11 - peatükk

Rights of LGBT persons

Helen Talalaev

2014 will go down in history with the passing of the Cohabitation Act (Civil Partnership Act) on October 9th. The time preceding it was spent focusing primarily on regulating the relationships of same sex couples – on the level of politicians, ministries, opinion leaders as well as civil society. Passing the implementation act was left in 2015, which had not been submitted with the Riigikogu at the time of writing this report. Parallel to this an important development was taking place in the Ministry of Social Affairs since the summer of 2014 – initiation of creating the development plan, which among other topics sets up strategic goals, methods and activities for creating a more equal society. However, by autumn of 2015 it has become clear that topics related to equal treatment will be significantly reduced in the development plan.

Political and institutional developments

In July of 2014 the Ministry of Social Affairs submitted a proposal to the government to compile a “Social Security, Inclusion and Equal Opportunities Development Plan 2016–2023” (by now it has been renamed the wellbeing development plan). The government approved the proposal and the ministry set about preparing the development plan. A steering committee was formed for this purpose, consisting of, among others, the representatives of the civil society, including Estonian Human Rights Centre and the Estonian LGBT Association. According to the working version of 22 September 2015 it gathers together the work, social protection, gender equality and equal treatment policies’ strategic goals for years 2016–2023. The development plan will give a comprehensive view of the main challenges, goals and courses of action in the aforementioned political areas.[1]

The meeting of the steering committee on 1 October 2015 revealed the worrying development that the Ministry of Social Affairs intends to lose the sub-goal 5 “A society valuing diversity and being considerate differences, where following the principle of equal treatment of people is guaranteed” as a separate sub-goal and divide it between the other sub-goals. Since the sub-goals 1–4 have to do with employment, social protection, welfare services and gender equality, the question inevitably arises how it is possible to achieve the sub-goal 5 through them in the full extent. Their expectation that the sub-goal 5 will be preserved has been expressed in writing by the Estonian Human Rights Centre as well as Estonian LGBT Association, however, at the time of writing the report it is not yet clear which development plan the Ministry of Social Affairs will go ahead with.

At the 2015 Parliamentary elections the Estonia’s Conservative People’s Party made it into the parliament, having partially based their campaign on the message “down with the Cohabitation Act”. The party’s rhetoric is clearly aimed against same sex couples and the rights of LGBT persons in general. In their conservative programme the Conservative People’s Party have defined family as: “We support Christian values and protect traditional, wholesome family model consisting of a mother, a father and children. When adopting children we consider that every child has an inalienable right to a normal family life.”[2] The Conservative People’s Party has 7 seats at the parliament; they have not increased their support after making it into the Riigikogu. In 2015 they have channelled their main attention into activities against refugees and immigration. With their appearance in Riigikogu such derogatory expressions towards gays and lesbians have made it into political rhetoric as for example “homo steamroller drivers”[3] or “let’s topple this social liberalist coalition of queers”.[4] Time will tell what the future brings for the Conservative People’s Party and whether they will have similar success as analogous parties in Finland, Sweden and in several other countries in Europe.

Legislative developments

On 17 April 2014 forty members of the parliament presented Riigikogu the draft act of the Cohabitation Act. The first reading was successfully passed in June, the second and third in October. The act of law was passed on 9 October 2014. The Cohabitation Act enables two adults to legally register their cohabitation, the draft act extends to couples of the same sex as well as different genders. This is also the only way for same sex couples to register their cohabitation, offering them important protection and acknowledgement, which they did not have so far. The Cohabitation Act enables adoption within the family, thereby giving same sex parent families with a child with only one parent with parental rights the opportunity to have the other registered partner adopt the child. This significantly improves the safety of children growing in such families.

