Key issues
- With the establishment of marriage equality and the adoption of implementing acts for the Registered Partnership Act, a long-awaited and significant step forward has been taken towards ensuring the rights of LGBT+ persons and protecting families.
- The positive impact of marriage equality on LGBT+ persons and the improvement of societal attitudes should not be underestimated. However, further developments to ensure equal opportunities for LGBT+ persons must be consistent.
- Violence against LGBT+ persons has increased alarmingly in recent years. A clear cause-and-effect relationship is evident between hate speech and the growing number of violent crimes targeting LGBT+ persons, as well as suicides of LGBT+ persons.
- The process of gender transition in Estonia has needed a fundamental change for years – gender recognition and health services supporting gender transition are framed in the legislation as a process that is difficult to understand, difficult to access and diagnosis-centred, rather than being based on self-identification.
Political and institutional developments
As a result of the 2023 parliamentary elections, a government was formed which promised in its coalition agreement[1] developments in promoting equal opportunities for LGBT+ people that had been anticipated for almost a decade. The coalition agreement promised to establish marriage equality, adopt implementing acts for the Registered Partnership Act, harmonise protection against discrimination for LGBT+ persons, make incitement to hatred punishable, and stipulate that committing a crime with the motive of inciting hatred constitutes an aggravating circumstance in sentencing. Such significant and ambitious decisions were included in the coalition agreement for the first time, and if fulfilled, they will represent a big step forward in advancing equal opportunities for LGBT+ people.
In September 2023, the Council of Europe published its second thematic implementation review report on hate speech and hate crimes, focusing on the protection of sexual orientation, gender identity, gender expression, and sex characteristics (SOGIESC)[2]. The report provides comprehensive recommendations that Member States should consider when defining and handling crimes motivated by hatred.
Among other things, the report includes recommendations to include sexual orientation, gender expression, and sex characteristics as a clearly stated list of characteristics protected against hatred in legislation and policies, and to ensure when defining provisions of laws related to hate crimes that the provisions are genuinely enforceable. It is important for legislators and law enforcement to send a signal to the society that hate crimes committed based on SOGIESC are punishable. These recommendations are valuable guidelines to be taken into account during the processing of the draft law on hate speech and hate-motivated crimes in the Parliament[3].
Legislative developments
On 20 June 2023, the Parliament adopted (tied to a vote of confidence in the government) a significant and historic decision[4], which establishes marriage equality in Estonia and allows two adults to enter into marriage regardless of their gender. Simultaneously, within the same legislative package[5], implementing acts for the Registered Partnership Act were passed, awaiting approval for the past nine years, thereby enabling the full realisation of rights and obligations arising from the law.
The decision of the Parliament is also supported by the general attitude of society – for the first time, over half of the Estonian population supports marriage equality[6], and compared to previous surveys, the percentage of supporters has nearly doubled in recent years. Marriage equality and the fully implemented Registered Partnership Act provide state protection for all families.
The European Commission also addressed family life, presenting a proposal on 7 December 2022 for a regulation that would establish new rules for the recognition of parenthood in Member States.[7] Its aim is to harmonise the norms of private international law that regulate parenthood within the European Union. Due to the varying laws on parenthood in EU Member States, legal obstacles for families may arise when moving within the EU. Therefore, the European Commission is guided by the protection of children’s rights, guaranteeing them the legal rights and obligations of existing parents in all EU Member States.
The termination of the work of the medical expert committee appointed as a mandatory element of the gender transition process was criticised both in the report of the previous period[8] and in the 2022 report of ILGA-Europe.[9] The new committee started its work in early 2022[10], but over time, the two-year waiting period and the four- to five-year procedural time preceding the decree of the Minister of Social Protection allowing the modification of legal gender data[11] have become problematic. This means an unreasonably lengthy and rights-infringing[12] process for individuals to access services that would enable them to live according to their self-identified gender.
The gender transition process in Estonia has needed a fundamental change for years – gender recognition and health care services supporting gender transition are framed in the legislation as a difficult to understand, difficult to access and diagnosis-centred process.[13] Both are based on the considerations and decisions of a psychiatrist and medical expert committee. The right to change legal gender data must be based on self-identification, not dependent on the decisions of doctors. The provision of transition-supportive healthcare services must be based on collaboration between the individual and a specialist (i.e. informed consent), not on psychiatric diagnosis, evaluation, and control.[14]
Case law
In September 2023, the Supreme Court took a position regarding a family of Russian citizens with refugee status, consisting of two mothers and a child, and did not admit for consideration an appeal by which the child’s second mother also applied for adoption. In Russia, it is not possible for same-sex parents to adopt their children, and the family that had been granted refugee status in Estonia applied for adoption in Estonia. The county and circuit courts decided that adoption was not possible because Russian refugees in Estonia are subject to Russian Federation law. This is due to the existence of a legal assistance agreement between Estonia and Russia[15], according to which Russian citizens in Estonia are subject to Russian Federation law.
The Supreme Court did not admit the appeal for consideration, thereby upholding the decision of the circuit court. Surprisingly, the courts did not apply the Convention Relating to the Status of Refugees, which should take precedence over the legal assistance agreement.[16] Currently, a draft law to terminate the legal aid agreement has been initiated[17], and upon its adoption by the Parliament, families in similar situations will have the opportunity to adopt according to Estonian laws.
