11 - chapter

The situation of LGBT persons

Author: Aili Kala

The Registered Partnership Act, which was passed 9 October 2014 came to force in 2016 without implementing provisions. According to the plan, the Riigikogu was supposed to draw up the implementing provisions in order to pass them before the act came into force. The Riigikogu did not, however, reach consensus by the time the Registered Partnership Act came into force and 2016–2017 were spent amidst political debate. Several cases were brought because of the lack of implementing provisions, which had a diversifying effect on court practice – various court levels discussed several issues regulating cohabitation of same-sex families, and for the first time in Estonian court practice the Supreme Court expressed its opinion on same-sex families. Thanks to the Registered Partnership Act coming into force the families with same-sex parents can, for the first time in Estonia, adopt children within the family.

Political and institutional developments

The Registered Partnership Act came into force in the beginning of 2016. The implementing provisions, which had been planned to be ready at the same time were not passed and Urmas Reinsalu, who was the head of Pro Patria and Res Publica Union at the time, also proposed that no registered partnership contracts are registered while there are no implementing provisions in place. The Chamber of Notaries, on the other hand, explained that lack of implementing provisions did bring about legal problems, but the Registered Partnership Act would still be in force.[1] The Chamber of Notaries left it to the notaries themselves to decide whether to offer the service of authenticating registered partnership contracts, and according to the Estonian LGBT Association at least half of the notaries refuse to authenticate the contracts. Such a situation is difficult for the service consumer and creates even more legal confusion. In order to find a suitable notary, a couple wishing to conclude a registered partnership contract must submit inquiries to a number of notaries or ask the Estonian LGBT Association, which notary’s services are available.

Several versions on how to move forward with the Registered Partnership Act went through discussions at the Riigikogu in the first half of 2016. These caused political as well as social tension, especially for persons wishing to make use of the new right to conclude registered partnership contracts. The implementing provisions were sent from the plenary assembly back to the Legal Affairs Committee, where they have remained until today.[2] Parallel to the discussion on implementing provisions the draft act repealing the Registered Partnership Act also reached the plenary assembly of the Riigikogu, which was initiated by members of the Conservative People’s Party of Estonia, Centre Party and the Pro Patria and Res Publica Union, as well as the draft of the alternative couple-ship bill initiated by The Estonian Free Party.[3] The Legal Affairs Committee decided not to support the draft of the couple-ship bill and the members of the Riigikogu voted to exclude the act repealing the Registered Partnership Act by a narrow margin.[4] The dispute surrounding the Registered Partnership Act has influenced the entire political and institutional landscape and is causing tensions in coalition and the opposition to this day.

At the same time, the Pro Patria and Res Publica Union proposed amending the Constitution and taking marriage between a man and a woman under constitutional protection, but they subsequently discarded this wish.[5] In autumn of 2017 the Conservative People’s Party of Estonia proceeded with another draft act for declaring the Registered Partnership Act void, which made it to a plenary assembly session on October 17th and was subsequently voted out.

In April of 2016 the Riigikogu supported the Chancellor of Justice’s proposal to amend the Aliens Act in order to grant same-sex partners of Estonian citizens Estonian residence permits, and bring this into concordance with the Constitution. The Act allows application for a residence permit in order to live with a spouse residing in Estonia, but does not include cases where the partner or spouse is of the same sex. According to the Chancellor of Justice’s analysis such situations are in contradiction of the Constitution.  The draft act for amending the Aliens Act made it to the Constitutional Committee, however, it is still stuck there due to inactivity of members of the Riigikogu.[6]

The Estonian presidential elections started in July of 2016. Presidential candidates of all political parties, except the Conservative People’s Party of Estonia’s candidate Mart Helme expressed support for the Registered Partnership Act and confirmed that they would refuse to proclaim the act repealing the Registered Partnership Act. Support for the Registered Partnership Act and acts of laws regulating same-sex couples’ relationships has also been shown by Kersti Kaljulaid, who was elected President of the Republic. Expression of such support gives a direction for the political mainstream and the society as a whole. However, the public response to the President’s views by various groups indicate polarization of Estonia’s political landscape and the society as a whole. The discussion on protest culture at the Opinion Festival also resonated with these changes, where it was pointed out that in the near future civil movements on environment, social change and society’s open and closed nature are to be expected.[7]

Thanks to the Conservative People’s Party of Estonia making it into the Riigikogu opposition there is increasingly more polarization of the political landscape visible. The Conservative People’s Party of Estonia has introduced threats and insults to the political culture, in the plenary assembly of the Riigikogu as well as in the press. The threat issued towards the judges who made the decision in the court case regarding the Registered Partnership Act by the Conservative People’s Party of Estonia member Martin Helme marked a new low achieved by a member of the Riigikogu, and has, for the first time, been publicly criticised by the President.[8] The Conservative People’s Party of Estonia election platform at the local authority elections contained unusually aggressive rhetoric, which along with the slogan “Fire!” (Anname tuld) promises to fulfil the party’s ten commandments, which among other things contains the promise to remove homo and multicultural propaganda from schools and kindergartens[9] and refuses to allow insertion of gender neutral and homo propaganda in Tallinn’s schools and kindergartens.[10]

A positive political development worth mentioning is that for the first time openly LGBT+ people (civil activists and/or those promising to stand for interests of LGBT+ people in their campaign platforms) were among those running as candidates at local authorities’ election. For example, Keio Soomelt, the organiser of a LBGT+ film festival ran on the list of the Social Democratic Party in Rakvere, and Kristel Rannaääre, the manager of Estonian LGBT Association ran in Tallinn.[11] Experts in their fields in local governments would contribute to more effective and broader-based coverage and development of the fields.

Legislative developments

It was concluded in the Chancellor of Justice’s Annual Report of 2016 that the notaries that referred to the fact that the act can be implemented without the implementing provisions were acting lawfully. Absence of legal norms guiding register entries and other practical activities does not prevent making of decisions and entries that reflect them in practice. In the opinion of the Chancellor of Justice the gaps in legislation and lack of legal clarity can be overcome with the aid of the Constitution and existing acts of law.[12]

In 2016 the Ministry of Social Affairs submitted the act amending the Equal Treatment Act for approval. The draft intends to expand the application of the Equal Treatment so that it would apply equally on all grounds of discrimination. The planned time of the amendments entering into force was the beginning of 2017.[13] The draft act was not ready by that time; however, it had gone through the round of approval at the time of writing this report, and was getting last touches at the Ministry of Social Affairs.

The regulation of the Ministry of the Interior came into force in the beginning of 2017, which allows entering into register of the registered partners’ common children. Adoption works on the basis of the Family Law Act and it is allowed to adopt the biological or adopted child of the registered partner. Since this is a regulation of the Ministry of the Interior, it can be declared invalid once the government changes, and the issue of entering into register of children will once again crop up.[14] Regulating this issue with an act of law would provide families with the needed sense of security.

In 2017 preparations have been made to amend regulation on recognizing transgender people’s gender. This would separate the legal and medical processes of gender recognition and speed up the currently two-year process creating difficulties in everyday lives of transgender people. The amendment also intends to dissolve the medical assessment committee confirming whether the person is transgender. The amendments to be introduced are in accordance with views of Transgender Europe – which stands for transgender people’s rights across Europe – including the fact that the person’s right to change their gender is in essence a private law. Therefore, third persons, including the state, cannot give the person clearance for health service performance. The new Public Health Act is planned to come into force 1 January 2019.

Court practice

In the beginning of 2016 the first same-sex couple in Estonia who had registered a partnership was able to adopt within the family. Adoption is carried out based on provisions of the Family Law Act and announced with a court ruling, which cannot be appealed.[15] The adoption judgment was followed by the judgment of Tallinn Administrative court, which required the Ministry of the Interior to enter a cohabiting family’s adoption into population register. The court found that the situation where a family must prove parentage with a court ruling, which, considering confidentiality of adoption, should not reach other persons, is not an alternative to making an entry in the population register.[16]

