9 - CHAPTER

The situation of LGBT persons

Author: Aili Kala

Key topics

  • Development of LGBT+ persons’ rights has largely stopped and improved to a small extent. Legislative power has not adopted strategies considering LGBT+ persons or the European Union proposals in the area.
  • No laws on elimination of discrimination and equal treatment of LGBT+ people were adopted in the period under review, nor were existing shortcomings eliminated. On the other hand, some of the infringements have been remedied by judgments of the Supreme Court and courts of lower levels.
  • The political climate regarding LGBT+ persons and their rights has become more hostile in statements and actions, however, the attitude of Estonia’s residents towards LGBT+ persons and the necessity of the Registered Partnership Act has improved.

Political and institutional developments

After the elections that took place in spring of 2019 the coalition was formed by the Centre Party, Pro Patria and the Conservative People’s Party of Estonia (EKRE). The coalition agreement regulated to an unusual degree of specificity the intent to conduct a referendum in 2021 at the municipal council elections, which proposes to amend the Estonian constitution to define marriage as a union between a man and a woman.[1] The coalition’s plan follows the tendencies that have taken place in Europe in the past few years, where, for example, Poland and Hungary have amended their constitutions that way. Estonia has this far been conservative in amending the constitution and in public opinions the views of creators of the text of the constitution and jurists refer to the fact that if the constitution is amended the effect and general need of it should be thoroughly analysed.

In 2018 the European Commission published the yearly report on measures increasing equality of LGBTI (lesbian, gay, bisexual, transgender and intersex) persons, which emphasises the need for a EU equal treatment directive that would expand the protection of LGBTI persons in Member States from discrimination in education, social protection and access to and provision of goods and services, including housing.[2] The need for adopting the directive is also referred to by measures prepared for the European Union and the Member States based on the 2019 European Union for Fundamental Rights (FRA) report. The FRA report shows that discrimination and inequalities based on various grounds occur in everyday life throughout the EU. These results also consistently demonstrate that people experiencing discrimination rarely report it.[3]

The Estonian LGBT Association drew up a report and recommendations to the government on equal treatment of and combating discrimination against LGBT+ persons,[4] according to which the state should employ measures in order to meet the requirements of the Council of Europe’s Recommendations on LGBTI rights and discrimination. The target groups for the extensive analysis are policy makers and state officials, and they include Estonian laws and practices. The report assesses the changes that have taken place in Estonia’s governance in regards to implementation of the recommendations and highlight areas that need further work.

Legislative developments

In comparison to the previous reporting period the legislative developments in the field have slowed.[5] The act amending the Equal Treatment Act, which is intended to expand the application of the Equal Treatment Act to make it uniform in case of all the bases for discrimination that was also discussed in the previous annual report, has still not been passed after years of being processed in the government, because of political opposition. The same situation is going on with the process of legitimising the regulation on gender recognition of transgender persons, where the proposed changes planned with the new Public Health Act were taken out of the draft altogether.

The provisions of the Penal Code regulating expressions of hostility required amendment for years now – and the LGBT+ persons need more effective protection from incitement to hatred. The scope of the framework decision on combating forms and expressions of racism and xenophobia by means of European Union criminal law also extends to criminal measures imposed for criminal offences against LGBT+ persons, which would provide that the motive of hate crime would be an aggravating circumstance in determining the sentence.[6] Despite the fact that the framework decision is mandatory for the Member States to transpose (and transposition of which is a possible precondition to amending the Penal Code) Estonia is still one of the few countries that has not transposed the framework decision, and the country is threatened by infringement proceedings.

Stagnation was also the fate of the adoption of implementing provisions for the Registered Partnership Act as there was no consensus in the coalition of the previous government nor the current one, and therefore it was decided that legitimate implementation of the Registered Partnership Act will not be dealt with. Despite that, progress has been made with a few individual court cases, which are discussed further below.

Court practice

In the spring of 2018 the question regarding validity of the Registered Partnership Act, which was occasionally raised in debates, got an answer. The Supreme Court explained in its regulation that despite lack of implementing provisions the Registered Partnership Act is a valid act of law and it is a part of Estonia’s legal order. In the chamber’s appraisal, a general finding that implementing provisions for the Registered Partnership Act have not been adopted is not sufficient for identifying an unconstitutional gap. The court has the obligation, despite the work not done by Riigikogu, to implement the Registered Partnership Act in individual cases, and, if necessary, to resolve issues based on the general principles of law.[7]

Since entry into force of the Registered Partnership Act the cohabiting families have been faced with the situation where the same-sex partner of an Estonian citizen has not been given the opportunity to join the family and obtain a residence permit to live in Estonia. The Aliens Act allowed the application of a residence permit to settle with a spouse residing in Estonia, but did not allow this in case of a same-sex cohabiting partner or spouse. This issue reached the Constitutional Review Chamber of the Supreme Court and resulted in a judgment in 21 June 2019, which declared the Aliens Act unconstitutional and void in the part where it precludes granting a temporary residence permit to an alien for settling with their same-sex Estonian citizen registered partner in Estonia.[8]