Statistics and surveys
A report compiled from the results of the latest pan-European survey on the well-being of LGBTI persons reveals that intersex people experience nearly the highest levels of discrimination and marginalisation among all the studied minority groups. Unnecessary medical interventions are performed on intersex persons (including infants) without their informed consent – nearly two-thirds of intersex survey participants who underwent surgeries had not been able to provide consent for medical (and often irreversible) interventions, stating that no one gave consent or that it was given by parents or someone else.[18]
Due to a lack of understanding of the issue, healthy intersex bodies are considered a medical problem that needs to be addressed through surgical, hormonal, other medical, and sometimes psychological means.[19] This significant violation of fundamental rights and interference with bodily and personal autonomy highlights an urgent need for education and training of healthcare professionals[20].
Promising practices
From 6th–11th June 2023, Baltic Pride solidarity week took place in Tallinn, culminating in the largest-ever turnout for the parade to show support for diversity and equality[21]. Over 7,000 people participated in the parade – in addition to the LGBT+ community and allies, representatives from the diplomatic corps of more than 15 embassies, several ministers from the government coalition, the Speaker of the Parliament, and for the first time, numerous businesses representing and supporting LGBT+ people from both Estonia and abroad walked in the parade.[22] Pride Week was organised in a way that provided the LGBT+ community and its smaller organisations with the opportunity to showcase their activities and needs throughout the week. The Baltic Pride with a large number of participants, carried out in the spirit of solidarity and openness, serves as a promising example for future pride events and as a good practice for shaping social openness and positive attitudes.
Trends and future outlook
Violence against LGBTI persons has alarmingly increased across Europe in recent years.[23] The year 2022 saw the highest surge in anti-LGBTI violence in the past decade, and the violence proved to be more deadly than in previous years – both in planned physical attacks and the spread of hate speech by politicians, religious leaders, and other public figures. A clear cause-and-effect relationship emerged between hate speech and the increased number of violent crimes targeting LGBTI persons and suicides of LGBTI persons.[24]
This time, the same disturbing trends reached the previously relatively safe Estonia, and within two years, two serious hate crimes occurred – in 2022, a black transgender woman from a foreign country was murdered[25], and in 2023, a Finnish pastor was stabbed due to their sexual orientation and/or religious affiliation while participating in a public event.[26] The pan-European trends of recent years, as well as those occurring in Estonia, highlight why it is critically important to address hate crimes based on SOGIESC sooner rather than later and to establish hate motive as an aggravating circumstance in the commission of crimes.
Case description
The darker side of the positive Baltic Pride Solidarity Week was an act of hate crime that occurred during the final event of the week, where a Russian citizen attacked a Finnish pastor with a knife during an open prayer session organised by the Association of Gay Christians. Three people were injured during the attack, and two of them were taken to the hospital, while the suspect was apprehended. Since the assailant expressed hatred towards LGBT+ people during the attack, it could be considered a hate crime based on sexual orientation or, additionally, on religious beliefs – the victim was both a pastor and an LGBT+ person. As the legislation lacks effective provisions addressing hate crimes, and there are no provisions for treating an attack based on sexual orientation or religious affiliation as an aggravating circumstance, the crime is being processed under the charge of aggravated breach of public order.[27] The Minister of Social Protection and human rights organisations have condemned the attack as a hate crime.[28] The case is still in pre-trial proceedings.
Recommendations
- Protect LGBT+ persons from incitement to hatred and hate crimes by amending the Penal Code in a way that criminalises hate speech and makes a hate motive an aggravating circumstance. The list of protected characteristics must clearly include gender identity, gender expression, and sex characteristics, in addition to sexual orientation.
- Separate medical and legal processes in gender recognition. Individuals should be able to change their personal data within a reasonable timeframe independent of medical procedures. The right to change legal gender data must be based on self-identification, not dependent on the decisions of doctors.
- Regulate with legislation the protection of LGBT+ persons from discrimination, including protection against discrimination outside the workplace (in education, healthcare, social services, and access to products and services). In addition to sexual orientation and gender, the list of protected characteristics should be expanded to clearly include gender identity, gender expression, and sex characteristics.
- Investigate the well-being and treatment of intersex persons (including children) and ensure that their human rights are not violated through medically unnecessary, forced, and irreversible medical procedures.
- Conduct research to better understand the situation of LGBT+ persons in various areas (including bullying in the education system, unequal treatment in the healthcare system, and the treatment of LGBT+ persons in detention facilities).
- Provide specialised training on LGBT+ topics for professionals (teachers, youth and healthcare workers, police officers, judges, and others) and include LGBT+ related subjects in the curricula of teachers, youth workers, police officers, judges, healthcare workers, and other educational programmes.
- Effectively involve LGBT+ topics and advocacy organisations in strategic decision-making and policy development.
[1] Vabariigi Valitsus. 2023. Koalitsioonilepe 2023-2027.
[2] Euroopa Nõukogu. 2023. Hate Crimes and other Hate-motivated Incidents based on Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics, 09.2023
[3] Riigikogu. 2023. Karistusseadustiku, kriminaalmenetluse seadustiku ja väärteomenetluse seadustiku muutmise seadus (vaenu õhutamine ja vaenumotiiviga kuriteod) 232 SE.
[4] Riigikogu. 2023. Perekonnaseaduse muutmise ja sellega seonduvalt teiste seaduste muutmise seadus 207 SE, 15.05.2023.
[5] