à identidade de todas as pessoas. [The Assembly reversed the Presidential veto to the Gender Identity Law] (available at http://www.ilga-portugal.pt/noticias/225.php)
ILGA PORTUGAL
comunicado: Veto à lei da identidade de género é um ataque do Presidente da República à minoria mais discriminada de Portugal
2011-01-06
Veto à lei da identidade de género é um ataque do Presidente da República à minoria mais discriminada de Portugal
Cavaco Silva anunciou hoje o veto à lei que vem simplificar o reconhecimento do direito à identidade das pessoas transexuais, que, de acordo com vários estudos recentes, constituem a
minoria mais discriminada em Portugal.
Mais: o Presidente da República escolhe ignorar compromissos de Portugal com o Conselho da Europa e com os Direitos Humanos. Relembramos que esta lei surgiu na sequência de uma
recomendação do Comissário Europeu dos Direitos Humanos ao Governo português - e, como tivemos oportunidade de enfatizar na audição promovida pelo Grupo de Trabalho da 1ª
Comissão, no âmbito do processo que conduziu a esta versão final, esta legislação respeita as recomendações específicas do mesmo Comissário quanto ao seu conteúdo e garante, na sua
formulação final, o reconhecimento da identidade de género de todas as pessoas transexuais.
Vale a pena frisar que todos os aspectos referidos por Cavaco Silva já foram, de resto, objecto de discussão parlamentar - e a formulação final resulta da preocupação que a ILGA Portugal teve
oportunidade de expressar e que deveria ser também a preocupação de um Presidente da República: a inclusão e a garantia do direito à identidade de todas as pessoas.
102
Aliás, é de referir que, ao contrário da Assembleia da República, Cavaco Silva optou por tomar esta decisão sem ouvir as próprias pessoas transexuais e sem ter sequer tido o cuidado de tentar
perceber as implicações das questões que levanta.
Lamentamos, por isso, profundamente esta tomada de posição do Presidente da República. A actual lacuna legal é em si mesma uma violação dos Direitos Humanos e um convite à exclusão
social das pessos transexuais, que se vêem impedidas de ter acesso à sua cidadania nos mais diversos âmbitos: do emprego à educação, passando pelo acesso a bens e serviços e chegando ao
próprio exercício do direito ao voto.
Foi este convite à exclusão social que foi hoje reiterado por Cavaco Silva.
Estamos, porém, confiantes de que a maioria alargada (que incluiu um conjunto de deputadas e deputados do grupo parlamentar do PSD, para além do PS, BE, PCP e PEV) que aprovou esta lei
a reafirmará no Parlamento, respeitando o direito à identidade de todas as pessoas e respeitando o compromisso de Portugal com os Direitos Humanos.
Lisboa, 6 Janeiro 2011
A Direcção e o Grupo de Intervenção Política da Associação ILGA Portugal (available at http://www.ilga-portugal.pt/noticias/205.php)
ILGA Portugal Website; ILGA-Europe Website
The Portuguese Parliament passed legislation in November 2010 that still awaits official publication. It establishes the official procedure for changing documents.
Updated FRA Report, 2010
Gender and name change: Case-by-case decisions by courts, new act expected (see table on p. 18)
Thematic Study on Homophobia and Discrimination on Grounds of Sexual Orientation (Portugal) 22 (2008)
The birth certificate is the document that determines a person’s gender. In the absence of any law regulating name changes in terms of gender, transsexuals wishing to change their name are
compelled to initiate a legal proceeding before the State. Courts have continued to express the view that a lacuna in this area still exists (though with some exceptions). [This document cites a
court decision from 1984 and I could not find a decision before this date. There is also a decision from 1986 that denied the right to change documents, and is treated by the author as
exception.] (available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_PT.pdf)
Commission internationale de l’état civil, Transsexualism in Europe Volume 1 12 (2000)
In Portugal, where the Court of Cassation has never had to rule on the matter, the higher courts agree that such cases are status actions. They appear to be quite favorably disposed towards
applications, especially the Lisbon Court of Appeal, which has twice granted applications for the gender and forenames appearing on birth certificates to be changed. The courts require that
the individual be irreversibly convinced of belonging to the opposite sex and should have undergone surgery to acquire its physical appearance. On 10 December 1991, the Lisbon Regional
Court also ruled that such a person should be unmarried and unable to procreate. However, transsexuals cannot take administrative steps to change the gender on the birth certificate, this
procedure being reserved for special cases where gender was never recorded on the birth certificate.
Swatschek, S (2005) Report on ‘Transsexuality and International Private Law’; (Title of the legal opinion given by the Max-Planck-Institut in the proceedings of AZ.I BvL 1/04 of the
Constitutional Court in Germany), Brussels: ILGA-Europe
103
“It appears that a gender recognition ruling will also be highly unlikely in Portugal.” The author mentions four decisions in favor (1984, 1991, 1994 and 1993) and two decisions against, one of
the court of appeals and the other of a superior court (both regarding the same case, from 1986 and 1988). (available at
http://www.asylumlaw.org/docs/sexualminorities/TransgenderIssuesFRALegalStudy.pdf)
MARRIAGE
European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 10 (2010)
The country does not allow such marriages (available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues
36. ROMANIA
External Documents
(1996)
All Documents
(No)
Romania
(No)
ALTERNATIVE CODING
1996
Notes: There are two sources of law for the changes in documents: a statute from 1996 and a government ordinance from 2003.
Alternative Coding: Although the Commissioner classified Romania as a country that has transgender-specific legislation, there are still uncertainties in the procedures. The legislative change
happened in 1996, and in 2003 changes were brought by a government ordinance.
SOURCES ON DOCUMENTS
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a state that has adopted legislation on the legal recognition of the preferred gender. (http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 85-86)
Individual Report on Romania, p. 43,
The law on civil registration data [Romania/ Lege 119/1996 cu privire la actele de stare civila [Law regarding civil status documents] (11.11.1996) with the last modifications from 08.09.2006.]
and the law on the procedures for identification documents [Romania/ Ordonanta Guvenului 41/2003 privind dobândirea si schimbarea pe cale administrativa a numelor persoanelor
fizice,(02.02.2003) with the last modifications from 06.07. 2004.] offer only indirect guidance on the procedure for sex change and for changes to names and identification data. The legal
provisions state that, in order to effect changes in the identification data or in order to undergo sex-change surgery, the plaintiff needs a final judgement which is an intrusion on the right to
private life of the person, as explained below. [Art. 44(i) and Art. 57-58 of the Law 119/1996.]
104
In addition, the conditions under which the right to access to a court might be exercised are not clarified in sufficient detail, adding to the uncertainties of the procedures.
(http://fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_RO.pdf)
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998)
- Gender reassignment surgery is being allowed for the first time in Romania. (available at http://www.pfc.org.uk/node/346)
Law no. 119/1996 regarding civil status documents
The law is available in PDF. It seems to allow changes to the civil registries in several situations, including divorce, adoption, death and sex change after a final and irrevocable decision.
Government Ordinance no. 41/2003 regarding administrative change of the name of a person
Ordinance is available in PDF. Allows changes on several grounds, and for this reason I believe it merely changes the procedure, rather than introduce the possibility of changes.
Romania Report, 2008
Several people in Romania have undergone hormonal treatment and sex-reassignment surgery. However, there is no legislation that specifically addresses the steps necessary to change a
person's sex. Legislation about the procedures necessary for name changes refers to the obligation to get a final court decision before changing one's sex [Footnotes: Article 44 point i of Law
no. 119/1996 regarding civil status documents, and Article 4 para. 2 point 1 of the Government Ordinance no. 41/2003 regarding administrative change of the name of a person]. However,
law and procedure are unclear beyond this and consequently people seeking to change their sex undergo a long and painful process. Courts customarily require an expertise report from the
Institute for Legal Medicine stating a person's actual sex but the Institute's personnel do not have the expertise necessary to provide this in-depth analysis.
Name Change in identification documents: The secondary legislation adopted by the executive branch addressing name changes creates a convoluted process for transgender people to legally
change their name. (http://www.iglhrc.org/binary-data/ATTACHMENT/file/000/000/74-1.pdf)
37. RUSSIAN FEDERATION
External Documents
1997
All Documents
2000
Marriage
(2000)
ALTERNATIVE CODING
2000
Notes: Laws allowing changes to documents were passed in 1997 (birth certificate), 1997 (Passport), 2000 (CHI Health Insurance Number).
105
Alternative Coding: The right to change documents and other forms of identification only became complete in 2000, when the law permitted changes to the gender-specific health insurance
number.
SOURCES ON DOCUMENTS
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a state that has adopted legislation on the legal recognition of the preferred gender. (http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 85-86)
Individual Report on Russia, p. 9:
According to the analysis of the activity of the Council of Europe in general and the European Court of Human Rights in particular, a number of issues are regulated by the Russian legislation in
compliance with the conclusions made at the international (European) level (decriminalisation consensual same-sex relations, equalisation of the age of consent to same and different-sex
sexual relations, the possibility to rectify birth certificates and passports of transsexual people, etc.) (http://www.coe.int/t/Commissioner/Source/LGBT/RussiaLegal_E.pdf)
Global Rights, et al., Violations of the Rights of Lesbian, Gay, Bisexual, and Transgender Persons in RUSSIA (2009)
Although the state legally recognizes gender reassignment for transsexuals, and Russian legislation provides for transgender persons to gain legal recognition in their preferred gender, there
are shortcomings. The recognition is not legally guaranteed and can depend largely on specific circumstances such as the particular Registry Office or judge being asked to acknowledge the
gender reassignment. Article 70 of the Federal Law “On Acts of Civil Status” provides for the documentation by health authorities confirming gender reassignment; however, registry offices
will sometimes refuse to recognize these documents. Additionally, Article 70 requires completion of standard form that still has not been approved. Therefore, transgender people may be
forced to resort to the uncertain process of applying for a court judgment addressing their gender reassignment.
Such situation not only violates articles 16 and 17 of the Covenant, but it is contrary to the provisions of the European Court of Human Rights, of which Russia is state party, as established by
the European Court of Human Rights in its decisions. According to Goodwin v. United Kingdom the failure of the state to give legal recognition to the gender of a postoperative transsexual
individual violates article 8 of the European Convention, protecting the right to private life, asserting that “the unsatisfactory situation in which post-operative transsexuals live in an
intermediate zone as not quite one gender or the other is no longer sustainable”. (available at http://www2.ohchr.org/english/bodies/hrc/docs/ngos/JointStatement_Russia97.pdf)
Liberty Amicus Brief to the Case of Sheffield & Horsham v. UK (1998)
- The situation in the Russian Federation is almost identical to the situation of transsexuals in the Ukraine. (available at http://www.pfc.org.uk/node/346)
Trans Gender Europe (2005): steps in Russia
Address to corresponding state authorities. Files that are 'historical', i.e. are conserved in the archives never can be changed. The birth certificate never can be changed.
Russian LGBT Network, The Situation of Lesbians, Gays, Bisexuals and Transgender People 12 (2008)
The previous legislation provided for the possibility of changing records indicating the sex of the citizen, but hermaphroditism was the only ground for doing so. The current legislation not only
stipulates the possibility in principle of documenting the changed gender in the case of surgical gender reassignment of transsexuals, but also specifies the procedural provisions related to his
question. Some specific examples are: - The Federal Law “On Acts of Civil Status” 1997, which provides for the possibility of rectifying acts of civil status based on the document confirming
gender reassignment issued by a health institution (art.70), at the same time changing the name of the citizen (art.60) and issuing a new birth certificate; - The Provision of a Passport of the
106
Citizen of the Russian Federation of the 8th July 199711, according to which gender reassignment is grounds for passport replacement; - Administrative Regulations of the Federal Migration
Service on the provision of state service relating to the issue, replacement and fulfilment of the state duty to keep records on passports of the citizens of the Russian Federation, attesting
identity of the citizen of the Russian Federation on the territory of the Russian Federation, approved by the Order of MOI RF of 28th December 2006, according to which, in the case of gender
reassignment, it is necessary to present the passport to be replaced and the name change certificate in order to receive a new passport; - The Order of the Federal Fund of Compulsory Health
Insurance of the 15th August 2000 No.67 “On the Introduction of the Unified System of CHI Health Insurance Police Number Formation”, according to which YYYYMMDDNNNN facets of the
health insurance policy number remain unchanged during the entire life of the citizen except for cases of gender reassignment. Thus, the Russian legislation provides for the main grounds
establishing the possibility and orders relating to gender reassignment. However, there are certain gaps: art.70 of FL “On Acts of Civil Status” mentions not only a document confirming gender
reassignment issued by a health institution, but a standard document. Such standard form has not been approved yet, and there are situations when registry offices do not recognise the
document issued by a health institution as grounds for modifying the civil status. Thus, in order to use their rights (formally guaranteed by the legislation) citizens have to apply to the court. In
their turn, courts deliver a judgment on establishing the legal fact of gender reassignment, which is not quite an unambiguous solution from the viewpoint of legal theory and legislative
practice. (available at http://ilga-europe.org/home/publications/reports_and_other_materials)
MARRIAGE
Expert on LGBT rights, Mr. Dmitri Bartenev:
“No. There is no legislation on this issue.”
Council of Europe, European Committee on Legal Co-Operation (CDCJ), Comparative Study on Partnership Regulation in the Council of Europe's Member States with a View to Identifying
Possible Measures to Avoid Discrimination on Grounds of Sexual Orientation or Gender Identity (prepared by the Danish Institute for Human Rights (DIHR), 2009
Sometime before 2009: Transsexual persons enjoy the right to marry a person of the opposite sex of the transsexual person's acquired gender.
Liberty, Annex 6 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
Not in 1998: (available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-6.pdf)
Russian LGBT Network, The Situation of Lesbians, Gays, Bisexuals and Transgender People 16 (2008)
Not in 2008: Finally, transsexuals constitute a gap in the current Russian family legislation, because the FC RF fails to provide for the situation of parent and matrimonial legal relations of such
people. Thus, even despite surgical change of sex, the modification of gender on birth certificate and passport, marriage certificate and birth certificate of their child, a transsexual will have
the status corresponding to their previous gender. (available at http://ilga-europe.org/home/publications/reports_and_other_materials)
38. SAN MARINO
External Documents
No
All Documents
No
Marriage
No
107
ALTERNATIVE CODING
No
Note: Our only source is the Commissioner’s report, which found no evidence of the right in San Marino.
Alternative Coding: No evidence of the right.
SOURCES ON DOCUMENTS
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
The Commissioner could not identify legislation regulating legal recognition in this country, nor find evidence of the “possibility for transgender persons to have their preferred gender legally
recognized in an alternative manner (in the absence of legislation).” (http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf p. 85-86)
39. SERBIA
External Documents
No
All Documents
No
Marriage
No
ALTERNATIVE CODING
No
Note: The Council of Europe individual report indicates that the right to change documents is not clear in Serbia.
Alternative Coding: The CoE report says the right is guaranteed through court decisions or administrative procedures.
SOURCES ON DOCUMENTS
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a country in which transgender persons are able to have their new gender legally recognized, either through going to court or by certain administrative practices or decrees.
(http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf p. 85-86)
Individual Report on Serbia, p. 23:
108
Still, many issues lack clear polices; some of them include the change of the name, identification number, parental rights accessed through new personhood status, and rights to social and
health care. Because of lack of legislation and recognition before the law, transgender persons in Serbia are not allowed to get state-funding for gender transforming hormone treatments.
Expert Mr. Goran Miletic: “3. Yes, but no any law related to that. However, in practice, when person change a sex, institutions are changing the name, birth certificate and other documents
without any problems.”
MARRIAGE
Expert Mr. Goran Miletic:
“4. Serbian law recognized only marriage and COHABITATION between two person of the opposite sex. Consequently, once when person change a sex and relevant documents, there are not
problem to marry.”
40. SLOVAKIA
External Documents
1981
All Documents
1981
Slovakia
1981
ALTERNATIVE CODING
2000
NOTES:
1) Slovakia is a difficult case because of the conflicting information we have on the Czech Republic.
2) Because the International Commission on Civil Status gave 1981 as the date, this was the coding.
3) We still need more information on marriage.
Alternative Coding: According to the Embassy, the uncertainties were only eliminated with laws passed in the 1990s and 2000. The Ambassador says the personal identification number could
be changed as of 2000, but the individual report from the Council of Europe says the law is from 1995. It is possible that this law was passed in 1995 and amended in 2000 to allow for the
change.
SOURCES ON DOCUMENTS
109
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a state that has adopted legislation on the legal recognition of the preferred gender. (http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 85-86)
Individual Report on the Slovak Republic, p. 39:
According to the Act on Identification Number [Slovakia/zákon 301/1995 (14.12.1995)], each person born in Slovakia must acquire an identification number. Each number is unique and
different for male and female.
The Ministry of the Interior shall change the identification number of a transgender person upon receipt of a relevant medical statement. Such change is free of administrative charges. [Art. 9.
Slovakia/zákon 301/1995 (14.12.1995)]
Subsequently, transgender persons shall change (due to the change of his/her identification number) his/her birth certificate, ID, travel document, and change information in other public
registers (Social insurance register, Health insurance register, etc.). (http://fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_SK.pdf)
Ambassador Correspondence of August 12, 2010:
Yes, indeed transexuals can alter official documents in order to reflect their new gender. However, this can be done only after the surgery intervention. The conditions for surgery to change
the sex are stipulated in the law on helthcare of the population para 27 a) law number 20/1996. Afterwords, one can ask to change the data in the register of population. Very often
transsexuals in the Czech Republic change also their first names and surnames (as the ending of surnames in most of the cases clearly identify the sex of the person) and they adopt some
neutral names. At the same time transexuals can ask to change their personal identification number which also clearly identifies the sex of the person (law number 133/2000) and also their
passeports (law number 329/1999) and their IDs (law number 328/1999).
Ambassador Correspondence of August 13, 2010:
Due to the non-existence of a specific law on the transexuality and the rights of transexuals in the Czech legislation, I understand that it´s quite difficult to identify the real date when those
rights became effective. One can say that in 1977 the notice to the law on register allowed changes in the register, but it didn´t mention the word „transexual“. However, it´s commonly
assumed that since the seventieth (so most probably since the entrance into force of this law) it was possible to change the sex also in the official documents. Once the data are changed in the
register, one can assume that this is a sufficient basis for the change of all documents (passeports, ID cards, etc.) even if it was not stipulated in any specific law before the ninetieth. The only
problem that could have occured is the change of personal identification number – there I could imagine some difficulties, clearly solved afterwords by the law number 133/2000.