In 2015, in order for the Cohabitation Act to come into force in the full extent the implementation act along with all the amendments that have to be made in other acts of law has to be passed. The Minister of Justice Urmas Reinsalu announced upon entering into office in April of 2015 that he has no intention of working on the implementation act.[5] Yet precisely the government, and in case of the Cohabitation Act – the Ministry of Justice, ought to be responsible for implementation of the act – the legislator did express its will by passing the Cohabitation Act. At the time of writing this report the draft had not been presented to the Riigikogu, but it is still likely to be presented in October of 2015, and again by members of the Riigikogu, as had been the case with the draft act to the Cohabitation Act.[6] If the implementation act is not passed in 2015, court cases are probably to be expected in 2016 when partners wishing to register their cohabitation will sue the state for failure to act.

The Ministry of Social Affairs has put together an intent to develop to amend the Equal Treatment Act to guarantee protection from discrimination on the basis of sexual orientation, beliefs, age and disability also outside of work, for example, in education, in social spheres, health care and accessibility to goods and services. With that the long awaited amendment of the Equal Treatment Act to harmonise basis of discrimination has begun, however, this amendment is not likely to apply before 2017.

The lacking regulation on incitement of hatred and hate crimes in the Penal Code, which several previous annual human rights reports have drawn attention to became topical again in relation to the setting fire to of the Accommodation Centre for Asylum Seekers in Vao village in the beginning of September in 2015. Minister of Justice Urmas Reinsalu pointed out the need to review the concept of hate crimes: “The purpose of an act of violence as a hate crime must have an element of aggravation of punishment in penal power. I will assemble representatives of various organisations related to human rights, the media and public opinion in order to discuss proposals.”[7] We must carefully observe which activities the Minister of Justice will come to in this question.

In the 2013 annual human rights report Marianne Meiorg and Ann Väljataga pointed out a contradiction between the Constitution of the Republic and the Aliens Act: „the Chancellor of Justice received three similar applications [in 2012] asking to check whether the Aliens Act is in accordance with the constitution in that it does not allow same sex partners of Estonian citizens to take residence in Estonia.“[8] The explanations of the Minister of Interior Affairs to the request for information of Chancellor of Justice did not convince the latter, and on 4 November 2013 the Chancellor of Justice, in his memorandum, recommended initiating amending the Aliens Act in order to bring it into accordance with the constitution. The act has not been amended as of October 2015, however Chancellor of Justice Ülle Madise who took office in 2015 has stated in her letter of 24 August 2015 that she “has taken this issue into focus and is planning to take steps of her own in order to initiate bringing the Aliens Act into accordance with the constitution.”[9] Therefore, hopefully in the next annual human rights report there is reason to write of greater progress.

Court practice

The cases mentioned in previous annual human rights reports (refusal to issue a certificate of capability to marry, division of property of same sex partners after the end of cohabitation) have ended without success after the Supreme Court refused to accept the claims. The complaint of representative of NGO Sexual Minorities Protection Union (SEKY) Reimo Mets regarding recognition of same sex marriage concluded in a foreign country was added to that list in August of 2015.

At the moment there is a case in court on the initiative of the office of Gender Equality and Equal Treatment Commissioner regarding protection of rights of a transgender person in the process of changing their name.[10]

Statistics and surveys

In 2014 one complaint, request for explanation or memorandum was submitted with the office of the commissioner regarding sexual orientation. A surprising trend can be noted throughout the years – since 2013 the number of applications has reduced. In 2010 there were 11 applications, in 2011 there were 19, in 2012 there were 23, in 2013 there were 4 applications regarding sexual orientation, and 1 regarding gender identity.[11]

The attitude towards LGBT persons was investigated via the public opinion poll[12] carried out by Turu-Uuringute AS in 2014 in the course of the Tallinn Law School at Tallinn University of Technology project “Diversity Enriches”. The poll reveals that attitudes have not changed significantly in comparison to the comparative poll[13] from two years ago. It was a positive surprise that 64% of Estonia’s residents believed that gays and lesbians should be protected from discrimination by law also outside employment, only 26% were against it. The support for registering same sex cohabitation has decreased a little – from 46% in 2012 to 40% in 2014, especially among Russian speaking respondents.

Good practices

Several civil initiatives supporting passing the Cohabitation Act in 2014 will be remembered. Immediately before the first reading of the Cohabitation Act at the Riigikogu the Facebook page „Aitäh, aga minu traditsiooniline perekond ei vaja kaitset“[14] was created, which gathered thousands of supporters within a few days, soon reaching 18,000 supporters. This page helped show that the Cohabitation Act had great support within society, which had not had a voice in the previous debates.

Immediately before the third reading of the Cohabitation Act people were invited as civil initiative to donate money in order to gift flowers to members of the parliament on the day of the third reading. The action „Ütle läbi lillede“ (say it with flowers) was born.[15] Thousands of euros were collected as a result, and so many flowers could be bought that the square in front of Riigikogu was decorated with hundreds of colourful blooms.[16] This thoroughly positive message and support to Riigikogu encouraged supporters of the Cohabitation Act give their vote for the act. The people against the Cohabitation Act had also gathered at Toompea at the same time, but their opposing messages found no support.

Initiating the draft act of the Cohabitation Act by the members of the Riigikogu can also be pointed out as a good practice. Most of the draft acts originate in the government, but since the government showed no initiative in this topic the cooperation between political parties at Riigikogu functioned well, and as a result the draft act of the Cohabitation Act along with 40 signatures of parliamentarians was presented to the Riigikogu for processing.

Noteworthy public discussions

One of the main topics of discussions in 2014 was the Cohabitation Act, which was supported by and spoken out in favour of by politicians, officials, opinion leaders, leaders of civil society, authors, musicians and several others. Civil initiatives that brought understanding and positivity to the debate have been mentioned as good practices above, but the discussions also have another side, which culminated at a demonstration at Toompea on 5 October 2014 for protection of family and democracy,[17] where one of the more memorable slogans was “aberration must be treated”. At the same time tens of people spoke out in support of a caring and tolerant society, several did so via video clips: https://www.youtube.com/user/KOOS2014/videos. These statements illustrate sides, which came about in the cohabitation debate and which will continue in 2015 in debates on refugees and immigration. We are yet to find the common ground as society.

Recommendations

  • Adopt the implementation act of the Cohabitation Act, which guarantees the coming into force of the Cohabitation Act in the full extent from 1 January 2016.
  • Retain the sub-goal of equal treatment and promotion of tolerance in development plan of wellbeing in order to guarantee increasing awareness in equal treatment topics, and the increase of tolerance in society as a whole.
  • Regulate clearly the foundations for residence and basis for stay rights of foreign citizen same sex partners or spouses of Estonian citizens or residents in Estonia.
  • Adopt rules offering LGBT persons protection from hate speech and discrimination, including protection from discrimination outside employment (in education, health care, consuming social services and accessibility to goods and services).
  • Conduct research to better chart and understand the situation of LGBT persons in various fields (including bullying in school system, unequal treatment in health care system, treatment of LGBT persons in places of detention).
  • Guarantee in-service training for specialist (teachers, youth workers, health care workers, policemen, judges, etc.) on LGBT topics, and add questions related to LGBT persons in training programmes of for example, teachers, youth workers, policemen, judges, health care workers.

 

[1] 22 September 2015 working version of wellbeing development plan. Sent electronically to members of the steering committee.

[2] Konservatiivne programm [Conservative programme]. Available at: http://ekre.ee/konservatiivne-programm/.

[3] „Mart Helme: homoteerulli juhid ei sõida kooseluseaduse rakendusakte läbi surudes üle mitte EKRE seitsmest vaprast, vaid rahva enamusest“ [Mart Helme: homo steamroller drivers don’t only run over the seven brave ones of the Conservative Party while pushing the implementation act of the Cohabitation Act, but the majority of the people]. Delfi. 25.04.2015. Available at: http://www.delfi.ee/news/paevauudised/eesti/mart-helme-homoteerulli-juhid-ei-soida-kooseluseaduse-rakendusakte-labi-surudes-ule-mitte-ekre-seitsmest-vaprast-vaid-rahva-enamusest?id=71328005.

