LGBTI situation in Estonia

Ann Väljataga

LGBTI rights are topic, which tends to cause excitement in the public and discussion of which often becomes very passionate. This was also the case in 2013. And yet, behind all the noise is just silence and stagnation, there have been few significant developments, if any – the Cohabitation Act has been placed on a shelf to gather dust and the interest groups have not reached an agreement on the portion in the Penal Code concerning hate crimes. There has been court practice – including cases of potentially great effect, but none of them have come into force yet, therefore, these cases can be discussed in more detail in coming years. However, an important event has taken place – the Chancellor of Justice passed the Ministry of the Interior an important memorandum requesting bringing the Aliens Act into accordance with the Constitution as it does not allow the same sex partners of Estonian citizens to apply for a residence permit in Estonia based on their partnership.

Institutional and legislative developments

The greatest development, which may influence the concept of family in Estonian law, and extend the right of family reunification in asylum proceedings is the memorandum issued by the Chancellor of Justice to the Ministry of the Interior on November 4th. The Chancellor of Justice, for the first time, drew attention and asked the Ministry of the Interior to provide comments, to the possible contradiction of § 118 of the Aliens Act in 2012. This was based on three similar applications that had been submitted with the Chancellor of Justice requesting review of constitutionality of the Aliens Act in the part that it does not allow same sex partners of Estonian citizens to move to Estonia and reside here. The Citizen of the European Union Act allows a 3rd state citizen cohabitant of a EU citizen, regardless of their gender or sexual orientation, to reside in the destination state. The area protected by § 12, 26 and 27 of the Constitution and § 8 of the ECHR is interpreted in a much more narrow manner for Estonian citizens and aliens who are permanent residents – this includes only a traditional nuclear family. In his request for information the Chancellor of Justice asked the Minister of the Interior to give an assessment on whether such situation is in accordance with the constitution.^[1] The Ministry of the Interior responded in November 2012 with a letter explaining that the current legislation is lawful as “the legal position of persons not married to each other in Estonian law is not considered equal to the legal position of persons who are married and being members of a household does not change that legal position, therefore the Estonian citizens cannot have the expectation that a person could receive a residence permit or have the right to reside with him if he is not recognised as a member of his family in Estonia”.^[2]

The Minister of the Interior also stated that “the legal status of 3rd state citizens in Estonia differs in essence from the legal status of Estonian citizens as well that of EU citizens, which is why they are not comparable groups of people.” Chancellor of Justice was not persuaded by this argumentation and in his memorandum of 4 November 2013 advises initiating amendment of the Aliens Act to bring it into accordance with the constitution.^[3]

The Ministry of the Interior responded to the memorandum emphasising that according to Directive 2003/86/EC the Member States do not have the duty to include same sex partnership or long term heterosexual cohabitation among grounds for application for a residence permit, the states retain their discretion in these matters. The purpose of the provision of the Citizen of the European Union Act is not to extend the area of protection of the family in Estonian law, but to retain the family relations of EU citizens as they were in the originating state.^[4] The Ministry of the Interior stuck to their view and as of March 2014 no steps have been taken to amend the Aliens Act. Nevertheless, the existence of this memorandum could be considered progress as it draws attention to contradictions that affect not only Estonian citizens’ and permanent residents’ right to protection of family life, but may affect the interpretation of reunification of families in asylum practices.

As mentioned in the introduction, the larger portion of legal changes are still in early stages and no considerable solutions were made in 2013. To this day the legal position of transsexual persons in Estonia is regulated rather obliquely and according to the activists and interest groups the current regulation is outdated and does not meet the actual needs or the situation. The shortcomings regarding acts of laws concerning transsexual persons is covered by Helen Talalaev in the 2012 Human Rights Report of the Estonian Human Rights Centre.^[5] The draft act amending the Family Law Act was prepared in 2013, which would, upon coming into force, clarify a possible problem that transsexual persons and their partners might come into contact with. The Family Law Act states that the marriage is null and void if persons of the same sex are married. This provision does not provide a solution where one of the spouses has a sex change operation during the marriage. The Ministry of Justice and the Ministry of the Interior have interpreted the current regulation that in this case the marriage will be declared null and void retroactively and the parties have no rights or obligations stemming from this.^[6] The proposed amendments prescribe that in this case all rights and obligations will remain that arose before grounds for nullity were apparent (the sex change operation). The authors of the draft act admit that the target group of the amendment is extremely small in reality – nevertheless, a more concrete regulation of this situation sends a clear signal that the problems of transsexual persons are not considered as something purely hypothetical.^[7]

Matters concerning intersexual persons are legally and medically complicated and largely unregulated in the entire world. Estonia poses no exception in this question. According to the Ministry of Social Affairs one person of undetermined sex was born in Estonia between 1992 and 2012, therefore there is no practical experience for the doctors, judges, lawyers or social workers.^[8] At the moment the law does not permit not writing down sex on the birth certificate, although it is possible to change it.^[9] Treatment and operating on intersexual persons, like other medical services, are regulated by § 758-773 of the Law of Obligations Act. According to § 776 persons under the age of 18 are considered of restricted active legal capacity and whether or to what extent they are able to assess the possible positive and negative effects of their treatment or operation, is up for the doctors to decide. In case the doctor considers the person unable to weigh the circumstances reasonably the power of decision belongs to the patient’s legal representatives. No exceptions are prescribed to the intersexual persons.^[10]

In addition, the amendment of the Equal Treatment Act to guarantee protection from discrimination based on sexual orientation, beliefs, age and disability also outside work environments, in education, social spheres, health care and access to goods and services is still in plan. Putting together a project for the draft act is in the 2014 working plan of the Ministry of the Interior.

Court practice

The appeals of NGO SEKY chairman Reimo Mets regarding refusal to issue a certificate of capacity to marry, and distribution of property of same sex partners after  ending their cohabitation are still going through court proceedings. A case was added in 2013 regarding recognition of marriage of same sex partners, which was concluded in a foreign state, in Estonia, and its recording in the population register.^[11]

Noteworthy public discussions

The development of the long-awaited Cohabitation Act did not belong among the priorities of the Ministry of Justice last year and no steps were taken to get closer to regulating cohabitation of same sex partners, which, however, does not mean an absence of a heated debate. The foundation Perekonna ja Traditsiooni Kaitseks initiated a petition at the beginning of the year, inviting citizens to stand up for preservation of a traditional family model, or in other words, against the Cohabitation Act. The petition gathered 37,854 signatures, which is a large number, considering the local scale.^[12] No public demonstrations took place in the course of the campaign.

On the International Day Against Homophobia and Transphobia, on May 17th, a panel discussion took place, where the changing concept of a family and its legal regulation was discussed by members of Riigikogu Olga Sõtnik, Andres Anvelt and Imre Sooäär. All the participants admitted that the legal status of same sex cohabitants is an important issue, which has remained without solution because of lack of political will. Creation of a cross-parties working group was offered as a solution. The working group was not created in 2013, it was created after the coalition change in March of 2014.

The week “Diversity Enriches” took place in September, as is tradition, and was this time dedicated to the changing concept of family and alternative family models, and included a film programme as well as a programme of discussion. The campaign was partly funded (to the extent of 30,000 euros) by the Ministry of Social Affairs. The foundation Perekonna ja Traditsiooni Kaitseks, which was irritated by this fact, initiated another petition, as it found that the funding of the campaign “Diversity Enriches” by the Ministry of Social Affairs is an abuse of the tax payers’ money. As a result of the petition the Ministry of Social Affairs received hundreds of identically worded letters requesting to stop the financing of the campaign “Diversity Enriches”. The Ministry of Social Affairs replied to the letters explaining the different concepts of marriage and family, and the importance of equal treatment and the prohibition of discrimination in a democratic society.^[13] In opposition to the initiative of the foundation Perekonna ja Traditsiooni Kaitseks signatures were raised in support of the campaign, and the Ministry of Social Affairs received 80 letter thanking them for supporting the programme “Diversity Enriches” and pointing out its positive effect on Estonia’s society.^[14]

Neither did the issue of hate speech find any legal outcomes in 2013, although it was very much a discussion topic. The Open Society Forum that took place on September 12th focused on hate speech and sought answers to the questions regarding self regulation of the media, ethics of the press and options for restricting hate speech in the age of digital media, and its relation to freedom of expression.^[15]

The statement that received uncontestedly the most attention was that of Riigikogu member and Olympic medal winner Erki Nool who said in a private email exchange that homosexuality is an illness, the treatment or prophylactics of which is aided by “avoiding the company of practicing homosexuals”,^[16] which was met with moderate criticism in the society.

Recommendations

• Pass the Cohabitation Act regulating legal relationships between same sex partners equally to marriage relationships.
• Clearly regulate the bases for rights of same sex partners or spouses of Estonian citizens or residents who are citizens of other countries to reside and stay in Estonia.
• Define the legal status of intersexual persons and state the order of relevant medical services.
• Adopt rules offering LGBTI persons protection from hate speech and discrimination, including discrimination outside the area of employment (in education, health care, social services and access to goods and services).