In practice, there is a problem that all those changes don´t have a retroactive character. This might be a problem for instance as to the recognition of diplomas, that´s why the Ministry of
Education adopted in 1998 a regulation number 29 210/98-20 allowing the publication of diplomas obtained before the change of the sex under the new name.
To sum up one can say that to change the sex in official documents became possible with the law 1977 without a specific mentioning of the transexuals. The rights of the transexuals had been
improved by a set of laws in the ninetieth and in 2000 (some mention explicity the transexuals some not).
Updated FRA Report, 2010
Change of name granted simply upon application accompanied by a confi rmation by the medical facility (see table on p. 19)
Liberty Survey (1998):
110
- There is no special legislation in the Slovak Republic. However, the administration will allow a transsexual to change their name and birth certificate if a doctor can issue a letter stating that
Gender Reassignment Surgery has been successfully completed. The surgery is legally available in the Slovak Republic.
Procházka, Ivo, The Czech and Slovak Republics, in Sociolegal Control of Homosexuality: A Multi-Nation Comparison, by Donald J. West & Richard Green (Plenum Press, 1997)
Transsexuals can request the medical services necessary for sex reassignment. Legal change of gender is permitted under the law concerning registers of births and deaths (268/1949), which
covers mistakes and changes of gender. The law covering the use and change of first names and surnames (55/1950) allows transsexuals to change both names to accord with their new
gender. The first sex reassignments were done by sexologists in the 1960s; in the 1970s, sex reassignments had to be sanctioned by legal instructions from the ministeris (Brzek & Síová, 1983).
This law is applied in Slovakia also, but there is little professional accetance of sex changes there (Molcan et al., 1989).
Commission internationale de l’état civil, Transsexualism in Europe Volume 1 12 (2000)
1981: In Slovakia, two ministerial decrees were issued in 1981 [available in the book under “national legislation concerning transsexuals”], one by the Ministry of Interior and the other by
the Ministry of Health. The first deals with the procedure under which transsexuals, after undergoing surgery, may have the forename, surname and gender recorder in their birth certificate
amended. Under the second, amendment of civil status documents requires a formal declaration by a designated medical institution. Consequently, sex-change operations are not prohibited
in Slovakia. They seem very rare, however (there is no relevant case-law), notably on account of human reasons and also of practical reasons to do with the outdated nature of current
regulations. Proposals to update these regulations have so far come to nothing. The procedure for amending the gender recorded on a transsexual’s birth certificate is purely administrative: a
medical institution certifies that the syndrome is irreversible and that surgery has been carried out. By presenting this declaration to the local administrative authorities, transsexuals may
request that their forename and surname be changed (this latter aspect is peculiar to Slovak law). If the request is granted, the gender recorded on the birth certificate may also be changed
and a new certificate issued. finally, all other administrative documents may be re-issued to match the new identity. In theory, a sex change cannot be recognized if the operation was carried
out abroad since the medical certificate required to change civil status documents must be issued by a Slovak institution after an operation carried out in Slovakia. However, according to the
Ministry of Health expert, a Slovak medical institution should be able to issue a certificate even if the operation was carried out abroad, so that civil status documents could be amended
provided the syndrome was irreversible.
The Ministry of interior shall change the identification number of a transgender person upon receipt of a relevant medical statement. Such change is free of administrative charges [Art. 9.
Slovakia/zákon 301/1995 (14.12.1995)]. Subsequently, transgender persons shall change (due to change of identification number) his/her birth certificate, ID, travel document, and change
information in other public registers (Social insurance register, Health insurance register...)
MARRIAGE
Liberty, Annex 6 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
At least since 1998: available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-6.pdf
ILGA Europe, Transgender EuroStudy: Legal Survey and Focus on the Transgender Experience of Health Care 23 (April 2008)
Yes#: available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues
111
41. SLOVENIA
External Documents
2003
All Documents
2003
Marriage
(2003)
ALTERNATIVE CODING
No
Note: We have a date for when birth certificates could be changed, but we don’t know of the situations regarding other documents.
Alternative Coding: The Commissioner did not find any evidence of the right in Slovenia.
SOURCES ON DOCUMENTS
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
The Commissioner could not identify legislation regulating legal recognition in this country, nor find evidence of the “possibility for transgender persons to have their preferred gender legally
recognized in an alternative manner (in the absence of legislation).” (http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf p. 85-86)
Ms. Neza Kogovsek:
Yes, that is possible. This possibility was provided by the 2003 Register of Deaths, Births and Marriages Act. It is regulated a bit more into detail in the Rules on the implementation of the
Births, Deaths and Marriages Registry Act. When a birth certificate is issued, the change of sex is not included among the information at the certificate.
Updated FRA Report, 2010
No formalities for change of name (see table on p. 19)
Liberty Survey (1998):
- Gender reassignment surgery was carried out in the former Yugoslavia. However, following the civil war many transsexuals are left without hormone treatment and clean syringes. The state
of the law in the Balkan states is now unclear.
Justus Eisefeld, Homophobia – Legal Survey (2008): Compilation of Passages on Transgender Issues
No law: While the Constitution thus prohibits discrimination of transgender people as discrimination on the basis of ‘any other personal circumstance’, there are no specific laws explicitly
addressing their status and position in Slovenia. (available at http://www.asylumlaw.org/docs/sexualminorities/TransgenderIssuesFRALegalStudy.pdf)
European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 29 (2010)
112
However, there are no laws explicitly addressing the status and position of transgender persons. Neither is the change of name following a possible gender reassignment specifically regulated.
(available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues)
ILGA Europe and Trans Gender Europe, Trasgender Euro Study
under the column “What is required to Change Documents other than the Birth Record,” it just says “Yes” for Slovenia.
MARRIAGE
Expert:
The law does not specify that. However, if transsexuals would officially change their sex, as provided by the above mentioned act, after the inscription of the new sex marriage would be
allowed. Namely, Marriage and Family Relations Act states only that marriage is possible between a man and a woman.
European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 10 (2010)
No legislation (available at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues)
42. SPAIN
External Documents
2007
All Documents
2007
Spain
2007
ALTERNATIVE CODING
2007
Note:
1) A 2007 statute legally introduced the possibility of recognition of the reassignment.
2) Before this law, there were two problems. First, authorization to issue new documents depended on the position of each judge. Second, the sources indicate that even after a court decision
authorizing new documents, the law still only recognizes the sex indicated at birth. The Supreme Court has granted applications for gender change in official documents since 1987. In 2007 a
new law was passed which allows for gender change in documents.
Alternative Coding: 2007 Gender Identity Law.
SOURCES ON DOCUMENTS
113
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a state that has adopted legislation on the legal recognition of the preferred gender. (http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 85-86)
Delvaux, Legal Consequences of Sex Reassignment in Comparative Law
“Spain, too, is without specific legislation on transsexualism. Various decidions of the General Directorate of Registers and the Notary Public attached to the Ministry of Justice (17 March 1982,
17 February 1983 and 16 April 1984) specify that changes of sex resulting from a surgical operation and hormone treatment cannot be the subject of an administrative procedure to rectify
the sex entered on the birth certificate, as such rectification can be made only in cases of errors existing when the documents was drawn up and not those arising later. Rectifications based on
transsexualism must be the subject of an ordinary judicial procedure, an action for declaration of status which, if successful, will result in the alteration of the birth certificate.”
Liberty Survey (1998):
- Spain relies on case law/judiciary in dealing with transsexuals. There is no specific Spanish legislation on transsexuality.
- In Spain a modification of the Penal Code in 1983 made surgical intervention causing a change of sex no longer a penal offence. Moreover in July 1987 the Supreme Court recognised the right
of a transsexual to change sex. However, up to this date there is no legislation that regulates this right and transsexuals legally continue to keep the sex they had at birth. One can, however,
obtain legal documents in a new name and gender after a court order, which in theory would be no problem.
- Rectifications based on transsexualism must be the subject of an ordinary judicial procedure, an action for declaration of status which, if successful, will result in the alteration of the birth
certificate.
- Access to treatment and healthcare
As mentioned, Gender reassignment surgery was legalised in Spain in 1982. The right to reassignment stems from Article 10.1 of the 1978 Constitution which guarantees self-expression.
However there is no further legislation, and this creates a problematic gap in the law.
- Birth certificates / registration of sex
- The sex registered reflects and individuals’ current identity. However, reassignment is not recognised under the law as an official change of sex.
- The Spanish Supreme Court’s judgments in 1987 and 1991 recognise the right to change one’s name, but do not recognise all gender rights, especially the right to marriage. However if a
court recognised a marriage and the public prosecutor does not, appeal against the marriage, then the marriage is valid in that one occasion.
- It is theoretically possible to change a birth certificate in Spain. However, it would have to be done through a law suit, a procedure which can last up to 2 years. Even after this the results are
unsure. Such a procedure is, however, open to transsexuals regardless of whether they have had surgery. Because there is no established legal procedure for changing registered sex each case
is considered separately by a judge or public prosecutor who can ask for different modes of proof.
- Other documents will be provided in the new gender provided that a new birth certificate has been issued.
- The National Identity Card requires production of a birth certificate before issue and this ID card will be required for presentation at most places. The ID card is mandatory and reveals the sex
of the carrier. It is possible, however, to change the sex stated on the ID card.
- There is no procedure to protect transsexual people from unnecessary disclosure of their original sex.
- In Spain if a couple ask for a marriage and the court authorises that marriage, and if the public prosecutor does not appeal against the decision, the marriage can go ahead. This is true for
transsexuals.
- The Spanish Federation of Transsexual Associations is currently asking for a sex and gender change in the law which would involve all the rights forgotten in legal gaps in Spain’s legal system.
Immediate registration of gender and full marriage rights are at the top of the priority list. The government is currently considering this, and public opinion is openly supportive.
UK Home Office (2000):
Following a court order documents can be issued in the new name and gender. However, transsexual people legally keep the sex they had at birth.
114
Trans Gender Europe (2005): steps in Spain (Website no longer available)
Untill the Gender Identity Law will be on debate in the Parliament next autumn, the procedure is to go through the psychological, hormonal and surgical treatmentand then demand at court
the name one wants. For this is compulsory to have a positive certificate of transsexuality by the psychologist and psychiatrist, certificate of the endocrinologist of one's hormonal treatment,
certificate of the surgeon who did one's surgery and then, at court, one of the tests that are used as proof to consider one's sex and name change as possible, is the examination of a forensic
doctor of one's real acomodation of our body to the sex we are demanding (this is wat we most hate of all). After all this, it is up to the moral conception of the judge at court, which will finalli
decide if one achives the sex and name change or not. All documents can be changed after getting a positive sentence by the judge at court, because that means that one's birth certificate is
amended.
Update on the FRA Report 2010
(Information specific to the Navarra Community)
Legislation recently adopted in Spain by the Autonomous Community of Navarra is particularly progressive, since it clarifies that services provided by the Autonomous Community are to be
secured without discrimination to any individual who has initiated the procedure for changing the recorded sex on the ‘Registro Civil’ (the official document detailing one’ s legal personal and
family status). This Act provides a broad coverage as its aim is to guarantee that all persons who have socially adopted a gender opposite to the one assigned at birth receive holistic and
adequate attention for their medical, psychological, legal and other needs. Furthermore, the Act establishes not only measures in the medical field, but also positive actions for greater
integration in the workplace.
Commission internationale de l’état civil, Transsexualism in Europe, Volume 1 14 (2000)
In Spain, the Supreme Court has granted several applications for the gender recorded on birth certificates to be changed (see SS. 2 July 1987, 15 July 1988, 3 March 1989 and 19 April 1991) so
that it matches social gender and to allow personality to develop. Spanish law also provides a procedure whereby anyone presenting the transsexualism syndrome may change their forename
to a neutral one.
Spain Passes Transsexual’s Name and Gender Law, in ILGA Euroletter No. 140, March 2007 (p. 13)
“Spain's parliament passed a law allowing transsexuals to change their name and gender on official documents without needing to undergo surgery first. The law, which had progressed
through the country's lower legislative chamber earlier in the week, was opposed by the conservative opposition Popular Party.
“The new legislation requires transsexuals to present an official medical diagnosis stating a clinically proven case of gender dysfunction and to have undergone appropriate treatment for two
years before changes in identity documents can be performed.”
“Up until now, transsexuals in Spain could only change name and gender officially after a sex change operation and with the approval of law courts.”
Council of Europe, Steering Committee for Human Rights (CDDH), Committee of Experts on Discrimination on Grounds of Sexual Orientation and Gender Identity (DH-LGBT), Comments
and Examples of Good Practices Sent by Experts on the Draft Recommendation, 2009
Gender Identity Law, 2007 – Allows transgender persons to change their sex entry marks in registers of birth, in official documents and in identification papers and to change th first forename
to a gender appropriate one without genital surgery as a precondition.;
115
ILGA World Wrap Up Survey, 2006
Allows transsexuals who have gone through gender reassignment surgery to get their personal documents reflecting their new sex. Since 2006.
Transgender Europe, Country Survey: Civil Status
“Untill the Gender Identity Law will be on debate in the Parliament next autumn, the procedure is to go through the psychological, hormonal and surgical treatmentand then demand at court
the name one wants. For this is compulsory to have a positive certificate of transsexuality by the psychologist and psychiatrist, certificate of the endocrinologist of one's hormonal treatment,
certificate of the surgeon who did one's surgery and then, at court, one of the tests that are used as proof to consider one's sex and name change as possible, is the examination of a forensic
doctor of one's real acomodation of our body to the sex we are demanding (this is wat we most hate of all). After all this, it is up to the moral conception of the judge at court, which will finalli
decide if one achives the sex and name change or not.
All documents can be changed after getting a positive sentence by the judge at court, because that means that one's birth certificate is amended.” (available at http://tgeu.net/)
MARRIAGE
Liberty, Annex 6 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
Right was recognized in 2002 (available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-6.pdf)
2007 Gender Identity Law
Article 5(2): 2. The rectification in the civil register will allow the person to exercise all the rights attached to her/his new condition. (available in English at
http://www.pfc.org.uk/files/Spain.pdf)
Commission Internationale de l’État Civil, Transsexualism in Europe volume 1 24 (2000)
General comment on case law in Spain: The question of marriage is also raised by certain judgments of some supreme courts where marriage was not the immediate issue. In Spain, the
Supreme Court ruled that marriage remained a traditional legal union between two persons of opposite biological sex and that the marriage at issue would require the courts’ permission.
(available at http://books.google.com/books?id=nGyPxInLdAC&printsec=frontcover&dq=Transsexualism+in+Europe&hl=en&ei=ApJNTO6vI8LflgfZyPH1DQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCwQ6AEwAA#v=onepage&q&f=fals
e)
Platero, Raquel, Outstanding Challenges in a Post-Equality Era: The Same-Sex Marriage and Gender Identity Laws in Spain, 21 International Journal of Iberian Studies (2008)
Marriage rights were not one of the main demands of transgender activists: The author lists the demands of transgender organizations, none of them being the right to marry after public
documents are changed. These rights were: the right to sexual and gender identity regulated by an Integral Law on Gender Identity; the regulation of all transgender people’s access to the
rectification of their name and sex in the Civil Register through an administrative procedure; the lack of compulsory requirement of sex reassignment surgery; inclusion in the public health
system of the clinical treatment of sex reassignment (psychotherapy, hormonal treatment, plastic surgery, etc; and positive actions by the Public Administrations and social agents to fight
discrimination in the labour market. The platform also demanded the regulation of sex workers, separate from the measures for integration in the labour market; measures for creating social
awareness, such as education about transgenderism. On the legal side, the organisations agreed on the need for: political asylum rights for transgender individuals persecuted in their country
116
of origin; the criminalisation of ‘transphobia’ in the Penal Code; rehabilitation and compensation for victims of the repression and imprisonment under the old Francoist Laws on Vagrants and
Idle Persons and on Persons Representing a Social Danger and their Social Rehabilitation; and finally they asked for support for transgender organizations. (available at http://www.ilgaeurope.org/home/guide/country_by_country/spain/outstanding_challenges_in_a_post_equality_era_the_same_sex_marriage_and_gender_identity_laws_in_spain)
43. SWEDEN
External Documents
1972
All Documents
1972
Marriage
1972
ALTERNATIVE CODING
1972
Notes: Date provided by the reports and the expert.
Summary: Date is provided by the ILGA World Wrap Up Survey, 2006.
§1 of the 1972 Law About Gender Confirmation says:
“1 §. He who since early youth experience that he belongs to another sex than the one that is stated in the General Ledger,
and for a considerate time has appeared as this (second) gender,
and may be expected to live in this (second) gender,
can, after application, have it confirmed that he belongs to the second sex, (…)”
[this is a translated version (http://www.shb-info.org/sitebuildercontent/sitebuilderfiles/swedish1972law.pdf), the original can be found here: https://lagen.nu/1972:119
Mr. Hans Ytterberg:
However, before 1972 there were no statutory rules on how and under what circumstances entries or registrations of the sex of a person in the Civil Registry could be changed. Thus the
handling of these (presumably at the time very rare) issues was not clearly regulated in statutory law, which in the late 60s started to be considered as a problem, not least from a legal
certainty perspective.
117
So, on 1 July 1972 the Determination of Sexual Identity in Certain Cases Act (1972:119) ["Lag om fastställande av könstillhörighet i vissa fall"] entered into force (Government Bill with
background and explanatory memorandum in prop. (Gov. Bill) 1972:6, SoU (Parliament Standing Committee on Social Issues Report) no. 2, rskr (memo from Parliament to the Government on
the decision taken by Parliament on the issue in question) no. 88.
Under this Act a transsexual person has a right under certain circumstances to have his or her legal sex altered. Once that has been done in the Civil Registry, the transsexual person would be
free to marry, as long as the future spouse was of the opposite sex compared to his or her "new" officially registered sex. As of 1 May 2009 he or she is also free to marry some one of the
same sex.