The question that has often arisen in public – which rights the cohabitating families are deprived of – has so far not had an exhaustive answer, as situations arising from unequal or unconstitutional treatment by the state have not yet been fully demonstrated. However, the practice has shown that they do come up over time and need to be solved. For example, a spouse raising a child under 8 years old has the right to state health insurance, but in the absence of implementing provisions of the Registered Partnership Act the state has refused to extend that right to the same-sex parent who entered a registered partnership. In autumn of 2019 the Tallinn Administrative Court declared unconstitutional the provision of the Social Tax Act treating parents who entered into a registered partnership differently from married parents.[9]

There were also changes to treatment of persons needing international protection. In the beginning of 2018, the European Court of Justice passed a judgment recognising the conduct of psychological review of LGBT+ persons in order to ascertain their sexual orientation to be in violation of human rights. If a need for it arises the officials may base their assertions on documentary proof and the person’s statement.[10]

Statistics and surveys

Another public opinion study on LGBT+ persons published by the Estonian Human Rights Centre in 2019 shows that the attitude of Estonian residents to lesbians and gays has not changed significantly in comparison to that of two years ago, but more than half of respondents consider homosexuality either completely or rather unacceptable. For the first time there are more proponents than opponents to the Registered Partnership Act.[11] To sum it up, this means that even though homosexuality is unacceptable for the majority, half of the people still find it necessary that there is a form of registered cohabitation for same-sex couples.  In contrast, the European Commission’s Eurobarometer survey on LGBTI persons published in May of 2019 showed an improvement in attitude compared 2015 on nearly all the issues. More than half the respondents thought that LGB persons should have equal sexual rights with heterosexual persons.[12]

In summer of 2018 the Estonian LGBT Association conducted a study on safety and inclusion of the school environment among LGBT+ students in basic and upper schools, as well as in vocational education institutions. The results of the first ever study show that based on the experience of participants of the survey they are experiencing insults, mental and physical violence and lack of support from teachers. As many as 68% of LGBT+ students have experienced mental harassment because of their sexual identity, gender identity or gender expression. It is the school’s duty to provide good quality education and correct information in a secure environment, but 61% of respondents noted that the school staff never intervened when someone made homophobic remarks and 42% said that LGBT issues had never been touched upon at their school.[13]

Trends

In autumn of 2019 a number of active attacks took place against the Estonian LGBT Association and the LGBT+ community with the purpose of  prohibiting the participation of the association at a call for proposals for providing a public service,[14] silencing and marginalizing the LGBT+ community and creating an air of fear for the community and the activists.

Members of  administration and supporters of the government party EKRE protested against a showing of an LGBT+ film in Pärnu,[15] organised a protest in Tartu against a youth centre’s event on the LGBT+ topic,[16] thereby harassing youth workers and young people and ruining the Association’s information event.[17] Considering this background, the foundation  Perekonna ja Traditsioonide Kaitseks (For the Protection of Family and Tradition) has launched a petition campaign against the association[18] that contains unfounded statements and exaggerations and the non-profit organisation Ühiskonnauuringute Instituut has ordered a survey on the Association’s funding,[19] where the phrasing of the question is based on lies and provides a means to attack the Association.

EKRE belongs to the government along with the Centre Party and Pro Patria, with the Centre Party being the prime minister’s party. The few reactions to EKRE’s statements on social media have not changed their views or ended the attacks. On the contrary, EKRE’s statements have become more aggressive and the likelihood that EKRE’s and their supporters’ attacks against the LGBT+ community will become more frequent and aggressive creates fear for persecution in the LGBT+ community. A new tendency has arisen in society where one government party has taken it upon themselves to create an atmosphere of fear and violate people’s sense of security, and their coalition partners have not wanted to or have not been able to change that. An attack on one target group and one NGO is an attack on the security of the entire society and the civil society.

Recommendations

  • Adopt the implementing provisions for the Registered Partnership Act, which guarantee implementation of the Registered Partnership Act in the full extent.
  • Separate the medical and legal processes in recognising the gender of a transgender person. The person must be able to change their personal data within a reasonable period of time irrespective of the medical procedures. In case of medical procedures, the person must retain their right to decide which procedures they wish and need, if any, to make them feel in accordance with their perceived gender.
  • Regulate the protection of LGBT+ persons from incitement to hatred, hate crimes and discrimination, including protection from discrimination outside of employment (in education, healthcare and consumption of social services and accessing products and services) with legislation.
  • Carry out studies to better map out and understand the situation of LBGT+ persons in different areas (including bullying in the school system, unequal treatment in the healthcare system, treatment of LGBT+ persons in custodial institutions).
  • Provide specialist (teachers, youth and healthcare professionals, police officers, judges, etc) further training on LGBT+ issues and include issues related to LGBT+ persons in education programmes for teachers, youth workers, police officers, judges, healthcare professionals, etc.
  • More effectively include LGBT+ issues and advocacy organisations in strategic decision-making and policy-shaping.