The claim for compensation for damage caused by implementing provisions not having been passed also found a solution in court. Reimo Mets sued the Republic of Estonia for damage caused by failing to adopt the implementing provisions for the Registered Partnership Act and the administrative court allowed it.[17]  The Minister of Justice Urmas Reinsalu did not agree to compensation of damage and promised to appeal to circuit court.[18]

On December 28th, 2016, the decision of the circuit court requiring Harju County Government to enter into population register the same-sex marriage of an Estonian citizen and a Swedish citizen concluded in Sweden came into force.[19] According to Estonian jurists the legality of marriage of same-sex couples in Estonia concluded in a foreign country must be assessed on a case-by-case basis.[20]

In the beginning of 2017 Tallinn Administrative Court required Police and Boarder Guard Board to review a residence permit application, which had received a negative reply. According to the application, a U.S. citizen who had concluded marriage in a foreign country wished to apply for a residence permit in order to live with their same-sex spouse in Estonia.[21] The Police and Boarder Guard Board appealed the decision, however, Tallinn Circuit Court reached the same decision as the Administrative Court, and required the Police and Boarder Guard Board to issue a residence permit so far until the end of the court discussion.[22] In summer of 2017 the Supreme Court explained in its decision in the same court case jurisdiction of the court in application of initial legal protection. For the first time in Estonia’s legal practice the Supreme Court stated its opinion when it decided that the right to family life and prohibition of discrimination stated in the Constitution extends to same-sex couples. Right to family life in the context of the Constitution has not been made conditional on the gender or sexual orientation of the family members. The state has the right to forbid an alien from living with their family member in Estonia only if there is a good reason for it.[23]

According to the Estonian LGBT Association, the first transgender person went to court against the state in order to receive compensation for damages in August of 2017. The process has been declared closed and information regarding the case is not available.

Statistics and surveys

The Office of Gender Equality and Equal Treatment Commissioner ordered an extensive study from Tallinn University’s Institute of Social Studies on how LGBT+ persons in Estonia feel and assess their coping based on their sexual or gender identity. Even though the general assessment is rather positive, it is still sensed that the society is heteronormative and expects behaviour according to gender and sexual stereotypes. Coping in society is even more complicated for transgender persons than for gay, lesbian and bisexual persons.[24]

In 2017 the Estonian Human Rights Centre published the most extensive public opinion survey on LGBT issues in Estonia, which queried Estonian residents’ attitudes towards LGBT persons. The attitude towards LGBT persons has improved within last three years, primarily thanks to personal contacts.[25]

In 2016–2017 the Chancellor of Justice received a total of 95 petitions regarding equal treatment. There were five inquiries for discrimination based on sexual orientation, and four inquiries related to gender. The Gender Equality and Equal Treatment Commissioner registered in the same period a total of eight cases related to sexual orientation, and three related to gender.[26]

According to the information of the Estonian LGBT Association, in the course of the Baltic Pride Cultural Festival, which took place 6–9 July 2017, there were 13 incidents with elements of incitement of hatred committed towards LGBT+ persons, one of which ended in serious bodily injury. None of the victims registered their incidents with the Police.

According to statistics of the Chamber of Notaries, a total of 58 registered partnerships have been authenticated in the period of 1 January 2016 – 1 September 2017, but it is not known how many contracts have been concluded by same-sex couples. According to data of Estonian National Social Insurance Board there have been four in-family adoptions in 2017 where the parties have been registered partners.

Good practices

2017 can be considered to be a year of festivals. The largest international LGBT+ festival Baltic Pride took place in Tallinn 6–9 July 2017. Several events were organised in the course of this, including an international conference, and in cooperation with Tallinn Pride, for the first time after ten years – a solidarity procession, which drew attention to equal treatment and the need to adopt implementing provisions for the Registered Partnership Act.[27] The events generally passed peacefully, there were a few incidents during the procession, but the general response from the public was a positive one. Hopefully this did bring the LGBT+ community closer to the general public. LGBTI film festival Festheart took place in Rakvere 6–8 October 2017, in the framework of events for Republic of Estonia’s 100th anniversary celebrations, which intended to make Estonia more tolerant and understanding via quality cinema experiences and discussions.[28] The festival gained a lot of public attention because the project failed to receive backing from town of Rakvere, and the town residents made a number of statements in support as well as against the festival.[29]

According to information from the Estonian LGBT Association, there has been a drastic increase in research papers investigating the LGBT+ topics asking the Association for input and supervision. The research papers range from upper secondary school research papers to international Doctoral theses.