Eriksson, Maja K. et al., Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation – Sweden, at page 31
This law is criticized by many, but on grounds that are not relevant for the present inquiry, such as requirement of sterilization and divorce. There are however, limitations on the right to
choose a name, as can be seen in the FRA report:
In Sweden the right to a name is governed by the Names Act of 1982 (namnlagen SFS 1982:670) with the latest amendments as of 2003 and it shall be registered at the national registration
authority - the Swedish Tax Agency (skatteverket).43 The legislation contains a provision (Sec 34) aimed at preventing the adoption of inappropriate forenames. In other words, approval shall
be withheld when a name is considered offensive or it might be expected to cause embarrassment to the bearer or when a name for some other reasons is manifestly unsuitable as a
forename. This provision has been interpreted that a man may not have a woman’s name and vice versa. On the other hand, this would be no obstacle where the new sex of a person has
been legally recognised. However, the requirement that the first name corresponds to the person’s sex in order to register a change of a name has been strongly criticised by the Swedish
federation for Lesbian, Gay, Bisexual and Transgender Rights (RFSL) as being out-of-date and that one should be able to choose what ever name.45 Of some relevance to the issue is that the
Swedish Patent and Registration Office (Patent- och Registreringsverket) has produced a list of gender neutral names which may be useful in situations when change of a name is desired.
“Nevertheless, the 1972 Act, which was the first legislation in the world of its kind, has been heavily criticised by Swedish NGO:s as well as within academia as being old-fashioned and even
generating discriminatory attitudes and practice. This law was promulgated during a time period in Swedish history when the eugenics debate still was vibrant. Transsexuality and sex identity
disturbance is at present classified as a mental illness. NGO such as Patientföreningen Benjamin has pointed out that according to the transsexual persons themselves transsexuality is a
biological variation and the medical/health care should be based on neurological basis instead. Mention should be made here of the fact that homosexuality is since 1979 no longer classified
as a disease by the National Board of Health and Welfare.” (available at http://www.pedz.uni-mannheim.de/daten/edz-b/ebr/08/FRA-hdgso-NR_SE.pdf)
MARRIAGE
Expert, Mr. Hans Ytterberg
As of 1 May 2009 the Swedish Marriage Code is gender neutral. It thus stipulates (Chapter 1 Section 1) that "[t]hose two who marry each other become spouses".
Chapter 2 of the Code deals with the impediments to marriage (being under age, close blood relations, etc.). Here there is no reference to sex/gender.
Before 1 May 2009 the Swedish marriage legislation treated the issue of sex/gender of the spouses as an indirect matter of definition of the legal concept of marriage itself. Thus there was no
reference to gender/sex in Chapter 2 on impediments to marriage even before 1 May 2009, but Chapter 1 Section 1 stated that "[m]arriage is contracted between a man and a woman".
118
So, before 1 May 2009, and that still holds true, the question of whether a transsexual person could marry a specific person or not depended on whether the transsexual person was to be
considered as a man or as a woman from a legal point of view. To answer that question, the authorities would look to the Civil Registry, containing registration of int. al. births, deaths and civil
status. Here the sex of each individual is also registered, normally at the time of birth and any one who wants to marry has to present an excerpt from the Civil Registry to prove absence of
any impediments to marriage.
Bradley, David, Radical Principles and the Legal Institution of Marriage: Domestic Relations Law and Social Democracy in Sweden, 4 International Journal of Law and the Family 154 (1990)
1972: Sweden introduced a law on transsexualism in 1972. This legislation was comprehensive, and also relatively liberal. It gave transsexuals the right to marry in their new, re-assigned sex
and, in so doing, freed the legal institution of marriage from any requirement that there should be actual or potential capacity to procreate.
Liberty, Annex 6 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
At least since 1998: (available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-6.pdf)
44. SWITZERLAND
External Documents
1961
All Documents
1961
Marriage
1961
ALTERNATIVE CODING
No
Note: We have a date for the first major decision on the issue of changing documents, but no way no way of confirming that from that decision on the right was consistently recognized. Most
of the sources confirm that the country recognizes the right. Only one source provides a date, 1931 for the first decision recognizing gender change in official documents and 1961 for the most
important case.
Alternative Coding: The Commissioner considered Switzerland as a country that has legislation on the right, but also acknowledged that this is true only for some cantos. Because there are
parts of the country without legislation, the coding here deviates from his classification.
SOURCES ON DOCUMENTS
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a state that has adopted legislation on the legal recognition of the preferred gender (only in some cantons).
(http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 85-86)
119
Updated FRA Report, 2010
Change of name granted simply upon application accompanied by a confi rmation by the medical facility (see table on p. 19)
Liberty Survey (1998):
- There is no special legislation in the Slovak Republic. However, the administration will allow a transsexual to change their name and birth certificate if a doctor can issue a letter stating that
Gender Reassignment Surgery has been successfully completed. The surgery is legally available in the Slovak Republic.
Swatschek, S (2005) Report on ‘Transsexuality and International Private Law’; (Title of the legal opinion given by the Max-Planck-Institut in the proceedings of AZ.I BvL 1/04 of the
Constitutional Court in Germany), Brussels: ILGA-Europe
“No specific legislation, but case law dating back (in favour of gender recognition) to 1931. First major decision concerning gender recognition dates from 27.06.1961.” [Judgement of the
Basel-City Civil Court of 27.06.1961, BGE 119 II 264;269., Schweizerisches Zentralbaltt für Staats-und Gemeindeverwaltung (ZBl.) 62/1961, p.418 ff.]
Liberty Written Comments in the case of Goodwin v. UK (2002); Commission internationale de l’état civil, Transsexualism in Europe Volume 1, 16 (2000).
Confirm the right exists.
45. TURKEY
External Documents
1988
All Documents
1988
Turkey
1988
ALTERNATIVE CODING
1988
Note: A law granting the right to change documents was passed in 1988.
Alternative Coding: Law of 12 May 1988.
SOURCES ON DOCUMENTS
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a state that has adopted legislation on the legal recognition of the preferred gender. (http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 85-86)
Delvaux, Legal Consequences of Sex Reassignment in Comparative Law
120
“Turkey is the fifth and, for the moment at least, last member country of the Council of Europe to legislate on the subject of transsexualism. Having adopted the Swiss Civil Code in 1926,
Turkey could have brought itself into line with the Swiss transsexualism regulations and accepted changes of sex in birth certificates basing itself on Article 1 Paragraph 2 of the Civil Code, as
will be seen below in the case of Switzerland. Furthermore, Turkish law on civil status contains an Article 46, Paragraph 1., which regulates actions for changes in civil status records relative to
age, forenames, the name and other items, among which some of the case law has intended the inclusion of sex. This was the case of the cabaret singer Bülent Ersoy who in 1981 alleged a
change of sex following medical and surgical interventions, but whose application to have the change documented was rejected by the Turkish Supreme Court after a long procedure and
provoked the intervention of the Turkish legislature. In record time – February 1988 to May 1988 – the Turkish Parliamente, at the request of the Ministry of Justice, drafted and passed the
Law of 12 May 1988, Article 2 of which provides:
‘The following paragraph is added to Article 29 of the Turkish Civil Code No. 743:
If after birth there is a change of sex, the necessary alteration will be made in the civil status register provided the change of sex has been confirmed by the attestation of at least one
medical commission. If the person concerned is married, the spouse must be involved in the judicial proceedings and it is for the court to decide who should have custody of any
children of the couple; the marriage is dissolved with effect from the day of the ruling on the change of sex is handed down.’”
Liberty Survey (1998):
- Special legislation was passed in 1988.
- According to the expert from Turkey of the Committee of Experts on Family Law the new wording of Article 29 of the Civil Code, amended by Law No 3444 of 4 May 1988, stipulates that a
person who has any sexual conversion which occurs after his/her birth, may request the correction of his/her civil status record from the court, provided that the sexual conversion be proved
by a medical report.
Article 29 of the Civil Code:
All the necessary changes shall be made in the civil status of the transsexual in case of any sexual conversion which occurs after birth provided it is proved by a medical report. In all cases, for
the correction of these records, action is brought against the spouse if the transsexual person is married. The same court shall indicate in its judgment to whom custody of the children shall be
given. The marriage is automatically dissolved on the civil status record.
In the framework of the above-mentioned provisions of Article 29:
After the courts decree, the changes brought about are to be entered in the transsexual’s civil status records by adding such details to the original record so as to update the data concerning
sex on the birth certificate and identity papers, and by authorising a subsequent change of forename.
- The underlying story behind the change of law on transsexuality in Turkey is quite unique: One of the most popular singers in Turkey with a cult following, Bulent Ersoy, underwent sexual
reassignment in 1981 and made a comeback one day as a female singer. This created a conflict with the authorities who refused to accept the sex change and alter he birth certificate. As a
highly visible protest, the singer refused to sing any longer unless the laws were changed. There was public anger at this and the Ministry of Justice succeeded to draft and pass a piece of
121
legislation in a record time of four months enabling the singer - and all other transsexuals who had undergone gender reassignment surgery to change their names and birth certificates. The
law in Turkey is very short and subject to wide interpretation by local judges.
Transgender Europe, Country Survey: Civil Status
“You bring your judge decision to birth registration office and other public office and your identity informations change.”
MARRIAGE
Liberty, Annex 6 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
Yes# (available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-6.pdf)
46. UKRAINE
External Documents
2007
All Documents
2007
Marriage
2007
ALTERNATIVE CODING
2007
Note: We have the date when a commission was formed to study the issue of transsexuals in Ukraine, and we have the date when the Ministry of Justice authorized changes to documents.
However, the Commissioner’s report indicates that Ukraine does not adequately implement these laws. Is the implementation of the law relevant to the coding?
Alternative Coding: the special commission that implemented the changes was put together in 1994. The Commissioner lists Ukraine as a country in which there is legislation guaranteeing the
right to change documents, but he also highlights the law’s poor implementation. The individual report mentions a 2007 law.
SOURCES ON DOCUMENTS
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, (2011), p. 86
Ukraine is listed as a state that has adopted legislation on the legal recognition of the preferred gender. However, the report also says that “In other instances laws are not implemented – in
Ukraine, NGOs report that the medical board in charge of deciding on applications from transgender persons did not meet once in the period 2007-2008 despite its obligation to meet every
three months.” (http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf)
Individual Report on Ukraine, p. 33-34:
122
Par. 5 of the Article 12 (?) states that only after surgical operation can the patient receive a medical certificate of sex change, which serves as a ground for amending the entry in the person’s
official registry of birth and issuing a new birth certificate. This requirement (i.e. change of the person’s gender marker in the birth certificate and registry only after the gender reassignment
surgery) is also reflected in par. 2 of the Art. 51 of the Fundamentals of the Ukrainian Law Concerning Health Care. The changes into the birth certificate and the register are made according to
the rules and procedures set forth in the Art. 2.1 of Положення про порядок зміни, доповнення, поновлення та анулювання актових записів цивільного стану № 86/5, 26 September
2002 (Statute concerning rules and procedures of changing, supplementing, renewing and repealing civil status registry entries No. 86/5, 26 September 2002) of the Ministry of Justice of
Ukraine. Subsequent changes into the national passport, which also contains a section for the citizen’s sex marker, are made on the grounds of changes in the birth certificate according to
Arts. 16-17 Положення про паспорт громадянина України № 2503-12, 26 June 1992 (Passport of the Citizen of Ukraine Act No. 2503-12, 26 June 1992).
P. 39
The Ukrainian law governing the change of name sets no explicit limitations for transgender people, pre-op or post-op. Art.915, 11.07.2007) read a person’s name cannot be changed if: 1) the
applicant is under investigation, administrative supervision or restrictive court order; 2) the applicant has not been acquitted of a conviction;3) there is an official address from foreign law
enforcement agencies concerning an ongoing investigation against the applicant; 4) the applicant has provided incorrect information. The law does not contain any requirements in regard to
the gender appropriateness of the name chose by the applicant. Thus far the analysis shows that the main legal problem of transgender persons in Ukraine is that the law does not recognize
their right to have their gender marker changed in the in the birth registry, birth certificate and passport without invasive genital (or other) reassignment surgery. It also does not provide for
the possibility that endocrine correction can be conducted without surgical change (correction) of sex. Under these conditions the requirement that the gender reassignment surgery should
be conducted no earlier than a year after diagnosing the person’s transsexuality and issuing to him/her an official approval for gender reassignment treatment puts an undue burden on
transgender persons who have to live and adapt in the society when their physical appearance may no longer be in line with their legal sex after the start of corrective hormonal therapy that
precedes surgery. (http://www.coe.int/t/Commissioner/Source/LGBT/UkraineLegal_E.pdf)
Witten et al. Trangender and Transsexuality,
In 1994, a special commission addressing questions of transsexuality was organized within the Ukrainian Ministry of Public Health. This commission decided to legalize transsexuality. As a
result of this new legalization, a number of Ukrainians decided to undergo sex reassignment. According to the rules of the commission, patients who wish to change their gender must be
observed by a sexologist in an outpatient setting for a period of a year. Additionally, a psychiatrist in a hospital must see them for a period of at least a month. After these specialists diagnose
the individual as being transsexual, he or she is allowed to have gender reassignment surgery upon submitting an application for the surgery to the commission. Once the commission has
given a positive decision, it is also possible for the gender of the individual to be changed on his or her passport. (p. 223-224)
Liberty Survey (1998):
- In the Ukraine once gender reassignment surgery has occurred an individual may change all of his/her documents which state sex and name to a new gender and set of names / patronymic /
surnames. The procedure for this is as follows: the individual gives the authorities a “resolution” from the medical commission along with a petition, the original birth certificate and a small
payment. All this is done at the registry office of your place of current living (as opposed to place of birth). The registry office then send this information to the registry office of the applicant’s
place of birth.
- At this stage the registrar crosses out the old name, patronymic and surname in the book of registration of births, writes in the new details, makes a new birth certificate and sends it to the
registry office that originally dealt with the case. The applicant is then given the new birth certificate and a certificate of change of name / patronymic / surname. The applicant may then
return his/her passport (with another small payment) to the local Ministry of Internal Affairs in return for which a new passport based on the new birth certificate will be issued. From that
point onwards an individual may change all other official documents. The respondent to this questionnaire had never heard of anybody being refused a change of document.
- The Ukrainian Code on Family and Marriage (June 25th, 1996) foresees that, as in the former USSR, each person will have only one name and obligatory patronymic.
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- Gender reassignment is treated as a private and secret matter in the Ukraine. The new birth certificate of a transgendered person will be no different to that of a pre-op transsexual apart
from the fact that it will convey the correct gender.
- Any non-primary birth certificate will have duplicate stamp marks on them, distinguishing them from other birth certificates. However, this will occur for many reasons, mainly due to the loss
of the original or after adoption (when in the Ukraine the adoptive parents will then be place on the birth certificate).
- Birth certificates in the former USSR did not have a column for “sex”, but had in particular a patronymic column which in the case of Russian/ Ukrainian language indicates a specific gender,
even if the name and surname were unisex.
- USSR passports did not indicate “sex”, but new Ukraine ones do. For all documents that have been altered the old name and sex are crossed out but remain visible. However, access to these
documents is limited and all extracts and copies are issued in the new gender and name only. Most Russian surnames are not unisex, neither are the first names. However, many surnames are
not Russian.
- In March 1996 the Ukrainian Ministry of Health issued an order concerning the medical treatment of persons who require a change of sex.
- The Ministry of Justice of Ukraine gave instructions to all registry offices in Ukraine to authorise the change of names of transsexuals only after reassignment surgery was completed.
Documents are crucial in the Ukraine; it is the former USSR and totalitarian habits survive. Surgery will only be completed after at least one year of full psychological and social adaptation in
the desired gender
Trans Gender Europe (2005): steps in Ukraine
Address to corresponding state authorities.
If you want to have a legal name clearly showing the sex you must have the correspondent legal sex status what is connected with your body. So, it is possible after the surgery. You address to
the official state authorities for changing your legal sex and if it is OK you change your legal name without problems. Naturally, the surgery must be preceded by psychotherapeutic treatments
during some term. But in Ukrainian and Russian there are some first and family names that are 'unisex'. The patronimes are more problematic because they always show one of two sexes, but
they are as a rule used in Ukrainian only in legal documents
Ember, Carol R. & Ember, Melvin, Encyclopedia of sex and gender: men and women in the world’s cultures vol. 1, 224 (2003)
In 1994, a special commission addressing questions of transsexuality was organized within the Ukrainian Ministry of Public Health. This commission decided to legalize transsexuality … After
these specialist diagnose the individual as being transsexual, he or she is allowed to have gender reassignment surgery upon submitting an application for the surgery to the commission. Once
the commission has given a positive decision, it is also possible for the gender of the individual to be changed on his or her passport.
SOURCES ON MARRIAGE
Liberty, Annex 6 to the Written Comments to the ECHR in the case of Goodwin v. UK (2002)
At least since 1998: (available at http://www.liberty-human-rights.org.uk/publications/pdfs/goodwin-annex-6.pdf)
Council of Europe, European Committee on Legal Co-Operation (CDCJ), Comparative Study on Partnership Regulation in the Council of Europe's Member States with a View to Identifying
Possible Measures to Avoid Discrimination on Grounds of Sexual Orientation or Gender Identity (prepared by the Danish Institute for Human Rights (DIHR), 2009
Yes#: Transsexual persons enjoy the right to marry a person of the opposite sex of the transsexual person's acquired gender.
124
47. UNITED KINGDOM
External Documents
(1970)
All Documents
2004
Marriage
2004
ALTERNATIVE CODING
2004
Note: The case of the UK is simpler because we have information from the ECtHR decision. It is clear that changes to certain documents were possible before 2004. We know from Cossey v.
the UK that documents could be changed as early as 1976.
Alternative coding: 2004 Gender Recognition Act.
SOURCES ON DOCUMENTS
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Listed as a state that has adopted legislation on the legal recognition of the preferred gender.
(http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 85-86)
Cossey v. the UK
In 1976 the applicant was issued with a United Kingdom passport as a female (see paragraphs 16-17 below). From about 1979 to 1986 she was a successful fashion model, featuring regularly
in newspapers, magazines and advertisements. (paragraph 11,
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=cossey%20|%20v.%20|%20The%20|%20United%20|%20Kingdom&sessionid=67016312&skin=hud
oc-en)
Liberty Survey (1998):
- As expounded in the case of Sheffield and Horsham v. UK, although the operation is legally performed in hospitals in the United Kingdom, and although the government are prepared for the
National Health Service to pay for such treatment, a change of sex is not legally recognised and birth certificates may not be amended. A transsexual is treated in law where the law treats men
and women differently (e.g. the retirement age remains the same). There is no protection to keep confidential a former gender.