Case description

In 2015 Kristiina and Sarah Raud entered into a marriage in the USA and settled in Estonia. The state did not recognise the marriage of two persons of the same sex and refused to issue Sarah a residence permit. Therefore, the couple turned to court and in 2018 the Supreme Court’s judgment came into force, according to which Kristiina and Sarah’s marriage is not recognised in Estonia and it cannot be the basis for issuing a residence permit. Although the judgment did not solve their problem the Supreme Court, for the first time, took the view that the requirement for protection of family life is not related to the sex or sexual orientation of the family members.[20] Taking this into account, Kristiina and Sarah entered into a registered partnership in Estonia, and because shortly before that, in another case, the Supreme Court had passed the judgment declaring the provision of marriage obligation in the Aliens Act unconstitutional,[21] Sarah had the opportunity to apply for a residence permit in Estonia based on the registered partnership contract.[22] Estonian Human Rights Centre supported the couple’s journey in the course of their strategic litigation programme. The case shows how in guaranteeing human rights the courage of the people, the dedication of the civil society and fairness and credibility of the court system can overcome the inaction of the Estonian legislator.


[1] Eesti Keskerakonna, Eesti Konservatiivse Rahvaerakonna ning Isamaa Erakonna valitsusliidu aluspõhimõtted 2019-2023 [Basic principles of the Estonian Centre Party, Pro Patria and the Conservative People’s Party of Estonia Conservative government coalition].

[2] European Commission. 2018. List of actions to advance LGBTI equality, 18.03.2019.

[3] The European Union Agency for Fundamental Rights. 2019. Fundamental Rights Report 2019 FRA opinions.

[4] Council of Europe. 2010. Compliance Report on the implementation of Committee of Ministers’ Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity in Estonia, 31 February 2010.

[5] Ibid.

[6] Council of Europe. 2008. Council Framework Decision 2008/913/JHA.

[7] Constitutional Review Chamber of the Supreme Court 10 April 2018 regulation no 5-17-42.

[8] Supreme Court en banc 21 June 2019 judgement no 5-18-5.

[9] European Human Rights Centre. 2019. Kohus: sotsiaalmaksuseadus on vastuolus põhiseadusega [Court: the Social Tax Act is in contradiction with the constitution], 10 September 2019.

[10] European Court of Justice. 2019. Case C-473/16, F v. Bevándorlási és Menekültügyi Hivatal, 25 January 2018.

[11] European Human Rights Centre. 2019. LGBT teemaline avaliku arvamuse uuring [Public opinion poll on the LGBT topic].

[12] European Commission. 2019. Eurobarometer on the social acceptance of LGBTI people in the EU.

[13] Estonian LGBT Association. 2019. Anneta, et LGBT+ noortel oleks koolis turvaline! [Donate to make school safe for LGBT+ young persons!]

[14] ERR. 2019. EKRE: LGBT ühingu rahastamine hasartmängumaksust on ebaseaduslik [Funding of the LBGT Association from gambling tax is illegal], 26 October 2019.

[15] Nestor. S. 2019. Palun, teeme seakisa kultuuriklubi Tempel kaitseks! [Please, let’s make noise for protection on the culture club Tempel!], 05 November 2019.

[16] ERR. 2019.  EKRE meeleavaldus Tartus tõi Raekoja platsile ka LGBT-toetajaid [EKRE’s demonstration brought also supporters of LGBT people to Tartu Town Hall square], 01 November 2019.

[17] Keskküla, R. 2019. Ekrelased nurjasid LGBT-ühingu teavitusürituse, kohale kutsuti politsei [EKRE people failed the information event of the LGBT Association, police was called], Pärnu Postimees, 05 November 2019.

[18] Nagel. R., Raal, K. 2019.  Varro Vooglaid alustas petitsioonikampaaniat LGBT ühingult toetuse võtmiseks: homoaktivistid mõjutasid tüdrukut sugu vahetama [Varro Vooglaid initiated a petition campaign to remove support from the LGBT Association: gay activists influenced a girl to change her gender], Delfi, 05 November 2019.

[19] Ühiskonnauuringute Instituut. 2019. Koalitsiooni toetajad on LGBT Ühingu riikliku rahastamise osas üksmeelel, abordi riikliku rahastamise osas mitte [Supporters of the coalition agree on the state funding of the LGBT Association, but not on the state funding of abortion].

[20] Administrative Law Chamber of the Supreme Court 27 May 2017 regulation no 3-3-1-19-17.

[21] Supreme Court en banc 21 June 2019 judgement no 5-18-5.

[22] European Human Rights Centre. 2019. Võit kooselupaaridele [A win for registered partners].


Author

  • Aili Kala töötab riigikaitse ja inimõiguste valdkonna juristina.  Ta on Eesti LGBT Ühingu huvikaitseekspert ja juriidiline nõustaja, kus ta teeb koostööd poliitikakujundajate ja vabaühendustega ning pakub LGBT+ kogukonnale ja nende lähedastele juriidilist tuge. Aili on ka õiguskantsleri inimõiguste nõukoja liige.
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