An example of a good practice that can be mentioned for the first time is the Estonian Human Rights Centre’s strategic litigation programme, which helps solve cases having importance in society via judicial and extrajudicial proceedings, in order to influence the quality of implementation practice of acts of law through the selected cases.[30] Strategic litigation has helped solve several problems that have arisen from lack of implementing provisions. The Human Rights Centre was also a cooperation partner in creating a unique pan-European mobile app for notification incidents of hate, which as a reporting platform concentrates on hate crimes and online hate speech aimed at LGBTI persons or persons perceived to belong in the LGBTI community.[31] The mobile app is an easy and fast solution for reporting and it helps human rights organisations receive adequate overview of hate crimes and hate speech in Estonia’s society and therefore enables to find more effective opportunities to help the victims.

Recommendations

  • Adopt the implementing provisions for the Registered Partnership Act, which guarantee implementation of the Act to the full extent.
  • Analyse transgender persons’ access to the Health Insurance Fund’s free services. This need is also emphasised by the Estonian Council on Bioethics with its viewpoint that sex-assignment surgery must be paid by the Health Insurance Fund.
  • Separate the legal and medical processes of gender recognition. A person must be able to change their personal data within a reasonable time regardless of medical activities. With regards to medical activities the person must have the right to decide which activities they wish and need, if at all, to feel like their perceived gender.
  • Regulate the basis for staying or living in Estonia for Estonian citizens’ or residents’ same-sex foreign partner of spouse with legislation.
  • Regulate LGBT+ persons’ protection from incitement to hatred, hate crimes and discrimination, including protection from discrimination outside the sphere of work (in education, health care, consumption of social services and access to goods and services) with legislation.
  • Carry out surveys to better chart and understand the situation of LGBT+ persons in different areas (including bullying in the school system, unequal treatment in health care system, treatment of LGBT+ persons in detention facilities).
  • Guarantee refresher training on LGBT+ topics for specialists (teachers, youth workers and health care professionals, police officers, judges and others) and add questions related to LGBT+ persons into training programmes for teachers, youth workers, police officers, judges, health care professionals and others.

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[1] „Reinsalu: ärge sõlmige rakendusaktideta seaduse ajal kooselu“ [Reinsalu: Do not register partnerships while the act has no implementing provisions!]. ERR. 05.01.2016. Available at:  http://www.err.ee/551946/reinsalu-arge-solmige-rakendusaktideta-seaduse-ajal-kooselu

[2] „Õiguskomisjon lükkas kooseluseaduse muudatuste hääletamise edasi“ [Legal Affairs Committee postponed voting on amendments to Registered Partnership Act]. ERR. 21.01.2016. Available at: http://www.err.ee/552911/oiguskomisjon-lukkas-kooseluseaduse-muudatuste-haaletamise-edasi

[3] „Riigikogus on kooseluseaduse alternatiivina laual paarkonna seadus“ [Couple-ship bill on the table in the Riigikogu as an alternative to Registered Partnership Act]. ERR. 01.02.2016. Available at: http://www.err.ee/553552/riigikogus-on-kooseluseaduse-alternatiivina-laual-paarkonna-seadus

[4] „Riigikogu lõpetas paarkonna eelnõu esimese lugemise“ [Riigikogu finished first reading of the couple-ship bill]. ERR. 16.02.2016. Available at: http://www.err.ee/554535/riigikogu-lopetas-paarkonna-eelnou-esimese-lugemise

[5] „IRL tahab traditsioonilisele abielule põhiseaduslikku kaitset“ [Pro Patria and Res Publica Union want constitutional protection for traditional marriage]. ERR. 26.01.2016. Available at: http://www.err.ee/553195/irl-tahab-traditsioonilisele-abielule-pohiseaduslikku-kaitset

[6] Õiguskantsleri aastaülevaade 2015/2016 [Chancellor of Justice’s Annual Report 2015-2016]. Available at: http://www.oiguskantsler.ee/ylevaade2016/vordoiguslikkus

[7] „Lähituleviku protestid on seotud keskkonna, sotsiaalmuutuste ning avatusega“ [Protests in the near future will have to do with environment, social change and openness]. ERR. 11.08.2017. Available at: http://www.err.ee/612494/lahituleviku-protestid-on-seotud-keskkonna-sotsiaalmuutuste-ning-avatusega

[8] „President kutsus riigikogu liiget Martin Helmet korrale“ [President called member of the Riigikogu Martin Helme to order]. Postimees. 23.03.2017. Available at: http://www.postimees.ee/4056389/president-kutsus-riigikogu-liiget-martin-helmet-korrale

[9] EKRE 10 käsku [Conservative People’s Party of Estonia’s ten commandments]. Available at: https://ekre.ee/ekre-10-kasku/

[10] Conservative People’s Party of Estonia in Tallinn. Available at: https://www.ekre.ee/kov-tallinn/

[11] Sotsial Democratic Party’s candidates for local authorities. Available at: http://valimised2017.sotsdem.ee/et/

[12] Õiguskantsleri aastaülevaade 2015/2016 [Chancellor of Justice’s Annual Report 2015-2016]. Võrdõiguslikkus [Equality]. Available at: http://www.oiguskantsler.ee/ylevaade2016/vordoiguslikkus

[13] Õiguskantsleri aastaülevaade 2015/2016 [Chancellor of Justice’s Annual Report 2015-2016]. Õigusloomest [On legislative drafting]. Available at: http://www.oiguskantsler.ee/ylevaade2016/oigusloomest

[14] „Koosellujate lapsendusvõimalus püsib kohtuotsustel ja leplikul siseministeeriumil“ [Registered couples’ adoption opportunities are based on a court decision and an acquiescent Ministry of the Interior]. Eesti Päevaleht. 27.02.1017. Available at: http://epl.delfi.ee/news/eesti/koosellujate-lapsendusvoimalus-pusib-kohtuotsustel-ja-leplikul-siseministeeriumil?id=77361882

[15] „Eestis lapsendas esimene samasooline paar kaks last“ [The first same-sex couple to adopt two children in Estonia]. ERR. 29.03.2016. Available at: http://www.err.ee/557008/eestis-lapsendas-esimene-samasooline-paar-kaks-last

[16] „Kohus: riik peab kandma kooselupere lapsendamise rahvastikuregistrisse“ [Court: state has to enter the adoption of a registered partnership family in the population register]. Pealinn. 21.02.2017. Available at: http://www.pealinn.ee/newset/kohus-riik-peab-kandma-kooselupere-lapsendamise-rahvastikuregistrisse-n186943

[17] „Riik peab maksma kooseluseaduse rakendamata jätmise eest kahjutasu“ [State must pay compensation for not implementing the Registered Partnership Act]. ERR. 07.02.2017. Available at: http://www.err.ee/582082/riik-peab-maksma-kooseluseaduse-rakendamata-jatmise-eest-kahjutasu

[18] „Reinsalu lubab kahjunõude kooseluseaduse rakendamata jätmise eest edasi kaevata“ [Reinsalu promises to appeal for damages for failing to implement Registered Partnership Act]. ERR. 08.02.2017. Available at: http://www.err.ee/582157/reinsalu-lubab-kahjunoude-kooseluseaduse-rakendamata-jatmise-eest-edasi-kaevata

[19] „MTÜ: kohus kohustas maavalitsust samasooliste abielu registreerima“ [NGO: court required county government to register same-sex marriage]. Postimees. 24.01.2017. Available at: http://www.postimees.ee/3991001/mtu-kohus-kohustas-maavalitsust-samasooliste-abielu-registreerima

[20] „Õigusteadlased: samasooliste abielude kehtivust tuleb hinnata juhtumipõhiselt“ [Jurists: validity of same-sex marriage should be evaluated on a case-by-case basis]. ERR. 28.01.2017. Available at: http://www.err.ee/581514/oigusteadlased-samasooliste-abielude-kehtivust-tuleb-hinnata-juhtumipohiselt