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- Passport, driving license, national insurance documents may be issued in the new name and gender, but the primary source of an individual’s identity - the birth certificate - cannot be
reissued.
- There is access to psychological, hormonal and surgical treatment for Gender Dysphoria in the UK. As previously mentioned, Gender Reassignment Surgery is covered by the National Health
Service, although this usually does not cover electrolysis for removal of male growth of hair and moreover there are long waiting lists with the result that many transsexuals use the private
sector instead of the National Health Service.
- In the United Kingdom, the Employment Service does not require clients to state whether they are transsexual. However, in Sheffield and Horsham v. UKthe Commission were told earlier this
year that “they [the Employment Service] will normally respect the wishes of the client as to the sex by which he or she is to be known and treated”. However, there is no obligation on them
to do so.
-In the employment discrimination case of P v. S and Cornwall County Council (1996) the Advocate General’s recommendation to the European Court of Justice was that the European Council
Directive on the principle of Equal Treatment for men and women should be held to cover transsexuals. The decision, confirmed by the court means that throughout Europe it is now unlawful
to discriminate against a transsexual, whether female to male or male to female, on the grounds that they are going to or have had gender reassignment. The direction given by the Advocate
General is that:
Articles 2(1) and 5(1) of Council Directive 76/207/EEC must be interpreted as precluding the dismissal of a transsexual on account of a change of sex.
- According to Mr D C Bradley of the London School of Economics speaking at the 23rd Colloquy on European Law in Amsterdam in 1993, the five main principles underlying current UK policy
on transsexuals are as follows:
1.
A transsexual has no right to amend his/her birth certificate and therefore is denied their ultimate and true identity;
2.
A transsexual has no right to privacy in the sense that a transsexual cannot conceal earlier history;
3.
There are no obligations on those entering legal or any other relations with a transsexual to compel them to recognise the confirmed/reassigned identity;
4.
Transsexuals have no right to marry (and miss out on other basic rights);
5.
There is an absence of specific legal controls on transsexuals with regards surgery and other forms of medical intervention.
- Legislation has tried to be passed in the UK. Alex Carlile MP’s Gender Identity (Registration and Civil Status) Bill, received its second reading on the 2nd February 1996. It provided for the
issue of a recognition certificate for transsexuals who have undergone gender reassignment surgery which will allow for the issue of a new certificate and thereby allow marriage between a
transsexual and non-transsexual. However, nothing came of the Bill.
Trans Gender Europe (2005): steps in Great Britain (website no longer available)
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Initial documentary changes require a legal change of name and a doctor's letter confirming the transition into the acquired gender. Birth certificate change requires 2 years living
permanently in the acquired gender, a medical confirmation of having gender dysphoria and a successful application to the Gender Recognition Panel. All except birth certificate can be
changed at point on transition. After 2 years and successful application to the Gender Recognition Panel the birth certificate can be changed. Court records which are not 'spent' i.e. whatever
time period a court judgement is still live e.g. 7 years for a serious criminal offence, 15 years for a malicious fraudulent bankruptcy.
The Gender Recognition Act 2004 which enables full legal recognition.
Gender Recognition Act, 2004 - Allows transgender persons to change their sex entry marks in registers of birth, in official documents and in identification papers and to change the first
forename to a gender appropriate one without genital surgery as a precondition. (Council of Europe, Steering Committee for Human Rights (CDDH), Committee of Experts on Discrimination on
Grounds of Sexual Orientation and Gender Identity (DH-LGBT), Comments and Examples of Good Practices Sent by Experts on the Draft Recommendation, 2009).
ILGA World Wrap Up Survey
Also lists 2004 as the date.
SOURCES ON MARRIAGE
Gender Recognition Act 2004, Schedule 4,
available at http://www.opsi.gov.uk/acts/acts2004/ukpga_20040007_en_5#sch4
European Parliament Policy Department Citizen’s Rights and Constitutional Affairs, Transgender Persons’ Rights in the EU Member States 9 (2010)
Confirmation: However, in 2002 the Court overruled the previous case-law and stated that "post-operative transsexuals have not been deprived of the right to merry as, according to law, they
remain able to marry a person of their former opposite sex".In light of this case-law, the United Kingdom adopted the Gender Recognition Act, which came into force in April 2005. (available
at http://ilga-europe.org/home/issues/transgender/external_resources_on_transgender_issues)
Hate Speech
Sufficient Information
1. ALBANIA – No
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Note: Albania only has a catch all provision, with no precedent of applying it to homophobic hate speech. We have no further evidence for the country.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
2. ANDORRA – 2005
Note: The CoE report says Andorra explicitly prohibits homophobic hate speech, but I could not find the law that introduced this protection or the year in which it was passed. Antidiscrimination laws including sexual orientation as a protected category were passed in 2005. There is no other evidence for Andorra.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Individual Report on Andorra, p. 8:
Hate crime based on sexual orientation was introduced in the Penal Code in 2005,6 after a scandalous case of murder. Article 30 considers an aggravating reason to commit a crime for racism,
xenophobic motives or relative to the ideology, religion, nationality, ethnic origin, sex, sexual orientation, disease or physical or psychic disability of the victim.
(http://www.coe.int/t/Commissioner/Source/LGBT/AndorraLegal_E.pdf)
3. ARMENIA – No
Note: Armenia only has a catch all provision, with no precedent of applying it to homophobic hate speech. We have no evidence of precedents applying the provision to homophobic hate
speech.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Forced Out: LGBT People in Armenia, Study by ILGA/COC (February 2009) p. 59
“No hate speech law, unless accompanied by the persecution of groups or organizations as prohibited by international law.”
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“Many international human rights bodies have noted the ill-treatment of homosexuals in Armenian institutions, particularly in the army and in prisons. Information gathered on the ILGAEurope fact-finding mission to Armenia highlighted the extent to which institutional homophobia was both expected as ‘the norm’ and directly experienced by those interviewed. The depth of
distaste for LGBT persons by employees of state organisations, and their consequent maltreatment by these employees, is quite shocking. It reveals both a disregard by the authorities for
human rights, as well as the extent to which they are willing to countenance human rights violations.”
“In principle, LGBT people have the same right to legal protection under the Constitution as all Armenian citizens. However, in practice LGBT people do not for the most part make use of this
protection, as there is no guarantee that their rights will be upheld either in courts or in police stations. Numerous human rights reports and testimonies given to ILGA-Europe bear witness to
the deeply negative, discriminatory attitudes towards homosexuals in law-enforcement bodies. They show that some LGBT people (mostly gay men and MtF transgender persons) who have
been brought to police departments have been subject to torture, arbitrary detention and blackmail. The Association of Gay and Lesbian Armenians in France (AGLA)92 has also reported that
it received numerous e-mail messages, since its opening in 2001, from homosexuals who complained about police violence against them.” (http://ilgaeurope.org/home/publications/reports_and_other_materials)
ILGA-Europe, Rainbow Europe Map and Index, 2011
Armenia is one of the Red countries, in which “gross violations of human rights and discrimination are taking place.” (available at http://www.ilgaeurope.org/home/publications/reports_and_other_materials/rainbow_map_and_index_2011)
4. AUSTRIA – No
Note: Austria does not include sexual orientation as a protected category. It also does not have a general ‘other groups’ provision.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not included as a protected ground and there is no general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Incitement (§283, (1) and (2) StGB)
(1) Wer öffentlich auf eine Weise, die geeignet ist, die öffentliche Ordnung zu gefährden, zu einer feindseligen Handlung gegen eine im Inland bestehende Kirche oder Religionsgesellschaft
oder gegen eine durch ihre Zugehörigkeit zu einer solchen Kirche oder Religionsgesellschaft, zu einer Rasse, zu einem Volk, einem Volksstamm oder einem Staat bestimmte Gruppe auffordert
oder aufreizt, ist mit Freiheitsstrafe bis zu zwei Jahren zu bestrafen.
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(2) Ebenso ist zu bestrafen, wer öffentlich gegen eine der im Abs. 1 bezeichneten Gruppen hetzt oder sie in einer die Menschenwürde verletzenden Weise beschimpft oder verächtlich zu
machen sucht.10
Greenwood Encyclopedia of LGBT Issues Worldwide (2010), p. 29
“There is no protection whatsoever against hate speech or incitement to hatred on the grounds of sexual orientation or gender identity. There are no legal provisions establishing aggravated
circumstances in the case of crimes or violence motivated by homophobia or transphobia.”
Nowak, Manfred, Updated Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity (2010)
“Therefore, homophobic hate speech may qualify as libel (sec 115 of the Criminal Code) but is not covered by incitement to hatred (sec 283 of the criminal code). Moreover, homophobic hate
speech is covered by the ETA as Belästigung[harassment] in employment. ”
“In December 2009, the Ministry of Justice sent out a draft amendment of the Criminal Code which proposes to include sexual orientation into the protection from incitement to hatred (sec
283 Criminal Code)”
[This source also mentions a libel case filed by a prominent LGBT rights activist against a writer in a right-wing magazine. The defendant was found not guilty because the court ruled that the
author was a public figure and could expect to be subjected to criticism.] (pages 23-24) (available at http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_AT.pdf)
Nowak, Manfred, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation – Austria (February 2008)
Hate speech and hate crimes are not commonly used terms in Austrian (criminal) law. Special provisions in criminal law on homophobic crimes do not exist, and statistics on homophobic
crimes are not available. Nevertheless, a number of related terms can be found in the Strafgesetzbuch [Criminal Code]. Section 283 of the Criminal Code prohibits incitement to hate directed
against churches or persons on the grounds of their religion, race, ethnic group or state of origin. LGBT persons are not protected. (http://www.fra.europa.eu/fraWebsite/attachments/FRAhdgso-NR_AT.pdf)
5. AZERBAIJAN – No
Note: Azerbaijan does not include sexual orientation as a protected category in hate speech laws or court decisions.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
10
(1) Whoever publicly in a manner that is likely to endanger public order, to a hostile act against a domestic church or religious society or against by their affiliation to such a church or religious community, a race, a people, a tribe or a State
requires certain group or incites, is punished with imprisonment up to two years.
(2) The same shall be punished, who publicly incites against one of the groups referred to in section 1 or in a manner violating human dignity insulted or disparage investigated.
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“In Azerbaijan during 2009 police raided bars which LGBT persons visit and arrested almost 50 people. Police reportedly held the individuals and threatened to expose their sexual orientation
publicly unless they paid a bribe. A film documentary from Azerbaijan in which several people testify about their experiences also points to such incidents of blackmail.” (available at p. 55)
“UN treaty bodies and UN special rapporteurs have, in relation to Azerbaijan, the Russian Federation and Turkey, urged these states to end acts of violence and harassment by the police
against LGBT persons.” (p. 56)
ILGA-Europe/COC, Forced Out: LGBT People in Azerbaijan (August 2007)
“(…) there are no such concepts as hate crime and hate speech in the criminal law of Azerbaijan … A ‘mere’ violant hate incident, hate crime or hate speech is not sufficient.” (p. 29. http://ilgaeurope.org/home/publications/reports_and_other_materials/(offset)/15)
ILGA-Europe, Rainbow Europe Map and Index, 2011
Azerbaijan is one of the Red countries, in which “gross violations of human rights and discrimination are taking place.” (available at http://www.ilgaeurope.org/home/publications/reports_and_other_materials/rainbow_map_and_index_2011)
6. BELGIUM – 2007
Note: Belgium explicitly includes sexual orientation as a protected category. The date of the anti-discrimination act that prohibited homophobic hate speech is confirmed by more than one
source.
Report by ILGA: State Sponsored Homophobia (2010) Laws Against Homophobic Hate Crime and Hate Speech in Europe
Article 22 of the Anti-discrimination Act: makes it a crime to publicly incite to discrimination, hatred or violence against a person on the ground of sexual orientation & prohibits incitement to
discrimination, hatred, violence or segregation against a group. (available at www.ilga-europe.org)
Lemmens, Paul, et al., Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation – Belgium (March 2008)
General Anti-discrimination Federal Act: The only provision specifically covering ‘hate speech’ on the basis of sexual orientation in the federal legislation is the prohibition of ‘incitement to
hatred, discrimination and violence’.120 Article 22, 1o and 2o of the antidiscrimination Act (2007) makes it a crime, punishable “by imprisonment of one month to one year and with a fine of
50 euros to 1000 euros”, to publicly incite to discrimination, hatred or violence against a person on the basis of one of the protected criteria. Article 22, 3o and 4o prohibits incitement to
discrimination, hatred, violence or segregation against a group, a community or its members on the same grounds. (http://www.fra.europa.eu/fraWebsite/attachments/FRA-hdgsoNR_BE.pdf)
The updated version of this report does not mention any changes to the anti-discrimination law or its interpretation. (available at p. 70,
http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_BE.pdf)
131
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
ILGA, State-Sponsored Homophobia (2011)
Confirms 2007 as the date.
7. BOSNIA – No
Note: According to the Council of Europe report, Bosnia does not explicitly include nor exclude sexual orientation as a protected category. Moreover, there is evidence of a hate speech case
that was not adequately prosecuted. Lastly, the 2010 Report on Bosnia and Herzegovina looks at how the 2008 Law Against Discrimination does not adequately protect the LGB population
from hate speech.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
“During the research for this report numerous examples of often strong hate expressions were identified in Council of Europe member states. (…) In Bosnia and Herzegovina, a YouTube clip
was posted representing a direct death threat to one of the organisers of the Queer Sarajevo Festival in 2008, depicting her being beheaded. The latter situation led the Special Rapporteur on
the Situation of Human Rights Defenders, together with the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, to send a communication
to the Bosnian authorities.” (at p. 58) [NOTE: according to the latter Rapporteur’s annual 2009 report11, he was thankful to the Bosnian government for its response on a separate urgent
appeal, but regretful of the government’s lack of response on the internet attacks to organizers of the Sarajevo Queer Festival.]
Commissioner for Human Rights, Report Following his Visit to Bosnia and Herzegovina, 2010
44. The Commissioner has noted with satisfaction the introduction into the 2009 Anti-Discrimination Law of a provision that enshrines the principle of equality and non-discrimination on the
grounds of sexual orientation and gender identity.
45. However, he remains concerned at reports indicating a trend of discrimination against LGBT persons. The hate speech against homosexuals expressed by certain political figures during the
preparations for the First Queer Festival in Sarajevo at the end of September 2008 proved that anti-LGBT sentiments prevail in Bosnia and Herzegovina society. The Commissioner was
particularly concerned about statements of parliamentarians and some religious leaders supporting persons who had physically assaulted participants of the Festival, resulting in eight
11
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/136/52/PDF/G0913652.pdf?OpenElement
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casualties. The targets of the assaults were campaigners for the rights of LGBT persons29 as well as activists engaged in the fight against human trafficking. Investigations into these attacks
have not resulted in any prosecutions. Extreme stereotyping, discrimination and homophobia in the media continue to be of serious concern to the Commissioner.
46. The Commissioner noted with grave concern a statement in July 2009 of the Director of the state-run Sarajevo Student Centre that ‘gay students do not belong in student dormitories in
Sarajevo’ and a similar declaration of the Director of the state-run student dormitory of the University of Mostar. It is of particular concern that government authorities reportedly remained
silent on the issue while civil society representatives and the media protested at what they described as unacceptable hate speech.
47. The Commissioner has been informed that as a result of their political and LGBT-related activism, two nationals of Bosnia and Herzegovina, Svetlana Đurković and Alma Selimovic, felt
obliged to move to the United States where they requested asylum on the ground of their sexual orientation. The Commissioner is deeply concerned that LGBT-related activists and their
organisations are reported to be exposed to constant pressures and threats, aimed at preventing them from performing their work. The Commissioner has been informed that the first official
LGBT organization, Organization Q, discontinued its activities in 2010. (available at
https://wcd.coe.int/wcd/ViewDoc.jsp?id=1766837&Site=CommDH&BackColorInternet=FEC65B&BackColorIntranet=FEC65B&BackColorLogged=FFC679)
Organization Q, Sexual Rights Initiative, Report on Bosnia and Herzegovina, 2010
“Homosexuality is addressed mostly by the media as opposed to schools. Media have been known to use hate speech either directly or indirectly, thus contributing to prejudice and lack of
understanding about LGBTIQ issues and human rights. Surveys show that for more than 50% of the population it is unacceptable to have LGBT individuals as family members, friends,
neighbours or colleagues, while it is acceptable to interpret human rights from the prism of religious laws and not secular laws.”
“Despite the fact that guest, participants, supporters and organizers of the first Queer Sarajevo Festival (see the section on Freedom of Expression below for more details) were verbally and
physically attacked and received death threats, the [2008] Law Against Discrimination does not include prohibition of hate speech on the basis of sexual orientation.”
“Information about discrimination on the grounds of gender, sexual orientation, sexual identity, gender identity and gender expression is not collected or tracked. No single legal case exists
regarding discrimination on the grounds of sexual orientation or sexual/gender identity and expression, although cases have been reported.”
Law on Prohibition of Discrimination
Article 5
…Incitement to discriminate. Every advocacy for national, racial or religious hatred shall represent an incitement to discriminate and shall be forbidden. (available at
http://www.unhcr.org/refworld/pdfid/4d302a9f2.pdf)
Report on Bosnia and Herzegovina: 7th Round of the Universal Periodic Review – February 2010, submitted by Organization Q and the Sexual Rights Initiative
One of the recommendations was to “Amend the Law Against Discrimination to include hate speech on the grounds of gender identity and sexual orientation.”
(http://lib.ohchr.org/HRBodies/UPR/Documents/Session7/BA/JS_UPR_BIH_S07_2010_JointSubmission.pdf)
ILGA-Europe, Submission to the European Commission’s 2010 Progress Report on BiH, May 31, 2010
133
“The Criminal Code of BiH (Aricle 145), the Criminal Code of FBiH (Article 177), the Criminal Code of RS (Article 162), the Criminal Code of Brcko Disrict (Article 174) include sexual orientation
in their anti-discrimination clause”
“A comprehensive anti-discrimination law has been adopted in July 2009. In the parliamentary debates at the House of Representatives on 8 July 2009 and at the House of Peoples on July
2009 amendments have been proposed to exclude sexual orientation from the list of protected grounds in the law. In response to it ILGA-Europe and IGLHRC addressed a joint letter to the
Parliamentary Assembly of BiH urging the parliamentarians to ensure that the law provides protection from sexual orientation and gender identity discrimination. Eventually the law was
adopted and provides protection on a number of grounds including sexual orientation. The implementation of the law is still to be seen.”
ILGA-Europe website
Laws on hate and violence do not refer to sexual orientation or gender identity and do not recognise sexual orientation neither gender identity as aggravating factor. (http://ilgaeurope.org/home/guide/country_by_country/bosnia_herzegovina)
8. BULGARIA – No
Note: This country has a general “other groups” category which could be used to protect LGB persons from hate speech. The two cases we have evidence of did not reach a favorable decision
in the courts, one being denied and the other settled out of court. Therefore, we can assume that Bulgarian courts would not rule sexual orientation to be a protected category.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not included as a protected ground and there is no general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
“During the research for this report numerous examples of often strong hate expressions were identified in Council of Europe member states. (…) A communication was also sent by the
Special Rapporteur to the Bulgarian authorities on 27 June 2008 regarding a Gay Pride Parade scheduled to take place in Sofia the day after, expressing her serious concerns for “speech which
may incite hatred’’.” (pages 57-58)
Kukova, Slavka, Updated Legal study on Homophobia and Discrimination on Grounds of Sexual Orientation, report on Bulgaria (2010)
There is a single case in which homophobic hate speech has been challenged in court, making use of the civil law PADA provisions on harassment and incitement to discrimination. It concerns
extremist homophobic propaganda by a right-wing political party leader and Member of Parliament, Volen Siderov. Mr Siderov was taken to court jointly by LGBT individuals and NGOs
specialising in LGBT rights and general human rights organisations over public statements he had made, demeaning homosexuals in general and calling for their exclusion from the political
process. The claimants in the case alleged that these statements constituted both harassment on sexual orientation grounds and incitement to discrimination on sexual orientation grounds.
The trial court in Sofia dismissed the case on factual grounds, failing to accept that the proof adduced by the claimants was sufficient to establish the facts of the impugned statements. The
court made no pronouncement on the substantive issue, i.e. whether or not such statements constituted illegal hate speech. The failure of the court to deal with the substantive issue on
evidential pretexts is symptomatic of a certain lack of will and firmness to tackle high-profile homophobic statements by a mainstream politician. The court’s refusal to accept as conclusive the
evidence produced by the plaintiffs is hardly defensible, given that the statements were made and recorded in Parliament and on TV broadcasts. The higher court (Sofia City Court) held that
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the homophobic statements do constitute neither harassment, nor incitement to discrimination. Using the argument that there is no comparison between homogenic groups and this is why
the statements do not constitute any form of discrimination the court misinterprets the law. The misinterpretation is in the fact that harassment and incitement to discrimination as provisions
in the law do not contain an element of comparison as the direct and indirect discrimination provisions do. The necessary elements that are to be discussed in the harassment cases are
whether the behaviour in question is unwanted, humiliating the dignity of the gay people/complainants and whether this behaviour creats offensive and threatening environment for them.
These issues are neither taken into account nor discussed by the court. To find evidence or reject the presence of incitement the court should consider whether the statements of the
defendant (politician) influence the audience directly and on purpose to regard gay people in a negative way and whether the politician is in position to influence the audience. The court does
not even mention these issues in its decision. This decision was appealed before the Supreme Cassation Court in October 2009. (http://www.fra.europa.eu/fraWebsite/attachments/LGBT2010_thematic-study_BG.pdf)
[It is relevant to note that Mr. Siderov was also taken to court on grounds of incitement to hatred against Jews, Roma , foreign nationals and others. In this case he was found guilty of
incitement to hatred. An analysis of the judgment can be found here: http://www2.ohchr.org/english/issues/opinion/articles1920_iccpr/docs/ViennaWorkshop/Bulgaria.pdf]
Kukova, Slavka, Legal study on Homophobia and Discrimination on Grounds of Sexual Orientation, report on Bulgaria (2008)
The Criminal Code does not make homophobic hate speech a crime in any way. However, the Bulgarian system does make extensive use of ‘administrative punishments’, including some for
hate speech. Under the PADA the Commission may ex officio find that an utterance constitutes harassment and impose a sanction on the author. In addition, the law makes possible the
institution of proceedings before civil courts in cases of hate speech. see paragaraph below (footnote in the document)
Bulgaria/PADA/Art. 71, para.1 in connection with Art. 5 (in cases of homophobic hate speech) provides for the protection of victims of discrimination who did not file complaint before the
Commission, allowing them to file a complaint before the civil courts. The victims can ask the court: 1. to establish the violation; 2. to enjoin the perpetrator to stop the violation and to restore
the status quo ante and abstain from further violation; 3. to allow for the compensation of damages. (p. 24)
Two cases of court challenges regarding homophobic hate speech:
a) Against a right-wing political party leader and Member of Parliament, Volen Siderov. The court dismissed the case on the grounds that there was insufficient evidence to establish the facts
of the impugned statements, even though they had been made and recorded in Parliament and on TV broadcasts. At the time of the publication, the case was pending appeal.
b) Legal case brought by an NGO (BGO Gemini) as a public interest complaint against the Duma daily newspaper over an article alleged to incite discrimination against LGBT people. The case
was settled. (pages 24-26)
(available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_BG.pdf)
9. CROATIA – 2006
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Note: Croatia explicitly includes sexual orientation as a protected category in its hate speech laws. There are three provisions that could cover Hate Speech. The Council of Europe individual
report indicated that adequate protections against homophobic hate speech only came in 2006.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that has explicitly includes sexual orientation as a protected category.
Individual Report on Croatia, p. 17:
Until year 2006 the Croatian Criminal Code (OG 110/97, 27/98, 50/00,129/00, 51/01, 111/03, 190/03,105/04, 84/05) did not include definition of hate crimes.
Proposal of Lesbian Group Kontra and the Iskorak (supported by the Serbian Democratic Forum, Women’s Network of Croatia and Centre for Peace Studies) to introduce a definition of hate
crimes into Article 89 of the Criminal Code was adopted in 2006 by the Croatian Parliament because of perceived international pressure (while advocating associations always put emphasis on
EU, OSCE) and support from representatives of national minorities in the Parliament. (http://www.coe.int/t/Commissioner/Source/LGBT/CroatiaLegal_E.pdf)
The first provision is Article 151a, introduced through an amendment in 2003. This provision states:
Extolling of Fascist, Nazi and Other Totalitarian States and Ideologies or Promoting of Racism and Xenophobia
Article 151a
(1) Whoever produces, sells, imports or exports through a computer network or in any other way makes available to the public promotional materials glorifying fascist, Nazi and other
totalitarian states, organizations and ideologies which advocate, promote or incite to hatred, discrimination or violence against any individual or group on the basis of race, color, gender,
sexual preference, national or ethnic origin, religion, political or other beliefs, or for such purposes Criminal Code possesses large quantities of these promotional materials, shall be punished
by a fine or by imprisonment not exceeding one year. Article 151a was introduced by an Amendment to the Criminal Code (NN 11/2003 of 15 July 2003). (Criminal Code updated until 2003 is
available at: http://www.vsrh.hr/CustomPages/Static/HRV/Files/Legislation__Criminal-Code.pdf Date provided by Technical Assessment Report on Croatia,
http://www.unodc.org/documents/southeasterneurope//Technical_Assessment_Report_Croatia-2010-06-30_final.pdf)
In 2006, two amendments were made that could also be considered to cover Hate Speech. The first is Article 89, which is primarily directed at hate crimes, but includes expression crimes,
such as threats and offenses against honor and reputation:
Article 89 [introduced in a 2006 amendment12] of the Criminal Code: punishes any criminal act according to the Criminal Code, committed by reasons of hatred towards a person on the basis
of his/her sexual orientation, among other grounds. Criminal offenses include violent behavior, threats, criminal offenses against honor and reputation, destruction and damage to property,
criminal offenses against life and body, and discrimination as such. (Report by ILGA: State Sponsored Homophobia (2010) Laws Against Homophobic Hate Crime and Hate Speech in Europe,
available at www.ilga-europe.org)
The third provision was also introduced in 2006, and prohibits exposing minorities to ridicule. There is no express reference to sexual orientation:
12
http://legislationline.org/documents/action/popup/id/4135
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In addition, the Croatian Criminal Code, in Art. 151 partially covers hate crimes in a prohibition of hate speech that states: “Whoever publicly exposes the Republic of Croatia, its flag, coat of
arms or national anthem, the Croatian people or its ethnic and national groups or minorities living in the Republic of Croatia to ridicule, contempt or severe disdain shall be punished by
imprisonment for three months to three years”. Article 151 was published in Official Gazette No 71/2006 and replaced a previous version of this article.
(http://www.unodc.org/documents/southeasterneurope//Technical_Assessment_Report_Croatia-2010-06-30_final.pdf)
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
ILGA Europe, 2011
A Croatian priest was given a three-month suspended jail sentence for hate speech he had published on his blog about Belgrade's 2010 Gay Pride violence, a court said on Friday, AFP reports.
Franjo Jurcevic, parish priest in Kastav, just near the northern port of Rijeka, was found guilty for inciting to discrimination of gay people and sentenced on one year probation, a Rijeka court
spokeswoman told AFP. The verdict was pronounced in January and it became final as he did not appeal it, Sandra Juranovic said. If the priest does not repeat the criminal act within a year he
would not have to go to jail, she explained. Last October the first Gay Pride parade in Serbia in almost 10 years was marked by violent clashes between police and some 6,000 anti-gay rioters,
who were mainly ultra-nationalists and football fans. The clashes left 150 people injured, mostly police officers. (available at http://ilgaeurope.org/home/guide/country_by_country/croatia/croatian_priest_sentenced_over_anti_gay_remarks)
10. CYPRUS – No
Note: Sexual orientation is not a protected category. There is a general provision which could be extended to cover sexual orientation, but there is no precedent. According to the guidelines,
we code Cyprus as “no”.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Country in which anti-discrimination cases were reported in courts or anti-discrimination bodies. Page. 118.
Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States Part II – The Social Situation (2009)
Not a criminal offense. (http://fra.europa.eu/fraWebsite/attachments/FRA_hdgso_report_Part%202_en.pdf)
Updated Thematic Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation (2010)
Provisions that can be used against homophobic speech (there is still no precedent):
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Articles 51A provides that whoever publicly and in any way “procures the inhabitants to acts of violence against each other or to mutual discord or foments the creation of a spirit of
intolerance is guilty of a misdemeanour and is liable to imprisonment of up to twelve months or to a fine.
Article 105 provides that civil servants (i.e. government employees) may be held guilty for “abuse of power” and may be sentenced to imprisonment of up to two years and/or a fine of up to
CYP£1,500 (Euros 2,563). Abuse of power may well include using one’s position of power to discriminate against persons in the course of their duties, although this is not stated explicitly in
the law.
Article 136 provides that any person who violates the law on purpose, in relation to an act involving the public or part of the public, is guilty of an offence and is liable to up to two years
imprisonment and/or a fine not exceeding £1,500 CYP (approximately Euros 2,563). It can therefore be inferred that an act violating the anti-discrimination provision of the Cypriot
Constitution (article 28) or of the law transposing the Employment Directive (Law N.58(I)/2004) or any other law, may constitute a criminal offence under Section 136 of the Criminal Code if
committed deliberately with a homophobic motive. (p. 21, available at http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_CY.pdf)
ILGA-Europe, Rainbow Europe Map and Index, 2011
Cyprus is one of the Red countries, in which “gross violations of human rights and discrimination are taking place.” (available at http://www.ilgaeurope.org/home/publications/reports_and_other_materials/rainbow_map_and_index_2011)
Thematic Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation (2008)
Hate speech: There is no legislation in Cyprus addressing hate speech against homosexuals or with a homophobic motivation, although some of the more general provisions of the penal code
may safely be interpreted as applying to these cases as well. There is also no case law on the subject either. (p. 4, available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgsoNR_CY.pdf)
Initiative Against Homophobia (website)
Hate speech and hate crime has not been embodied in the penal code and among others LGBT people are not protected against that kind of crime on the basis of their sexual orientation.
(http://en.queercy.org/index.php?option=com_content&view=category&id=6&Itemid=11)
11. CZECH REPUBLIC – No
Note: The Czech Republic has a general “other groups” provision which could include sexual orientation. We have no evidence of homophobic hate speech cases that were brought to courts.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
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SOURCES ON THE CURRENT CRIMINAL CODE
Honuskova, Vera & Sturma, Pavel, Updated Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity, (2010) (p. 24)
“A new Criminal Code was adopted in 2009 (in force since January 1, 2010).”
“The new Criminal Code also contains several relevant provisions. The crimes of incitement to hatred against a group of people or to restrict their rights and freedoms (Sec. 356), attack against
humanity (Sec. 401), apartheid and discrimination against a group of people (Sec. 402), foundation, propagation and support of a movement aimed at oppressing of rights and freedoms of a
person (Sec. 403) and declaration of support of a movement aimed at oppression of rights and freedoms of a person (Sec. 404) all mention a term group of people. So they may be relevant for
LGBT persons.”
“Regarding the crime of Incitement to hatred against a group of people or to restrict their rights and freedoms, the provision stipulates that a person who publicly incites hatred of another
nation, ethnic group, race, religion, class or another group of people or publicly incites the restriction of their rights and freedoms shall be sentenced to a term of imprisonment of up to two
years. The punishment is higher if the crime is committed through use of the press, film, radio or TV broadcasting, a publicly accessible computer network or a similarly effective method or if
the person actively participates in activities of groups, organisations or associations which promote discrimination, violence or racial, ethnic or religious hatred. ” (available at
http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_CZ.pdf)
Google translation of the Czech Criminal Code
§356
Incitement to hatred against a group of people or the restriction of their rights and freedoms
(1) Whoever publicly incites hatred of any nation, race, ethnicity, religion, class or another group of persons or to restrict rights and freedoms members thereof shall be punished with
imprisonment of up for two years.
(2) The same shall be punished, who conspires or scrap to commit an act referred to in paragraph 1
(3) imprisonment of six months to three years The offender shall be punished
a) commits an offense referred to in paragraph 1 of the press, film, Radio, television, publicly accessible computer networks or other similarly effective means, or
b) When the active work of this act, organization or association that reports of discrimination, violence, or racial, ethnic, class, religious or any other hatred.
§403
Establishment, support and promotion of movements aimed to suppress human rights and freedoms
(1) A person who establishes, promotes and supports the movement, which clearly tends to suppress the rights and freedoms humans, or preaches racial, ethnic, national, religious
or class hatred or hatred against another group persons shall be punished by imprisonment for one year up to five years.
(2) imprisonment for three to ten years will offender,
a) commits an offense referred to in paragraph 1 of the press, film, Radio, television, publicly accessible computer network or other similarly effective means,
b) if he commits such an act as a member of an organized group,
c) commits such an offense as a soldier, or
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d) if he commits such an offense under state of emergency or of war.
(3) Preparation of the crime.
(available in Czech at http://www.ilo.org/dyn/natlex/natlex_browse.details?p_lang=en&p_country=CZE&p_classification=01.04&p_origin=COUNTRY&p_sortby=SORTBY_COUNTRY)
SOURCES ON THE PREVIOUS CRIMINAL CODE
Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States Part II – The Social Situation (2009)
Not a criminal offense. (http://fra.europa.eu/fraWebsite/attachments/FRA_hdgso_report_Part%202_en.pdf)
Honuskova, Vera & Sturma, Pavel, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Czech Republic (2008)
There are also other crimes which may be counted as crimes which might have impact on the LGBT community, e.g. the crime of ‘support for and propaganda of movements aimed at
suppressing human rights and freedoms’. This crime punishes a person who supports or propagates a movement which aims to suppress the rights and freedoms of individuals, or which
promotes national, racial, class or religious hatred or hatred of another group (such a person may be sentenced to a term of imprisonment of one to five years; the law stipulates aggravating
circumstances such as perpetration of the crime through use of the press (print), film, radio or TV broadcasting, or some other similarly efficient means; membership of an organised group;
perpetration of such an act during a state of emergency or a state of war). (p. 26, available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_CZ.pdf)
12. DENMARK – 1987
Note: Denmark explicitly included sexual orientation as a protected ground in 1987.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Report by ILGA: State Sponsored Homophobia (2010) Laws Against Homophobic Hate Crime and Hate Speech in Europe
Section 266b of the Criminal Code: any person who, publicly or with the intention of wider dissemination, makes a statement or imparts other information by which a group of people are
threatened, scorned or degraded on account of their race, colour, national or ethnic origin, religion, or sexual orientation shall be liable to a fine or to imprisonment. (available at www.ilgaeurope.org)
Kofod Olsen, Birgitte, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Denmark (2008)
Section 266 b of Straffeloven prohibits the dissemination of statements or other information by which a group of people are threatened, insulted or degraded on account of their race, colour,
national or ethnic origin, religion, or sexual orientation (introduced by Act no. 357 in 1987, according to the legal commentary probably covering transvestites/transsexualism).
140
According to section 266 b (1) of Straffeloven (the Danish Criminal Code) any person who, publicly or with the intention of wider dissemination, makes a statement or imparts other
information by which a group of people are threatened, scorned or degraded on account of their race, colour, national or ethnic origin, religion, or sexual orientation shall be liable to a fine or
to imprisonment for any term not exceeding two years. (available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_DK.pdf)
[No change in the updated version, available at http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_DK.pdf]
Wikipedia
The dutch version of Wikipedia has an article on this part of the Penal Code. It states that sexual orientation was included as a protected category in 1987, but it does not include a source for
this statement. (http://da.wikipedia.org/wiki/Racismeparagraffen)
13. ESTONIA – 2006
Note: Estonia explicitly included sexual orientation as a protected category in 2006.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Report by ILGA: State Sponsored Homophobia (2010) Laws Against Homophobic Hate Crime and Hate Speech in Europe, available at www.ilga-europe.org
Section 151 of the Criminal Code: criminalizes ‘activities which publicly incite to hatred, violence or discrimination on the basis of … sexual orientation … if this results in danger to the life,
health or property of a person.’
Electronic Communications Act, the Information Society Services Act, the Penal Code, Criminal Procedure Code Procedure Code Amendment Act and a
misdemeanor
Sexual orientation and religion were added as protected categories by Law RT I 2006, 31, 234, which was approved in June 2006 and became effective in July of the same year.
