9 - Chapter

The situation of LGBT persons

Author: Aili Kala

The situation has remained the same.

Key issues

  • The widespread and long-standing gridlock within the area of LGBT+ human rights needs to be turned into progress. For many years development has taken place only at the level of court judgements.
  • The development of human rights at the legislative level is something which has been widely politicised and does not rely sufficiently on research and recommendations from experts in the field.
  • The state does not pay sufficient attention to reducing the growing hatred in society, a potential reason for individuals who identify as LGBT+ desiring to remain discreet about their identity.

Political and institutional developments

The issues of equal treatment were still being influenced by the activities of the coalition of Keskerakond, EKRE, and Isamaa (IKE). Funding for human rights NGOs was attacked. The Ministry of Social Affairs funded equal treatment NGO projects from the gambling tax, but in July 2020, due to differing interpretations of the application of the law, the Minister of Foreign Trade and Information Technology, acting as the Minister of Finance, stopped those payouts.[1] These NGOs also included the Estonian LGBT Association, the Estonian Centre for Human Rights, and MTÜ Oma Tuba. A week later, the Ministry of Social Affairs took over the financing of the projects and provided the missing payments retroactively.[2] Although the National Audit Office also drew attention to the problem of the scope of the Gambling Tax Act,[3] no changes have so far been made to eliminate the contradiction, and options are unclear regarding state funding for projects which cover equal treatment NGOs.

The political and societal debates at the end of 2020 were dominated by IKE’s intention to hold a referendum on the Estonian constitution. In particular, the relentless desire by EKRE and Isamaa to define marriage in the constitution as being an act which is undertaken only between a man and a woman, along with the lack of support in the Riigikogu and from Estonia’s general population when it comes to amending the constitution,[4] and a strong response in society have all led the coalition into a number of crises.[5] Intelligent solutions were sought in order to word the question,[6] and attempts (likely unlawful) were made to break obstruction by the opposition,[7] but just before the final reading the coalition collapsed and the bill no longer had support in the Riigikogu.[8] The divisive and hostile referendum did not take place, but the issue of equal rights for LGBT+ people is still being used as a catalyst for conflict in the political landscape.

The principles of the new coalition of parties, which involves Reformierakond and Keskerakond,[9] included a promise to stand up for the rights of minorities. In terms of foreign policy this course was noticeable. In contrast to the IKE government’s period in office when support for LGBT+ rights statements completely dried up,[10] a human rights diplomacy source document was adopted, which promises to advance LGBT+ persons’ rights internationally, bilaterally and through development cooperation and humanitarian aid,[11] and a statement was signed against the severely discriminatory nature of Hungarian legislation concerning LGBT+ human rights.[12] Domestically, however, there has been no political development to date – whether regarding laws or policies – to allow the adoption of standards which will promote the equal treatment of LGBT+ people.

The lack of development is offset to some extent by foreign policy processes. On 12 November 2020, the European Commission presented its first strategy on LGBTIQ (lesbian, gay, trans, intersex, and queer) equality in the European Union.[13] The strategy is an important guideline for member states in terms of promoting equal rights, and in providing measures as well as possible opportunities for financial support in order to combat discrimination, ensure safety, build an inclusive society, and ensure equal rights for LGBT+ people.

The European Parliament adopted an important resolution,[14] one which was based on a ruling by the European Court of Justice,[15] and which was intended to guarantee the free movement of LGBT+ people and their family reunification throughout the European Union. It specified that a marriage or a registered partnership in one member state should be recognised in the same way in each member state.

On 4 May 2021, the third regular inspection of Estonia took place at the UN Human Rights Council, where the Equal Treatment Network presented its shadow report regarding the human rights situation in Estonia.[16] As a result of the review, the countries made twenty-four recommendations to Estonia on the promotion of LGBT+ rights.[17] As a side note, Estonia received ten recommendations in the previous period. Of the current total, the Estonian government adopted nineteen in September this year.[18] Amongst those, the government pledged to expand the scope of discrimination in the Equal Treatment Act, to adopt the implementation of legislation regarding the ‘Cohabitation Act’, and to change the transitioning process for transgender people.

Legislative developments

The implementing acts of the ‘Cohabitation Act’, which have been awaiting adoption for many years, are still pending.

The scope of discrimination in the ‘Equal Treatment Act’ has not been extended and the provisions in the penal code regarding incitement to hatred and hate crimes have not been amended.

The medical expert committee assigned as an integral part of the gender transition process ended its activity on its own initiative at the beginning of 2021.[19] The new commission was formed in July of the same year[20], but at the time of the composing of this chapter, it has yet to begin operation.[21] This means that for almost a year, trans people haven’t been able to go through with processes made mandatory by the state,[22] that would allow access to medical services and the changing of legal information. Unfortunately, no time has been set for when trans people can access services that would enable them to live according to their gender expression. This obstacle is inconsistent with the standpoints of EU institutions[23], UN recommendations[24] as well as decisions made by the European Court of Human Rights.[25]

Case law

On 28 September 2021, the Supreme Court declared unconstitutional that law which serves to restrict the residence of same-sex couples in Estonia.[26] The ‘Aliens Act’ did not allow the issuance of a residence permit to an alien so that he or she could settle in Estonia with his or her registered partner who was of the same sex and who was remaining here on the basis of a residence permit. By means of its decision, the Supreme Court’s Constitutional Review Chamber declared the ‘Aliens Act’ to be unconstitutional insofar as it did not allow the applicant to be granted a residence permit.

The European Court of Human Rights delivered a significant ruling on 14 January 2020,[27] stating that Lithuania had infringed Article 14 (regarding the prohibition of discrimination) in conjunction with Article 8 (regarding the right to respect for private and family life), and Article 13 (regarding the right to an effective remedy). The applicant posted a photo on social media in which he kissed his male partner, which led to hundreds of hostile comments. The authorities refused to open an investigation, which left the applicant without means of redress.

In its decision of 17 February 2021,[28] the UN Committee on the Rights of the Child found that Finland had violated the rights of a child who had mothers who were of the same sex, by rejecting an application for asylum from a Russian citizen. This is the first significant decision in the UN Individual Complaints Mechanism regarding asylum in which a child is at immediate risk due to the sexual orientation of their parents. The decision set a standard for the protection of children from LGBT+ families who are at increased risk and who are at risk of discrimination.

Statistics and surveys

The outbreak of coronavirus in 2020 and measures to control it served to significantly affect LGBT+ people worldwide,[29] as well as in Estonia. The initial assessment noted that this primarily affected trans people in Estonia due to the postponement of their gender transition process,[30] and in essence could limit the opportunities of trans people to live their daily lives. Also, events which were due to be organised and presented by the Estonian LGBT Association and Baltic Pride, with those events serving to empower, advise, and support LGBT+ people, did not ultimately take place.

In 2020, the European Agency for Fundamental Rights (FRA) conducted the second-largest LGBTI survey in the world to date,[31] which provides an overview of discrimination, hostility, and security in the member states of the European Union. When compared to the previous FRA survey conducted in 2012, the results in Estonia have improved somewhat. However, LGBT+ people still prefer to be discreet about their identity, which may be due to the fact that almost half of respondents have experienced harassment, and one in ten have been physically or sexually assaulted in the last five years. Trans people experienced discrimination more than any other group, especially in public places where the provision of personal identification has been necessary.

Extensive stagnation in the development of LGBT+ human rights also hit the entirety of Europe in 2021, as noted in published figures by the annual Rainbow Europe Map survey.[32] The promised development did not happen in Estonia; on the contrary, hostility,[33] and attacks,[34] against LGBT+ people are on the increase, which is something which may perhaps be seen as a response to active political or organised action against LGBT+ people.

However, the 2021 survey, ‘Attitudes of Estonians towards LGBT issues’,[35] showed an increase in positive attitudes towards LGBT+ human rights. The ‘Cohabitation Act’ is supported by sixty-four percent of the Estonian population, which is fifteen percent more than two years ago. The significant increase in support has been consistent over the years, serving as an indicator of the importance of human rights in Estonian society. Although the implementing acts of the ‘Cohabitation Act’ have not been adopted in the past seven years, it can be confirmed on the basis of the results of the study that their adoption should not be held back by any lack of public support.

Trends and outlook

The widescale standstill in the development of LGBT+ human rights is due to the excessive politicisation of the human rights field. The lack of consideration of recommendations by sectoral experts as well as of studies in the field, and the long-term failure to guarantee the rights of LGBT+ people, may all serve also to lead towards a lack of development in the future.

Case study

On 02 July 2021, a joint cycling tour by the name of ‘Vikervelo’ which was intended to support the LGBT+ community and promote an equal society took place in Tallinn. When the organiser checked the route just before the event, he was attacked by two men who tore a rainbow flag from around his neck.[36] The assailant attended the final assembly of the cycling tour, where the victim recognised one of his assailants and the police took the suspect to the police station. The attacked organiser testified to the police, but did not make a statement.

Recommendations

  • Adopt implementing legislation regarding the law on cohabitation, which will ensure full implementation of the law on cohabitation.
  • Separate medical and legal processes for recognising the sex of a transgender person. A person must be able to change their personal details within a reasonable time, regardless of medical procedures. In the case of medical procedures, the person must retain the right to decide which procedures they wish and even need, if any, in order to feel that they corresponding to their cognitive gender.
  • Regulate the protection of LGBT+ people from incitement to hatred, hate crimes, and discrimination, including the provision of protection against discrimination outside of employment (in education, health, and the use of social services, and in access to products and services).
  • Carry out research to better map out and understand the situation in which LGBT+ people find themselves in different areas (including the area of school bullying in the school system, unequal treatment in the health care system, and the treatment of LGBT+ people in prisons).
  • Provide in-service LGBT+ training for professionals (teachers, youth and health professionals, police officers, judges, and others) and include LGBT+ issues in the curricula of teachers, youth workers, police officers, judges, health professionals, and others.
  • More effectively involve LGBT+ issues and advocacy organisations in strategic decision-making and policy-making.

[1] Sotsiaalministeeriumi avalik dokumendiregister. 2020. Hasartmängumaksust laekuvate vahendite kasutamine, 10.07.2020.