[21] „Samasoolise partneri juurde kolimiseks elamisluba taotlenud naine sai PPA üle kohtuvõidu“ [Woman applying for residence permit to live with a same-sex partner won over Police and Border Guard Board in court]. Postimees. 25.01.2017. Available at: http://www.postimees.ee/3992027/samasoolise-partneri-juurde-kolimiseks-elamisluba-taotlenud-naine-sai-ppa-ule-kohtuvoidu

[22] „Kohus otsustas: eesti-ameerika lesbipaar saab kohtuvaidluse lõpuni koos Eestis elada“ [Court decided: Estonian-American lesbian couple can live together in Estonia until the end of court dispute]. Postimees. 15.04.2017. Available at: http://www.postimees.ee/4080639/kohus-otsustas-eesti-ameerika-lesbipaar-saab-kohtuvaidluse-lopuni-koos-eestis-elada

[23] „Riigikohus: ka samasoolistel paaridel on õigus perekonnaelu kaitsele“ [Supreme Court: same-sex couples also have the right to family life]. Delfi. 27.06.2017. Available at: http://www.delfi.ee/news/paevauudised/eesti/riigikohus-ka-samasoolistel-paaridel-on-oigus-perekonnaelu-kaitsele?id=78691582

[24] „LGBTQ inimeste igapäevane toimetulek ja strateegilised valikud Eesti ühiskonnas“ [LGBTQ persons’ daily coping and strategic choices in Estonian society]. Office of Gender Equality and Equal Treatment Commissioner. Available at: http://www.vordoigusvolinik.ee/wp-content/uploads/2016/03/LGBT_uuringuraport_LOPLIK_veeb.pdf

[25] „Uuring: Eesti inimestel on üha enam kokkupuuteid seksuaalvähemustega“ [Survey: Estonian people have more and more contact with sexual minorities]. Delfi. 23.05.2017. Available at: http://www.delfi.ee/news/paevauudised/eesti/uuring-eesti-inimestel-on-uha-enam-kokkupuuteid-seksuaalvahemustega?id=78306544

[26] Õiguskantsleri aastaülevaade 2016/2017 [Chancellor of Justice’s Annual Report 2016-2017]. Muud ülesanded [Other tasks]. Available at: http://www.oiguskantsler.ee/ylevaade2017/muud-ulesanded

[27] „Baltic Pride’i rongkäik näitab paljudele, et nad ei ole üksi“ [Baltic Pride procession shows many people that they are not alone]. Eesti Päevaleht. 07.07.2017. Available at: http://epl.delfi.ee/news/kultuur/baltic-pridei-rongkaik-naitab-paljudele-et-nad-ei-ole-uksi?id=78792212

[28] Festheart film festivali introduction. Available at: https://www.ev100.ee/et/festheart

[29] „Eesti esimene seksuaalvähemuste filmifestival jäi Rakvere linna toeta“ [Estonia’s first sexual minorities’ film festival did not gain support of town of Rakvere]. ERR. 15.02.2017. Available at: http://menu.err.ee/294387/eesti-esimene-seksuaalvahemuste-filmifestival-jai-rakvere-linna-toeta

[30] Estonian Human Rights Centre. Strategic litigation. Available at: https://humanrights.ee/teemad/vordne-kohtlemine/strateegiline-hagelemine/

[31] Estonian Human Rights Centre. Valmis unikaalne vaenust teavitamise äpp [A unique app for notifying hate created]. Available at: https://humanrights.ee/2017/10/valmis-unikaalne-vaenust-teavitamise-app/


Author

  • Aili Kalal on kõrgharidus õigusteaduses ja ta tegutseb juba aastaid riigikaitse valdkonnas juristina. Väga tähtis on talle ka kodanikuühiskonna areng ning seetõttu on ta pikaaegselt panustanud Eesti LGBT Ühingu tegevusse. Seal on ta olnud nii vabatahtlik, juhatuse liige kui ka president. Praegu tegeleb ta ühingus huvikaitse teemade arendamisega ja pakub LGBT+ kogukonna liikmetele juriidilist tuge.