(https://www.riigiteataja.ee/akt/1044587)
Updated Legal Study on Homophobia and Discrimination on the Grounds of Sexual Orientation and Gender Identity (2010)
The Penal Code provides the main provisions regarding hate speech. Section 151 of the Code criminalises ‘activities which publicly incite to hatred, violence or discrimination on the basis
of…sexual orientation…if this results in danger to the life, health or property of a person…’ The Ministry of Justice has confirmed that a draft proposal is under preparation to be submitted for
141
consultation in Autumn 2010 with the purpose of making the application of the hate speech provisions in the Penal Code more effective as well as supplementing the regulation of hate crimes
in general.
The Supreme Court has decided what text could be regarded as inciting to social hatred and violence, and interpreted the relevant provision of the Penal Code as follows:
‘§ 151 of the Penal Code is included in division “Offences against equality”. Violation of the right to equality means that in the case of groups that differ on the grounds of ethnic origin, race,
colour, sex, language, origin, religion, political opinion, financial or social status a member of one group (“we”) denies the equality of the members of the other group (“others”). Under § 151
of the Penal Code the elements of the offence do not consist only in the denial of equality of the persons belonging to another group but also in incitement to such denial among other
persons’. (available at http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_EE.pdf)
14. FINLAND – No
Note: There is a general hate speech provision, but no case law for its application to homophobic hate speech.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States Part II – The Social Situation (2009)
“Debasement or incitement of violence against minorities is criminalized, and crimes motivated by racism or homophobia can be punished with more severe sentences. These articles,
however, have apparently never been applied in relation to LGBT individuals.” (http://fra.europa.eu/fraWebsite/attachments/FRA_hdgso_report_Part%202_en.pdf)
Scheinin, Martin & Makkonen, Timo, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Finland (2008)
Third, hate speech may constitute incitement against a population group as defined in chapter 11, section 9 of the Penal Code. Under the said provision “a person who spreads statements or
other information among the public where a certain race, a national, ethnic or religious group or comparable group is threatened, defamed or insulted shall be sentenced for incitement
against a population group to a fine or to imprisonment for at most two years”. Whereas it is not entirely clear which groups are to be considered “comparable” to ethnic or religious groups,
legal literature has supported the interpretation that LGBT groups are protected under this provision. This interpretation is nowadays also supported by the fact that legal protection against
discrimination has explicitly been extended to cover groups distinguished by sexual orientation. Yet, there is no case law, as far as we know, confirming that LGBT-groups are to be
considered to constitute a ‘population group’ for the purposes of the law. (p. 24) (available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_FI.pdf)
Scheinin, Martin & Makkonen, Timo, [Updated] Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Finland (2008)
Adds the following to the end of the paragraph cited in the 2008 version:
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Moreover, a working group established by the Ministry of Justice has proposed that the provision be amended so as to explicitly cover sexual minorities.
(p. 25, available at http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_FI.pdf)
15. FRANCE - 2004
Note: Provisions against homophobic hate speech were added to the Criminal Code with the 2004 anti-discrimination act. The date of the law is December 30, 2004.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
FRA, Homophobia and Discrimination on Grounds of Sexual Orientation – France (2008)
Gaps have been found in the law on the press of 29 July 1881. Homophobic statements could not be punished based on Article 24, paragraph 8, of this law relative to provoking discrimination,
hate or racial hate. This gap in French law had to be repaired. For this reason, by recommendation of the Senate, a law was enacted to complete the existing legislation, particularly the law of
1881. The law in question is law n°2004-1486 which created the High Authority for the Elimination of Discrimination and for Equality (HALDE) (see above). Title III of this law adds
discriminatory statements of a homophobic nature to the list of provocations to discrimination (Article 20 of the law). In addition, it is now possible to punish a person for homophobic libel
or slander (Article 21 of the law). In this case, charges may be brought by the Public Ministry (Article 22 of the law). (available at http://www.fra.europa.eu/fraWebsite/attachments/FRAhdgso-NR_FR.pdf)
[No change in the updated version]
ILGA, State-Sponsored Homophobia (2011)
According to this publication, the date is 2005
Freedom of the Press Act, 1881
Article 24, altered by the 2004 law mentioned above, was also modified by the Gayssot Act, which also criminalizes discrimination. The Article now reads:
Those who, by any means set out in Article 23 have led to discrimination, hatred or violence against a person or group of persons because of their origin or their membership or nonmembership of an ethnic group, nation, race or religion, shall be punished by one year imprisonment and 45,000 euros fine, or one of these penalties .
The penalties provided in the preceding paragraph who, by these means, incite to hatred or violence against a person or group of persons because of their gender, sexual orientation or
disability caused or will have, in respect of the same persons to discrimination under articles 225-2 and 432-7 of the Penal Code.
143
(google translation. Available in French at
http://www.legifrance.gouv.fr/affichTexte.do;jsessionid=BE713FCFA68ABEA2B211FD25EDF4B993.tpdjo06v_1?cidTexte=JORFTEXT000000877119&dateTexte=20110422)
Report by ILGA: State Sponsored Homophobia (2010) Laws Against Homophobic Hate Crime and Hate Speech in Europe
Articles 225-1 & 225-2 of the Criminal Code: criminalizes discrimination on the grounds of sexual orientation. Article 132-77 makes discrimination on the grounds of sexual orientation as
aggravating factor. Article 222-18-1 allows a specific incrimination for a threat based upon real or supposed sexual orientation.
“Several amendments to existing anti-discrimination laws were passed in 2004, punishing the use of homophobic language in public the same way that xenophobic and racist language is
punished.” (available at www.ilga-europe.org)
16. GEORGIA – No
Note: Georgia has a catch-all provision that could include sexual orientation as a protected category, but we have no evidence that this has been applied.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
17. GERMANY – 2004
Note: Germany has a catch-all provision that was first applied to homophobic hate speech in 2004.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States Part II – The Social Situation (2009)
Criminal offense to incite hatred, violence or discrimination on grounds of sexual orientation (http://fra.europa.eu/fraWebsite/attachments/FRA_hdgso_report_Part%202_en.pdf)
Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Germany (2008)
The offence of incitement is defined in article 130 of the Criminal Code, whose para. 1 and 2 are relevant to incitement with a homophobic background. Under para. 1, incitement to hatred or
appeals to violent or wanton measures against parts of the population, as well as attacks on the human dignity of others through abusive language, malicious contempt or vilification is
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punishable with sentences ranging from three months to five years. Additionally, the regulation provides that the act must be conducted in such a manner that it is capable of disturbing the
public peace. All possible public expressions in print, publication or picture that fulfil the characteristic elements named in para.1 are included in the threat of punishment contained in para. 2.
Article 130 of the Criminal Code rests on the historical experience with National Socialism, which among other things, was also enabled by a legal tolerance of incitement propaganda in the
Weimar Republic.
Although the laws lack explicit mention of homophobic background, there have been individual cases that have resulted in convictions. Thus, on 9th January 2004 the Braunschweig
magistrates’ court sentenced a self-described itinerant preacher to three months’ incarceration with a suspended sentence for incitement and defamation. In public squares and pedestrian
zone, the 68-year old had called for the ‘nuclear eradication’ of homosexuals and labeled women wearing trousers ‘whores’. According to the judge’s opinion, the remarks were directed
against human dignity, which places limitations on the right to freedom of speech.
In another case, on 6th January 2007, the Hamburg magistrates’ court fined a 52-year old 4,500 Euros for incitement. The cause was a sign that the convicted man had affixed to the rear
window of his car, reading: ‘Stop animal testing, take the paedophiles, asylum-seekers, gays.’ The judge justified his verdict and the amount of the fine with the observation that such slogans
are discriminating and insulting, and additionally can threaten whole segments of the population.
By contrast, in early 2004 the prosecution office in Cologne discontinued an investigation of Cardinal Joachim Meisner in suspicion of incitement and defamation. The alleged remark that
homosexuals are ‘a poison that the European person [must] sweat out’ had been reported to the authorities by several private persons and the Lesben- und Schwulenverband in Deutschland
[Lesbian and Gay Association in Germany]; the Prosecutor´s Office, after taking statements from Meisner’s secretary and a journalist, who had spread the quote in the newspaper Kölner
Stadt-Anzeiger, concluded that he had not made the remark. The Prosecutor´s Office stated: ‘Meisner spoke generally about homosexuality from the viewpoint of Catholic morals, but not
about homosexuals. Therefore, there were also no remarks made against homosexual persons’. (available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_DE.pdf)
Updated Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Germany (2010)
The Lesben- und Schwulenverband in Deutschland [Lesbian and Gay Association in Germany] for instance initiated 27 procedures in 2008 and 15 procedures in 2009 and pressed charges
under the Criminal Code against various artists who had a history of homophobic music invoking violence against gays and lesbians. These criminal complaints led to concerts being cancelled
by the organisers or being supervised by police with regard to discriminating content. In cases where no conduct punishable under the Criminal Code took place, the public prosecutors office
then dropped the criminal charges. (p. 29 http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_DE.pdf)
18. GREECE – No
Note: Greece’s hate speech provision includes a general “other groups” category. We have no evidence of cases.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
145
Greenwood Encyclopedia of LGBT Issues Worldwide (2010), p. 215
There is no law describing hate crimes and, according to the Greek statistics, no hate crimes are reported.
Hatzopoulos, Vassilis, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Greece (2007)
Hate speech in Greece is regulated exclusively by Law 927/1979 (FEK A 139, 28/06/1979). Those breaking the law are liable to imprisonment up to two years and/or to fines. This law,
however, only incriminates hate speech based on racial origin, nationality and (since a modification introduced in 1984) religion. Sexual orientation does not figure among the grounds on
which hate speech is prohibited and, therefore, no specific protection is offered to LGBTs. (p. 21) (available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_EL.pdf)
[No change in the 2010 update, available at http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_EL.pdf]
19. HUNGARY – No
Note: There is only a general provision that mentions “certain groups of society”. Hungary has no precedent of applying this provision to homophobic hate speech.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Hungary (2008)
The Hungarian legal system does not contain a general prohibition of hate speech. It only prohibits incitement against a community, the most extreme form of hate speech. Article 269 of the
Penal Code73 provides that:
‘A person who in front of a wider public, stirs up hatred against
a) the Hungarian nation or
b) a national, ethnic, racial, religious group or certain groups of the society is guilty of a crime and is liable to imprisonment up to three years.’
In view of the author this piece of legislation in theory protects the LGBT community as a ‘certain group of the society’, since other aspects of Hungarian law consider persons of different
sexual orientation a homogeneous group of society. However there has not been any documented indictments or judgments issued under this article of the Penal Code in relation to the
LGBT community. (available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_HU.pdf)
20. ICELAND – 1996
146
Note: The penal code was amended to include provisions against homophobic hate speech in 1996.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Report by ILGA: State Sponsored Homophobia (2010) Laws Against Homophobic Hate Crime and Hate Speech in Europe
Section 233 of the Criminal Code: states “Anyone who in a ridiculing, slanderous, insulting threatening or any other manner publicly assaults a person or a group of people on the basis of their
nationality, skin colour, race, religion or sexual orientation, shall be fined or jailed for up to 2 years.” (The word “assault” in this context does not refer to physical violence, only to expressions
of hatred.) (available at www.ilga-europe.org)
Amendment to the Penal Code
Sexual orientation was added as a protected category in 1996. (http://www.althingi.is/altext/stjt/1996.135.html)
21. IRELAND – 1989
Note: Incitement to hatred on the basis of sexual orientation was added as a protected category in 1989.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Report by ILGA: State Sponsored Homophobia (2010) Laws Against Homophobic Hate Crime and Hate Speech in Europe
The Prohibition of Incitement to Hatred Act: makes it an offense to incite hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion,
ethnic or national origins, membership of the Traveller Community or sexual orientation. (available at www.ilga-europe.org)
O'Connel, Donncha, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Ireland (2008)
The only criminal statute in Ireland dealing specifically with hate speech is the Prohibition of Incitement to Hatred Act 1989. This statute makes it an offence to incite hatred against a group of
persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the Traveller Community or sexual orientation. (available at
http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_IE.pdf)
22. ITALY – No
147
Note: No provision against homophobic hate speech. Italy does not have a general category like “other groups”.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not included as a protected ground and there is no general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States Part II – The Social Situation (2009)
Not a criminal offense. (http://fra.europa.eu/fraWebsite/attachments/FRA_hdgso_report_Part%202_en.pdf)
Cartabia, Marta, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Italy (2008)
There is currently no legal provision in Italy– either in criminal law or in civil law – on hate speech related to homophobia and/or discrimination on the ground of sexual orientation. (available
at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_IT.pdf.)
[No changes in the 2010 updated report, available at http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_IT.pdf]
23. LATVIA – No
Note: However, LGB individuals could be protected under a general catch-all provision, but we have no evidence of cases in which this was applied.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
ILGA-Europe and Mozaika, LATVIA: The Status of Lesbian, Gay, Bisexual and Transgender Rights (Submission to the UN Human Rights Council for its Universal Period Review of Latvia (11th
Session)) (2009) p. 3
Latvian criminal law does not recognise hate speech related to homophobia and transphobia. (http://lib.ohchr.org/HRBodies/UPR/Documents/session11/LV/JS1_JointSubmission1-eng.pdf)
Puce, Ilvija, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Latvia (2008)
The Latvian Criminal Law does not contain provisions with regard to hate speech related to homophobia. There are only implicit noncriminal remedies available against homophobic hate
speech by the Latvian law. Since amendments of 21.06.2007, the Criminal Law includes the prohibition of discrimination. While the only grounds explicitly referred to are racial or ethnic
identity, the relevant provision does include a general reference to ‘other prohibition of discrimination set by law’. (p. 29)
Civillikums (the Civil Law) provides in Article 2352 that ‘each person has the right to bring court action for the retraction of information that injures his or her reputation and dignity, if the
disseminator of the information does not prove that such information is true. If information, which injures a person's reputation and dignity, is published in the press, then where such
148
information is not true, it shall also be retracted in the press. If information, which injures a person's reputation and dignity, is included in a document, such document shall be replaced. In
other cases, a court shall determine the procedures for retraction. If someone unlawfully injures a person's reputation and dignity orally, in writing or by acts, he or she shall provide
compensation (financial compensation). A court shall determine the amount of the compensation’. (p. 33) (available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_LV.pdf)
The only case to date where person tried to make use of this provision regarding homophobic statements was I.K. against member of the Parliament L.O. On 25.04.2006. Jūrmalas pilsētas
tiesa [Jurmala City court] rejected claim of I.K.
[No changes in the 2010 update, available at http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_LV.pdf]
24. LIECHTENSTEIN - No
Note: Liechtenstein has a catch-all provision which could include homophobic hate speech, but we have no evidence of a court case.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
ILGA-Europe, Rainbow Europe Map and Index, 2011
Liechtenstein is one of the Red countries, in which “gross violations of human rights and discrimination are taking place.” (available at http://www.ilgaeurope.org/home/publications/reports_and_other_materials/rainbow_map_and_index_2011)
25. LITHUANIA – 2003
Note: Because the FRA report says that information on homophobic hate speech only became available after 2003, I assume that this is when the change came into place and allowed official
registering of these crimes. This is also the year in which sexual orientation became a protected ground in anti-discrimination laws.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Report by ILGA: State Sponsored Homophobia (2010) Laws Against Homophobic Hate Crime and Hate Speech in Europe
149
Article 170 of the Criminal Code: prohibits incitement against a group of residents or against a specific person, on account of his or her sex, sexual orientation, race, nationality, language,
ethnicity, social status, faith, religion or beliefs. Such incitement shall be punished with a fine, detention or imprisonment. (available at www.ilga-europe.org)
Ziobiene, Edita, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Lithuania (2008) (http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_LT.pdf) +
Criminal Code of Lithuania available in Lithuanian at http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=314141)
Article 170 of the Criminal Code prohibits incitement against certain groups of residents: ‘A person who, by making public statements orally, in writing or by using the public media, ridicules,
expresses contempt of, urges hatred towards or encourages discrimination against a group of residents or against a specific person, on account of his or her sex, sexual orientation, race,
nationality, language, ethnicity, social status, faith, religion or beliefs, shall be punished with (a) a fine, (b) detention or (c) imprisonment for up to 3 years.
The above-mentioned legal provisions were rarely used in practice before 2007. Official as well as unofficial statistical data on hate speech acts regarding sexual orientation of persons before
2003 are not available, thus only acts and criminal investigations initiated from 01.05.2003 can be taken into account.
[The Criminal Code is from 2000. This document also references the year 2003, but does not explain its importance:] “The above-mentioned legal provisions were rarely used in practice
before 2007. Official as well as unofficial statistical data on hate speech acts regarding sexual orientation of persons before 2003 are not available, thus only acts and criminal investigations
initiated from 01.05.2003 can be taken into account.”
ANTI-DISCRIMINATION LEGISLATION
Kees Waaldijk, 2011 Chart
Sexual orientation discrimination is prohibited in employment (2003) and in relation to goods and services (2003).
26. LUXEMBOURG – 1997
Note: The criminal code was amended in 1997 to prohibit homophobic hate speech.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Criminal Code
[Article 454 lists the prohibited categories and article 457-1 prohibits hate speech.]
Art. 457-1. (L. 19 juillet 1997) Est puni d'un emprisonnement de huit jours à deux ans et d'une amende de 251 euros à 25.000 euros ou de l'une de ces peines seulement:
150
1) quiconque, soit par des discours, cris ou menaces proférés dans des lieux ou réunions publics, soit par des écrits, imprimés, dessins, gravures, peintures, emblèmes, images ou tout autre
support de l'écrit, de la parole ou de l'image vendus ou distribués, mis en vente ou exposés dans des lieux ou réunions publics, soit par des placards ou des affiches exposés au regard du
public, soit par tout moyen de communication audiovisuelle, incite aux actes prévus à l'article 455, à la haine ou à La violence à l'égard d'une personne, physique ou morale, d'un groupe ou
d'une communauté en se fondant sur l'un des éléments visés à l'article 454; (http://legislationline.org/documents/section/criminal-codes)
European Network of Legal Experts in the Non-discrimination Field, Report on Measures to Combat Discrimination, Directives 2000/43/EC and 2000/78/EC. Country Report 2009:
Switzerland, p. 17
The notion of sexual orientation has been introduced by the law of 19 July 1997 (which amended the penal code), but does not specify its definition. While the notion was absent in the draft
bill, an amendment of the Legal Commission of the Parliament has introduced the concept. During the debates in Parliament, a Member of Parliament14 defined the concept as being relevant
not only to homosexuality, but to sexual behaviour in general. (http://www.non-discrimination.net/content/media/2009-LU-Country%20Report%20LN_final.pdf)
Report by ILGA: State Sponsored Homophobia (2010)
Incitement to hatred based on sexual orientation is prohibited
CoE European Commission against Racism and Intolerance, Legal measures to combat racism and intolerance in the member states of the Council of Europe – Luxembourg
[Article 454 of the Criminal Code, Act of 19 July 1997] Discrimination is a distinction on grounds of … sexual orientation…
[Incitement to racial discrimination, hatred or violence: Article 457-1 of the Criminal Code, act of 19 July 1997] Covers anyone who encourages the acts referred to in Article 455, as well as
racial hatred or violence towards a person or group of persons on the basis of a distinction prohibited by Article 454, by means of any words spoken in public, written material, printed matter,
pictures or emblems, published, displayed, distributed, sold, placed on sale or exposed to the public view.