[2] Sotsiaalministeeriumi avalik dokumendiregister. 2020. Tugiteenuste osutamise kokkuleppe muutmine, 17.07.2020.

[3] Koppel, K. 2020. Riigikontroll: hasartmängumaksust ei tohiks võrdsust edendavaid projekte toetada,  07.02.2020.

[4] Poom, R. 2020. Enamik valijaid peab abielureferendumi korraldamist ebaoluliseks, Delfi, 16.22.2020.

[5] Krjukov, A. 2020. Valitsus jätkab üksmeele otsimist neljapäeval, ERR, 21.10.2020.

[6] Kuusk, P. 2020. Ülle Madise: riigikogul tuleks küsimus sõnastada põhiseaduspäraseks, ERR, 21.09.2020.

[7] Treufeldt, I. 2021. Komisjon koondas tuhanded ettepanekud viieks ja saatis riigikokku, ERR, 10.01.2021.

[8] Riigikogu. 2021. Riigikogu istungi 13.01.2021 täiskogu istungi stenogramm.

[9] Keskerakond. 2021. Uue valitsuse prioriteedid: Reformierakonna ja Keskerakonna koalitsioonilepe, ERR, 24.01.2021.

[10] Pihlak, A. 2019. Eesti ei toeta enam paraadidel seksuaalvähemusi, Delfi, 18.06.2019.

[11]  Välisministeerium. 2021. Inimõigusdiplomaatia alused ja tegevuskava.

[12] Government of the Netherlands. 2021. Declaration of Belgium, the Netherlands, Luxembourg, Estonia, Finland, France, Germany, Ireland, Lithuania, Denmark, Spain, Sweden, Latvia, Italy, Greece, Austria and Cyprus, 22.06.2021.

[13] European Commission. 2020. LGBTIQ Equality Strategy – 2020–2025, 12.11.2020.

[14] European Parliament. 2021. European Parliament resolution of 14 September 2021 on LGBTIQ rights in EU (2021/2679(RSP)).

[15] Euroopa Liidu Kohtu 05.06.2018. a otsus kohtuasjas nr C-673/16.

[16] Eesti võrdse kohtlemise võrgustik. 2021. Ühisaruanne Eesti kolmanda üldise korralise ülevaatuse (UPR) jaoks.

[17] UN General Assembly. 2021. Report of the Working Group on the Universal Periodic Review – Estonia (A/HRC/48/7).

[18] UN General Assembly. 2021. Report of the Working Group on the Universal Periodic Review – Estonia, Addendum (A/HRC/48/7/Add.1).

[19]  Feministeerium. 2021. Läbipaistmatu süsteem ja hinnanguid andvad spetsialistid ehk kuidas kohtleb riik trans-inimesi, 05.07.2021.

[20]  Sotsiaalministri 05.07.2021 käskkiri nr 77.

[21]  Kirjavahetus Sotsiaalministeeriumi ametniku Heli Palustega, e-kiri, 22.10.2021.

[22]  Sotsiaalministri 01.06.2022 määrus nr 32.

[23]  Euroopa Liidu Parlamentaarse Assamblee 22.04.2015. a resolutsioon nr 2048 (2015).

[24]  UN General Assembly. 2015. Discrimination and violence against individuals based on their sexual orientation and gender identity, A/HRC/29/23, 04.05.2015.

[25]  Euroopa Inimõiguste Kohtu 11.10.2018. a otsus kohtuasjas S.V. vs. Italy nr 55216/08.

[26] Riigikohtu põhiseaduslikkuse järelevalve kolleegiumi 28.09.2021. a otsus kohtuasjas nr 5-21-4.

[27] Euroopa Inimõiguste Kohtu 14.01.2020. a otsus kohtuasjas Beizaras ja Levickas vs. Leedu nr 41288/15.

[28] UN. 2021. Committee on the Rights of the Child (CRC/C/86/D/51/2018), 04.02.2021.

[29] IE SOGI. 2020. Report to the UN General Assembly: The impact of the COVID-19 pandemic on the human rights of LGBT persons.

[30] ILGA Europe. 2020. COVID-19 impacts on the LGBTI communities in Europe and Central Asia: A rapid assessment report, 19.06.2020.

[31] FRA. 2020. EU-LGBTI II: A long way to go for LGBTI equality, 14.05.2020.

[32] ILGA Europe. 2021. Rainbow Europe Map 2021.

[33] Council of Europe. 2021. Combating rising hate against LGBTI people in Europe, 27.09.2021.

[34]Reimand, K. 2021. Lesbipaar peksti Mustamäel läbi: “ta võttis mu kaelast väga tugevalt kinni…“, Postimees, 19.08.2021.

[35] Eesti Inimõiguste Keskus. 2021. Eesti elanike hoiakud LGBT teemadel 2021.

[36] Laan, T. 2021. Pride-rattatuuril läks kakluseks: mehed kiskusid meeleavaldajal vikerkaarelipu kaelast, Õhtuleht, 02.07.2021.


Author

  • Aili Kala on  huvikaitsejuht ja jurist Eesti LGBT Ühingus, 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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