[4] „Madison: kukutame selle sotsiaalliberalistliku lillade koalitsiooni! [Madison: let’s topple this socialist liberalist coalition of queers!] Postimees. 25.04.2015. Available at: http://poliitika.postimees.ee/3169845/madison-kukutame-selle-sotsiaalliberalistliku-lillade-koalitsiooni.

[5] „Võimuerakonnad on kooseluseaduse rakendussätete osas eri meelt“ [The parties in power disagree on implementation provisions of the Cohabitation Act]. Postimees. 22.04.2015. Available at: http://www.postimees.ee/3165323/voimuerakonnad-on-kooseluseaduse-rakendussatete-osas-eri-meelt.

[6] „Kriitilised 51 häält“ [The critical 51 votes]. Postimees. 7.10.2015. Available at: http://poliitika.postimees.ee/3354101/kriitilised-51-haalt.

[7] „Ülevaade: kuidas reageerisid poliitikud Vao pagulaskeskuse põlengule?“ [Overview: how did politicians react to the fire at Vao accommodation centre for asylum seekers] Postimees. 3.09.2015. Available at: http://arvamus.postimees.ee/3315573/ulevaade-kuidas-reageerisid-poliitikud-vao-pagulaskeskuse-polengule.

[8] Meiorg, M., Väljataga, A. „Seksuaalvähemuste olukord“ väljaandes “Inimõigused Eestis 2013“ [Situation of sexual minorities in the 2013 annual human rights report]. Available at: https://humanrights/inimoiguste-aruanne-2/inimoigused-eestis-2013/seksuaalvahemuste-olukord/.

[9] Chancellor of Justice’s e-mail „Vastus Eesti LGBT Ühingu pöördumisele“ [response to inquiry of Estonian LGBT Association]. 24.08.2015.

[10] „Soolise võrdõiguslikkuse ja võrdse kohtlemise voliniku 2014. aasta tegevuse aruanne“ [2014 annual report of the Gender Equality and Equal Treatment Commissioner]. Available at: http://www.vordoigusvolinik.ee/wp-content/uploads/2015/06/SVV-Aastaaruanne-2014.pdf.

[11] Voliniku tegevuse aasta ülevaated [yearly overview of the commissioner’s activities]. Available at: http://www.vordoigusvolinik.ee/voliniku-too/aasta-tegevuse-ulevaated/.

[12] „Avaliku arvamuse uuring hoiakutest seksuaalvähemuste suhtes“ [public opinion poll on attitudes towards sexual minorities]. 2014. Available at: http://www.erinevusrikastab.ee/tegevused/uuringud/avaliku-arvamuse-uuring-hoiakutest-seksuaalvahemuste-suhtes-2014/.

[13] „Avaliku arvamuse uuring hoiakutest seksuaalvähemuste suhtes“ [The public opinion poll on attitude towards sexual minorities]. 2014. Available at: http://www.erinevusrikastab.ee/tegevused/uuringud/avaliku-arvamuse-uuring-hoiakutest-seksuaalvahemuste-suhtes/.

[14] [Thank you, but my traditional family needs no protection] https://www.facebook.com/traditsioon

[15] The action’s Facebook page: https://www.facebook.com/events/1698825217009748/.

[16] „Galerii: lilled ja plakatid Toompeal ehk kooseluseaduse poolt ja vastu“ [Gallery: flowers and slogans in Toompea, or for and against the Cohabitation Act]. Postimees. 9.10.2014. Available at: http://www.postimees.ee/2948133/3416073.

[17] „Aasta kõige teravam meeleavaldus: Toompeal protestiti kooseluseaduse vastu!“ [The fiercest demonstration of the year: protesting against the Cohabitation Act in Toompea] Delfi. 5.10.2014. Available at: http://www.delfi.ee/news/paevauudised/eesti/aasta-koige-teravam-meeleavaldus-toompeal-protestiti-kooseluseaduse-vastu?id=69880533.

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