Note on the amendments: The Grand Duchy of Luxembourg ratified the New York Convention of 1966 on the Elimination of All Forms of Racial Discrimination, which came into force in 1978.
Accordingly, a law of 9 August 1980 was enacted in pursuance of the Convention to supplement the Criminal Code by inserting Articles 454 and 455, which punish various forms of racial
discrimination. These Articles were amended by an Act of 19 July 1997, which inserts a definition of racial discrimination in the new Article 454 of the Criminal Code, increases the penalties
prescribed for racist offenses and creates new offenses.
[It is later mentioned in the document that sexual orientation is a protected category. This is clear on the spreadsheet that lists the scope of articles 454 and 455.]
(http://www.coe.int/t/dghl/monitoring/ecri/legal_research/national_legal_measures/luxembourg/Luxembourg_SR.pdf)
CIGALE, Moyse, François, [Updated] Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity (2010)
[This source mentions the hate speech law:]
Luxembourg’s Criminal Code provides for imprisonment of eight (8) days to two (2) years and or a fine of 251 EUR to 25,000 EUR, when anyone through any form of verbal, written or graphic
communication or materials that are made available in public places or meetings, incites discrimination, hate or violence against a natural or legal person or a group or community of persons.
151
[However, the only footnote in this section is a list of articles from the Penal Code: Luxembourg/Code Pénal Grand-Duché de Luxembourg, 01.09.2007, Arts. 453-455, 457-1 and 457-2
(01.09.2007). Because some of the articles are mentioned in other sources, I believe the other sources are correct.] (p. 23, available at
http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_LU.pdf)
27. MACEDONIA – No
Note: Macedonia has a catch-all provision which could include sexual orientation as a protected ground, but we have no evidence of cases.
Commissioner for Human Rights, Report Following his Visit to the Former Yugoslav Republic of Macedonia, 2008
123. Since same-sex consensual relations were decriminalised and the age of consent was made equal for homosexual and heterosexual sex in 1996, the atmosphere and attitude towards
LGBT persons in “the former Yugoslav Republic of Macedonia” has improved. However, certain persisting discriminatory attitudes exist at all levels, and legal safeguards are insufficient.
124. Legal protections against discrimination remain particularly weak. Currently, there are limited specific legal protection provisions available for discrimination on the basis of sexual
orientation but not on the basis of gender identity. The Law on Military Service was amended and took out the prohibition for homosexuals to serve. Moreover, a recent amendment to the
Law on Work Relations prohibiting discrimination on the basis of sexual orientation is a welcome positive legislative change albeit with a narrow scope of application. The LGBT community
also highlighted that the terminology used in the labour law did not fully correspond with the term “sexual orientation” that is also used by the ECtHR. This discrepancy is creating uncertainty
regarding the scope of the protection. Finally, there is no existing law specifically against hate crimes, whereas LGBT persons are one of the most vulnerable targets of such crimes.
125. Article 9 of the Constitution guarantees citizens equality to enjoy their freedoms and rights irrespective of a number of grounds. “Sexual orientation”, however, does not appear expressis
verbis nor is there scope for its interpretation as no “other status” reference exists. This lack of the possibility to identify sexual orientation as ground for discrimination is a distinct
shortcoming and results in lacking protection for LGBT persons.
126. A new comprehensive Anti-Discrimination Law is in the final stages of preparation before being considered by Parliament. The Commissioner was pleased to note during his meeting with
the Minister for Labour and Social Affairs that indeed the new law shall include reference to sexual orientation as a recognised ground of discrimination. The Commissioner stresses the
importance to ensure the Anti-Discrimination law is as comprehensive as possible, and inclusive to a wide spectrum of persons who may be discriminated against.
127. In general the LGBT community appears not to suffer from specific restrictions to their freedom of expression as both individuals and groups. LGBT-focussed NGO’s gain regular media
exposure of their activities in both print and electronic media. However, the Commissioner has been made aware of instances of apparent discriminatory attitudes towards the LGBT
community by local authorities. (available at
https://wcd.coe.int/wcd/ViewDoc.jsp?id=1341983&Site=CommDH&BackColorInternet=FEC65B&BackColorIntranet=FEC65B&BackColorLogged=FFC679)
EU LGBT Intergroup, European Commission: Macedonian anti-discrimination law falls short of EU standards, 2010
152
“The Commission considers that in order to meet these requirements the recently enacted antidiscrimination legislation will need to be amended in order to include explicit prohibition of
discrimination on grounds of sexual discrimination.” (available at http://www.lgbt-ep.eu/news-stories/macedonian-anti-discrimination-law-falls-short-of-eu-standards/)
Human Rights Watch, Macedonia: Broaden Anti-Discrimination Bill, 2010
(New York) - The Macedonian government's decision to ignore sexual orientation as a protected category in its draft anti-discrimination law would leave lesbians, gays, bisexuals, and
transgender (LGBT) people without vital protection, Human Rights Watch said today in a letter to Macedonian authorities. Human Rights Watch called on the government to support a
comprehensive and inclusive anti-discrimination bill, including protection on the basis of both sexual orientation and gender identity. (available at
http://www.hrw.org/en/news/2010/02/03/macedonia-broaden-anti-discrimination-bill)
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
ILGA-Europe, Rainbow Europe Map and Index, 2011
Macedonia is one of the Red countries, in which “gross violations of human rights and discrimination are taking place.” (available at http://www.ilgaeurope.org/home/publications/reports_and_other_materials/rainbow_map_and_index_2011)
28. MALTA – No
Note: According to the FRA individual report on Malta, homophobic hate speech is prohibited by the Press Act. However, there is another more general hate speech provision that does not
include LGBT individuals as a protected category. In light of this inequality, I coded Malta as “No”. The CoE report says Malta does not contain a general catch-all provision.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not included as a protected ground and there is no general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States Part II – The Social Situation
Not a criminal offense. (http://fra.europa.eu/fraWebsite/attachments/FRA_hdgso_report_Part%202_en.pdf) (2009)
Refalo, Ian & Comodini Cachia, Therese, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Malta (2008)
(http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_MT.pdf) + Press Act http://www.privacyinternational.org/countries/malta/press%20act%20chapt248.pdf
153
The Criminal Code does not in any manner refer to hate speech, neither in general nor with particular reference to homophobia. In fact, the only concept that may come close to the concept
of hate speech and which is found in our law is the concept of ‘incitement to hatred’. This is regulated in Section 82A of the Criminal Code. Yet the application of this section is limited to racial
hatred only and nothing in this section could indicate that the incitement to hatred against an LGBT person would be taken into account under this offence.
A similar concept is found within the Press Act which provides in Section 6 as follows:
‘Whosoever, by any means mentioned in Article 3, shall threaten, insult, or expose to hatred, persecution or contempt, a person or group of persons because of their race, creed, colour,
nationality, sex, disability as defined in Article 2 of the Equal Opportunities (Persons with Disability) Act, or national or ethnic origin shall be liable on conviction to imprisonment for a term not
exceeding three months and to a fine (multa).’
Yet one is to note that this Act applies only to publications of printed matter and therefore does not control speech in all its forms. Despite this, with the inclusion of the term ‘sex’ one is to
understand that publications that threatened, insulted, or exposed to hatred LGBT persons would fall foul of this law.
[The Press Act is from 1974. The cited provision was included in 1996 and amended in 2000.] According to the Study:
While as noted above the concept of marriage has been limited under Maltese public policy to a union between man and woman, when considering issues of discrimination and the right to
privacy the term ‘sex’ has not been so limited. This conclusion is based on an interpretation given by the authors keeping in mind the interpretation of the European Court of the protection
offered under the European Convention.
Refalo, Ian & Comodini Cachia, Therese, [Updated] Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Malta (2010)
[The updated version changed the last paragraph a bit, indicating that the extension of sex discrimination to cases based on sexual orientation is not as clear as it seemed:]
In considering the Press Act one is to note that this Act applies only to publications of printed matter and therefore does not control speech in all its forms. Having clarified this, it is dubious
whether the term ‘sex’ here referred to would be taken to include sexual orientation or whether it would be restricted to male and female by a court of law. There is no case-law that may
provide any indication, yet it seems that it is only those courts having the jurisdiction to consider human rights complaints that have so far taken the term ‘sex’ to include sexual orientation.
There is no indication that any informal or formal guidelines or policies are in place to address this legal lacuna. (p. 15, available at http://www.fra.europa.eu/fraWebsite/attachments/LGBT2010_thematic-study_MT.pdf)
Waaldijk, Kees, 2011 Chart
Sexual orientation discrimination is prohibited in employment (2003). There is no anti-discrimination law for goods and services.
29. MOLDOVA – No
154
Note: Despite evidence of a catch-all provision, there is no information which suggests the existence of an anti-discrimination law. Moreover, the country was not listed as considering
homophobic motivation as an aggravating factor.
Moldova was included by ILGA-Europe in the list of countries in which there are gross violations of human rights and discrimination.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
ILGA-Europe, Rainbow Europe Map and Index, 2011
Moldova is one of the Red countries, in which “gross violations of human rights and discrimination are taking place.” (available at http://www.ilgaeurope.org/home/publications/reports_and_other_materials/rainbow_map_and_index_2011)
30. MONACO – 2005
Note: A provision on homophobic hate speech is included in the Loi sur la liberté d’expression publique.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
ILGA, State-Sponsored Homophobia (2011)
2005 - See Articles 16, 24, 25, 44 of the Loi n° 1.299 du 15 juillet 2005 sur la liberté d'expression publique, available at:
http://www.conseil-national.mc/admin/rapport_loi/Txt_091106112217.pdf
Loi n° 1.299 du 15 juillet 2005 sur la liberté d'expression publique
Article 16, paragraph 3
Sont punis des mêmes peines ceux qui, par l'un des moyens énoncés à l'article 15, provoquent à la haine ou à la violence à l'égard d'une personne ou d'un groupe de personnes à raison de
leur origine, de leur appartenance ou de leur non-appartenance à une ethnie, une nation, une race ou une religion déterminée, ou à raison de leur orientation sexuelle, réelle ou supposée.
Article 24, paragraph 2
La diffamation commise par les mêmes moyens envers une personne ou un groupe de personnes à raison de leur appartenance, réelle ou supposée, ou de leur non-appartenance à une
ethnie, une nation, une race ou une religion déterminée, ou à raison de leur orientation sexuelle, réelle ou supposée, est punie d'un emprisonnement d'un mois à un an et de l'amende prévue
au chiffre 3 de l'article 26 du code pénal, ou de l'une de ces deux peines seulement.
155
ILGA-Europe, Rainbow Europe Map and Index, 2011
Monaco is one of the Red countries, in which “gross violations of human rights and discrimination are taking place.” (available at http://www.ilgaeurope.org/home/publications/reports_and_other_materials/rainbow_map_and_index_2011)
31. MONTENEGRO – No
Note: Montenegro has a catch-all provision which could include sexual orientation as a protected category, but there are no cases in which this interpretation was applied.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Commissioner for Human Rights, Report on His Visit to Montenegro, 2008
160. Open discussions regarding homosexuality remains taboo in the country, indeed a climate of hostility towards LGBT persons exists. This has resulted in many LGBT persons preferring to
conceal their sexual identity rather than potentially subject themselves to taunts or other discriminatory attitudes. The community has been forced to exist undercover. This is demonstrated
by the fact that no organisation or lobby group seemed to exist in Montenegro at the time of the Commissioner’s visit. This in itself highlights a lack of willingness for LGBT persons to come
out and speak out for their rights.
161. A general prohibition of discrimination is provided for within Article 8 of the Constitution of Montenegro; however, “sexual orientation”, does not appear expressis verbis in this, or in any
other non-discrimination legislation.
162. Although same-sex acts have been legal for a considerable length of time, attitudes have not changed much. This lack of public acceptance of LGBT may be attributable to a Communist
heritage and patriarchal attitudes which have perpetuated a discriminatory and repressive attitude towards certain groups within society. To sensitise people on diversity of sexuality,
education is needed. This could take the form of a combination of public campaigns, integration of further sex education within school curricula and further training of state professionals
including law enforcement, judicial and medical personnel. The Commissioner recommends the Government adopt a forward-thinking and proactive approach to the rights of LGBT persons to
ensure they have equal access to rights and freedoms as other members of society. (available at
https://wcd.coe.int/wcd/ViewDoc.jsp?id=1350921&Site=CommDH&BackColorInternet=FEC65B&BackColorIntranet=FEC65B&BackColorLogged=FFC679#P479_107145)
32. NETHERLANDS – 1992
Note: There are several articles that can be used against homophobic hate speech. According to an article by Kees Waaldijk, these provisions were introduced in 1992.
156
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Waaldijk, Kees, et al., [Updated] Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity (2010).
[Provisions that can be applied to hate speech:]
Article 137c of the Dutch Penal Code outlaws public expressions about a group of people, that are insulting on grounds of their heterosexual or homosexual orientation (or on grounds of their
race, religion or belief, or since 2006 on grounds of their physical or mental disability).
… anti-homosexual verbal abuse more often falls within the terms of Article 266 of the Penal Code, which makes it a crime to insult someone. Article 266 does not require that the insult is
discriminatory. It includes an exception for commenting on the promotion of public interests.
Public incitement of hatred, of discrimination or of violence against persons on grounds of their heterosexual or homosexual orientation is punishable under Article 137d of the Penal Code.
On the basis of Article 137e of the Penal Code a person who – for any reason other than that of giving factual information – publishes a statement which s/he knows or should reasonably
suspect to be insulting to a group of people on the grounds of their heterosexual or homosexual orientation (or race, religion, belief or disability), or which s/he knows or should reasonably
suspect to incite hatred of or discrimination against people or violence against their person or property on the grounds of their heterosexual or homosexual orientation (or race, religion,
belief, disability or sex), is liable to a term of imprisonment of not more than six months or a fine of 7,600 Euro maximum. (p. 35, available at
http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_NL.pdf)
Report by ILGA: State Sponsored Homophobia (2010) Laws Against Homophobic Hate Crime and Hate Speech in Europe
Article 137d of the Criminal Code: punishes public incitement of hatred, discrimination or violent action against persons on the grounds of his/her hetero- or homosexual orientation.
(available at www.ilga-europe.org)
Waaldijk Kees, Standard Sequences in the Legal Recognition of Homosexuality – Europe’s past, present and future, 1994, p. 54
“In six countries specific legislation against anti-homosexual discrimination has been enacted … Netherlands in 1992.” Footnote: Articles 137c, 137d, 137e, 137f and 429 of the Dutch Penal
Code. (available at https://openaccess.leidenuniv.nl/bitstream/1887/3624/1/170_046.pdf)
33. NORWAY – 1981
Note: Specific provision added to the Criminal Code in 1981.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
157
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Report by ILGA: State Sponsored Homophobia (2010) Laws Against Homophobic Hate Crime and Hate Speech in Europe
Incitement to hatred based on sexual orientation is prohibited. (available at www.ilga-europe.org)
Greenwood Encyclopedia of LGBT Issues Worldwide (2010), p. 313
“(…) section 135[a] of the criminal code states that it is illegal to utter a hateful or discriminatory statement concerning skin color, national or ethnic origin, religion, ‘homophile leaning,’
lifestyle, or orientation.”
ILGA Euroletter #45, November 1996
In 1981 Norway amended Paragraph 349a of its Penal Code to prohibit discrimination based on sexual orientation in the provision of goods or services and in access to public gatherings. In the
same year Paragraph 135a of the Penal Code was amended to prohibit hate speech directed at sexual minorities. The private labor market is not covered by these protections.
(http://www.france.qrd.org/assocs/ilga/euroletter/45.html#Facts)
34. POLAND – No
Note: Poland has a catch-all provision, but no evidence that it has been applied to homophobic hate speech cases.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States Part II – The Social Situation (2009)
Not a criminal offense. (http://fra.europa.eu/fraWebsite/attachments/FRA_hdgso_report_Part%202_en.pdf)
Bodnar, Adam, et al., [Updated] Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity (2010)
In Poland there are no separate criminal rules that would protect members of sexual minorities, although special protection is granted to members of other minorities.
… They are protected against hate speech only by general rules of the Criminal Code and the Civil Code.
In particular, Article 212 of the Criminal Code is often applied, according to which: Ԥ1. Whoever imputes to another person, a group of persons, institution, legal person, or organisational unit
not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of trust necessary for a given position,
occupation or type of activity, shall be subject to a fine, a penalty of restriction of liberty or a penalty of deprivation of liberty for up to one year. [...]’
158
Strengthened protection of minorities by criminal law may be considered desirable because:
• Article 212 of the Criminal Code was intended to serve a different purpose from Articles 256 and 257 of the Criminal Code. Above all the aim of this provision is to protect reputation, not
safety and public order;
• There are doubts concerning the compatibility of Article 212 of the Criminal Code with the Constitution. This article which aims only for the protection of reputation might be recognised as
being contrary to the Constitution, more particularly as existing norms in civil law constitute sufficient protection of the good name of the injured person. Therefore, there is no need to
introduce an additional restriction of the freedom of speech by criminal law. However, if it remains unchanged, annulment of Article 212 of the Criminal Code would completely deprive sexual
minorities of the protection granted by the criminal law against the hate speech. The compatibility of Article 212 of the Criminal Code with the Constitution is now being considered by the
Constitutional Court. (p. 49, available at http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_PL.pdf)
35. PORTUGAL – 2007
Note: homophobic hate speech has been prohibited since the adoption of Law n. 59/2007.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Report by ILGA: State Sponsored Homophobia (2010) Laws Against Homophobic Hate Crime and Hate Speech in Europe
Article 240 of the Criminal Code: classifies homophobic hate speech as a crime. (available at www.ilga-europe.org)
Amendment to the Penal Code
Sexual orientation became a protected category with the approval of Law n. 59/2007. http://www.pgdlisboa.pt/pgdl/leis/lei_mostra_articulado.php?nid=930&tabela=leis&ficha=1&pagina=1
Pinheiro, Alexandre Souza, et al., [Updated] Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity (2010)
Hate speech related to homophobia and discrimination on the grounds of sexual orientation is classified as a crime in criminal law under the designation ‘Racial, religious and sexual
discrimination’ (Article 240). In fact, this article describes several discriminatory behaviours as crimes and is not restricted to the above mentioned grounds for discrimination. (p. 22,
http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_PT.pdf)
36. ROMANIA – 2006
159
Note: According to ILGA, incitement to hatred based on sexual orientation is prohibited since 2000. This date is confirmed by other sources.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
In a pending case before the European Court of Human Rights an applicant from Romania claims he has been detained, questioned, photographed and fingerprinted because of his
homosexuality. (at p. 55)
Individual Report on Romania, p. 37:
The law of July 2006 amending the Criminal Code created the new crime of ‘hate speech’, as incitement to discrimination based on all grounds of discrimination sanctioned by the Antidiscrimination Law, including sexual orientation. This broadened the scope of application of an earlier provision which only criminalised ‘national and xenophobic propaganda’ and incitement
to racist and nationalistic hatred and did not mention sexual orientation. (http://fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_RO.pdf)
Report by ILGA: State Sponsored Homophobia (2010)
Incitement to hatred based on sexual orientation is prohibited since 2000.
CoE , European Commission against Racism and Intolerance, Legal Measures to Combat Racism and Intolerance in the Member States of the Council of Europe, 2004, p. 6
Under the Government Ordinance no. 137/2000 concerning the prevention and punishment of all forms of discrimination, any offending public behavior, any public behavior with a
nationalistic-chauvinistic character, any incitement to racial or national hatred, or any behavior aiming to prejudice a person’s dignity or create a hostile, degrading, humiliating or offending
atmosphere, perpetrated against a person, a group of persons or a community on account of race, nationality, ethnic group, religion, social category or appurtenance to a disadvantaged
category, on account of beliefs, sex or sexual orientation shall constitute an offence, unless the deed falls under the incidence of criminal law. In all cases of discrimination provided by the
ordinance herein, the persons discriminated against shall be entitled to claim damages, proportionally with the prejudice, as well as to the re-establishment of the situation prior to the
discrimination or to the annulment of the situation created by discrimination, in accordance with common law. (available at
http://www.coe.int/t/dghl/monitoring/ecri/legal_research/national_legal_measures/Romania/Romania_SR.pdf)
The law of July 2006 amending the Criminal Code created the new crime of ‘hate speech’, as incitement to discrimination based on all grounds of discrimination sanctioned by the Antidiscrimination Law, including sexual orientation. This broadened the scope of application of an earlier provision which only criminalised ‘national and xenophobic propaganda’ and incitement
to racist and nationalistic hatred and did not mention sexual orientation.
Other criminal offences in the field of hate speech are sanctioned by the Romania [Law prohibiting fascist, racist and xenophobic organisations and symbols and the encouragement to
venerate persons guilty of crimes against peace and humanity].
160
37. RUSSIA - No
Note: Russia has a catch-all provision which could include sexual orientation as a protected category. However, we have no evidence that this interpretation has been applied by courts.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
“During the research for this report numerous examples of often strong hate expressions were identified in Council of Europe member states. For example in relation to attempts to organise a
Pride march in the Russian Federation a regional governor was quoted as saying: “Tolerance?! Like Hell! Faggots should be torn apart. And their pieces should be thrown in the wind.”” (p. 57)
ILGA-Europe, Rainbow Europe Map and Index, 2011
Russia is one of the Red countries, in which “gross violations of human rights and discrimination are taking place.” (available at http://www.ilgaeurope.org/home/publications/reports_and_other_materials/rainbow_map_and_index_2011)
38. SAN MARINO – 2008
Note: A law against homophobic hate speech, introduced in 2008, includes sexual orientation as a protected ground.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
ILGA-Europe, Rainbow Europe Map and Index, 2011
San Marino is one of the Red countries, in which “gross violations of human rights and discrimination are taking place.” (available at http://www.ilgaeurope.org/home/publications/reports_and_other_materials/rainbow_map_and_index_2011)
State-Sponsored Homophobia (2011)
Says the date is 2008
Legge 28 Aprile 2008 N.66, Disposizioni in Materia di Discriminazione Razziale, Etnica, Religiosa e Sessuale
(Discriminazione, odio o violenza per motivi razziali, etnici, nazionali, religiosi o legati all’orientamento sessuale)
161
Chiunque diffonde in qualsiasi modo idee fondate sulla superiorità o sull’odio razziale o etnico, o incita a commettere o commette atti di discriminazione per motivi razziali, etnici, nazionali,
religiosi o legati all’orientamento sessuale, ovvero incita a commettere o commette violenza o atti di provocazione alla violenza per motivi razziali, etnici, nazionali, religiosi o legati
all’orientamento sessuale, è punito con la prigionia di secondo grado. Per i reati aggravati dalla circostanza della discriminazione razziale, etnica, nazionale o religiosa, o legata
all’orientamento sessuale, di cui all’articolo 90, comma 1, punto 1, si procede in ogni caso d’ufficio.”.
(http://www.consigliograndeegenerale.sm/contents/instance18/files/document/23731leggi_7343.pdf)
39. SERBIA – No
Note: Our sources present conflicting information. The Council of Europe Report provides details on the 2009 law, and states that the law does not include sexual orientation as a protected
category.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
“During the research for this report numerous examples of often strong hate expressions were identified in Council of Europe member states. (…) In 2009, when organisers of a Gay Pride
event in Serbia held a press conference, protestors outside were reportedly shouting: “Faggots, we will kill you.”” (at p. 57)
Individual Report on Serbia, p. 10:
The Penal Code with its recent changes [from 2009, explained later in the document] allows public prosecution of persons that threaten persons and organisations because of their work for
equality of citizens” andaccording to this law, racial and other discrimination are a criminal offence, but sexual orientation is not particularly mentioned[.] (…)
On 19 September 2008, a group of 10 people attacked and injured four participants of the Belgrade Queer Festival18 and this resulted in grave bodily injury of one person and three of them
were light injured. Police arrested two alleged perpetrators. On 22 September 2008, the Belgrade Queer collective sentenced attack and asked the government to apply rule of law against
homophobic attacks.
On 29 May 2009, the district prosecutor dismissed the allegations of discrimination, which is in the name of victims of attacks launched Labris – lesbian human rights organisation19, on the
basis that there is no evidence that the attack occurred on "racial or other discrimination or "violation of equality" as stated in the Articles 387 and 128 of the Penal Code20. After that, Labris –
organisation for lesbian human rights continued pushing the criminal charges against these persons by starting a private lawsuit within a lawfully determined period of time. This case is still
going on and we are waiting for the next court hearing. (http://www.coe.int/t/Commissioner/Source/LGBT/SerbiaLegal_E.pdf)
IGLHRC, Serbia: Anti-Discrimination Law is Adopted, April 2009
162
… on 26 March, the National Assembly voted by a narrow majority to adopt the anti-discrimination law, officially banning acts of discrimination on the basis of sexual orientation, among other
grounds.
[Translation of the anti-discrimination law is available on IGLHRC’s website:]
Article 2: In the text of this Law:
the terms “discrimination” and “discriminatory treatment” shall be used to designate any unwarranted discrimination or unequal treatment, that is to say, omission (exclusion, limitation or
preferential treatment) in relation to individuals or groups, as well as members of their families or persons close to them, be it overt or covert, on the grounds of race, skin colour, ancestors,
citizenship, national affiliation or ethnic origin, language, religious or political beliefs, gender, gender identity, sexual orientation, financial position, birth, genetic characteristics, health,
disability, marital and family status, previous convictions, age, appearance, membership in political, trade union and other organisations and other real or presumed personal characteristics
(hereinafter referred to as: personal characteristics);
Article 11: It is forbidden to express ideas, information and opinions inciting discrimination, hatred or violence against an individual or a group of persons on account of his/her or their
personal characteristics, in public organs and other publications, in gatherings and places accessible to the public, by writing out and displaying messages or symbols, and in other ways.
(available at: http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/resourcecenter/896.html)
Report by ILGA: State Sponsored Homophobia (2010)
Incitement to hatred based on sexual orientation is prohibited since 2009.
40. SLOVAKIA – No
Note: Listed by the CoE as a country that has a general catch-all provision. However, we have no evidence that this interpretation has been applied by courts.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States Part II – The Social Situation (2009)
Not a criminal offense. (http://fra.europa.eu/fraWebsite/attachments/FRA_hdgso_report_Part%202_en.pdf)
Criminal Code (available at http://www.zbierka.sk/default.aspx?sid=3&category=11, Google translation)
§ 424 [comment]
Inciting national, racial and ethnic hatred
163
(1) Who is threatening an individual or group of persons because of their affiliation to any race, nation, nationality, color skin, ethnicity, origin, gender or their religion, if it is a pretext for
threatening to previous reasons the commission of crime, limiting their rights and freedoms, or who has limited power, or who incites restriction of rights and liberties of a nation, nationality,
race or ethnic group shall be punished by imprisonment of up to three years.
(2) As in paragraph 1 shall be punished, who band together to collect or to commit an act referred to in paragraph 1
(3) imprisonment for two years to six years, the offender, if he commits the act referred to in paragraph 1 or 2
a) in conjunction with a foreign power or foreign agent,
b) publicly
c) a special theme,
d) as a public official
e) a member of an extremist group, or
f) under a crisis situation.
41. SLOVENIA – 2008
Note: Slovenia explicitly prohibited incitement to hatred on the basis of sexual orientation in 2008.
European Network of Legal Experts in the Non-Discrimination Field, Report on Measures to Combat Discrimination – Directives 2000/43/EC and 2000/78/EC
Hate speech is defined in Article 297 of the new Penal Code, stating that one who publicly encourages or incites ethnic, racial, religious or other hatred or intolerance, or incites to another
type of intolerance due to physical or intellectual deficiencies or sexual orientation, shall be sanctioned with imprisonment up to two years. (p. 18)
On 20 May 2008 a new Penal Code was adopted (entry into force: 1 November 2008), that included the non-discrimination aspect in several provisions. (p. 18). (available at http://www.nondiscrimination.net/content/media/2009-SI-Country%20Report%20LN_final.pdf)
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Updated FRA Report, 2010
Article 297 of the new Kazenski zakonik [Penal Code] of the Republic of Slovenia determines as follows:
(1) Whoever publicly provokes or stirs up ethnic, racial, religious or other hatred, strife or intolerance, or provokes any other inequality on the basis of physical or mental deficiencies or sexual
orientation, shall be punished by imprisonment of up to two years.
164
(3) If the offence under preceding paragraph has been committed by publication in mass media, the editor or the person acting as the editor shall be sentenced to the punishment, by
imposing the punishment referred to in paragraphs 1 or 2 of this Article, except if it was a live broadcast and he was not able to prevent the actions referred to in the preceding paragraphs.
(4) If the offence under paragraphs 1 or 2 of this Article has been committed by coercion, maltreatment, endangering of security, desecration of national, ethnic or religious symbols,
damaging the movable property of another, desecration of monuments or memorial stones or graves, the perpetrator shall be punished by imprisonment of up to three years.
(5) If the acts under paragraphs 1 […] this Article have been committed by an official by abusing their official position or rights, he shall be punished by imprisonment of up to five years.
(6) Material and objects bearing messages from paragraph 1 of this Article, and all devices intended for their manufacture, multiplication and distribution, shall be confiscated, or their use
disabled in an appropriate manner.
Moreover, Article 131 of the Penal Code also explicitly incriminates violation of right to equality. (available at http://www.fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematicstudy_SI.pdf)
Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States Part II – The Social Situation
Not a criminal offense. (http://fra.europa.eu/fraWebsite/attachments/FRA_hdgso_report_Part%202_en.pdf) (2009)
42. SPAIN – 1996
Note: Article 510 of the Criminal Code was introduced in 1995/1996.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Report by ILGA: State Sponsored Homophobia (2010) Laws Against Homophobic Hate Crime and Hate Speech in Europe
Article 510, Criminal Code punishes promotion of discrimination, hatred or violence against groups or associations, for reasons related to among others sexual orientation, and those who,
knowing it to be false or in reckless disregard of the truth, spread injurious information on groups or associations for similar reasons. [The ILGA publication indicates 1996 as the date]
(available at www.ilga-europe.org)
Artículo 510.
1. Los que provocaren a la discriminación, al odio o a la violencia contra grupos o asociaciones, por motivos racistas, antisemitas u otros referentes a la ideología, religión o creencias, situación
familiar, la pertenencia de sus miembros a una etnia o raza, su origen nacional, su sexo, orientación sexual, enfermedad o minusvalía, serán castigados con la pena de prisión de uno a tres
años y multa de seis a doce meses.
165
2. Serán castigados con la misma pena los que, con conocimiento de su falsedad o temerario desprecio hacia la verdad, difundieren informaciones injuriosas sobre grupos o asociaciones en
relación a su ideología, religión o creencias, la pertenencia de sus miembros a una etnia o raza, su origen nacional, su sexo, orientación sexual, enfermedad o minusvalía.
The Penal Code references a change in the section in which Article 510 is located, but it only references national security issues, changing the language of certain articles:
http://noticias.juridicas.com/base_datos/Penal/lo3-2002.html
43. SWEDEN – 2003
Note: According to ILGA-Europe, Sweden included sexual orientation as a protected ground in 2003.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
ILGA, State-Sponsored Homophobia
Indicates 2003 as the date. (http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2011.pdf)
44. SWITZERLAND – No
Note: Switzerland has a catch-all provision which could include sexual orientation as a protected ground. However, we have no evidence that this has been applied.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
45. TURKEY – No
Note: Turkey has a catch-all provision which could include sexual orientation as a protected category. However, we do not have evidence of cases.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
166
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Individual Report on Turkey, p. 19:
Indicates that there was one conviction of homophobic hate speech in 2009. The case is listed in a graph of statistics on convictions for hate speech.
However, this excerpt suggests that homophobic hate speech is still widespread: “On March 2010, the State Minister responsible for Woman and Family issues, Mrs. Selma Aliye Kavaf stated
that she finds homosexuality a “biological disorder and sickness” and something that must be cured. This was the first hate speech ever coming from a minister.”
ILGA-Europe, Rainbow Europe Map and Index, 2011
Turkey is one of the Red countries, in which “gross violations of human rights and discrimination are taking place.” (available at http://www.ilgaeurope.org/home/publications/reports_and_other_materials/rainbow_map_and_index_2011)
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Interlocutors in some member states reported incidents of violence and harassment against LGBT persons perpetrated by state actors. In Turkey harassment and violence towards LGB and
especially transgender persons in Istanbul, Ankara, Mersin and Eskisehir was flagged as a major concern by several interlocutors, including in a report published by the Istanbul Provincial
Human Rights Board.13 (available at http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 54)
“UN treaty bodies and UN special rapporteurs have, in relation to Azerbaijan, the Russian Federation and Turkey, urged these states to end acts of violence and harassment by the police
against LGBT persons.” (p. 56)
46. UKRAINE – No
Note: Ukraine has a catch-all provision which could include sexual orientation as a protected category. There are no cases.
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country in which sexual orientation is not a criminal offense, but may be included in a general “other groups” provision. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
“In Ukraine, NGO reports document experiences of Ukrainian gay men who were arrested in a park late at night, subsequently photographed by police and had their fingerprints taken.”
13
Citation: Report of TC Istanbul Valiliği, Sayı B054VLK4340300/521/3764; National contribution (sociological report) on Turkey, p. 11; Human Rights Watch, “We Need a Law for Liberation” –
Gender, Sexuality, and Human Rights in Changing Turkey”, May 2008, p. 75.
167
“Again in Ukraine, during the investigation of a criminal case connected with the murder of a gay man, NGO reports refer to the police raiding the gay club “Androgin” in Kiev during the night
of 10 to 11 April 2009. Over 80 people were allegedly detained and taken to a police station. Some people reported rude and abusive treatment by police officers and also claimed that the
officers used force against them. At the police station, the officers took fingerprints and photos of those detained.” (at p. 55)
“UN treaty bodies and UN special rapporteurs have, in relation to Azerbaijan, the Russian Federation and Turkey, urged these states to end acts of violence and harassment by the police
against LGBT persons.” (p. 56)
ILGA-Europe, Rainbow Europe Map and Index, 2011
Ukraine is one of the Red countries, in which “gross violations of human rights and discrimination are taking place.” (available at http://www.ilgaeurope.org/home/publications/reports_and_other_materials/rainbow_map_and_index_2011)
47. UK 2004 – No
Note: Parts of the UK do not yet have criminal provisions on homophobic hate speech.
England and Wales – 2008
Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2011
Country that explicitly prohibits incitement to hatred, violence or discrimination on grounds of sexual orientation. (available at
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf, p. 52)
Report by ILGA: State Sponsored Homophobia (2010); Laws Against Homophobic Hate Crime and Hate Speech in Europe
The Criminal Justice and Immigration Bill punishes stirring up hatred against persons, and covers hatred on the grounds of sexual orientation.
(http://www.justice.gov.uk/publications/criminal-justice-bill.htm; www.ilga-europe.org)
Northern Ireland – 2004
Report by ILGA: State Sponsored Homophobia (2011)
2004.
168
4. Sources
Military
Albania
Sameera Dalvi, “Homosexuality and the European Court of Human Rights: Recent Judgments
against the United Kingdom and their Impact on other Signatories to the European Convention
of Human Rights”, University of Florida Journal of Law and Public Policy 467 (2004): 25-30.
Besar Likmeta, 2010. “Albania Activists Push for Gay Rights in the Military.” Balkan Insight,
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14
In the original: BiH trenutno ne omogućava usluge promjene spola za osobe koje se identificiraju kao transrodne
ili transeksualne. Ne postoji medicinska/stručna niti psihološka podrška/savjetovanje u tom pogledu. Štaviše,
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promjene spol to uglavnom rade van granica BiH. Međutim, to i dalje ostavlja pitanje promjene ličnih dokumenata,
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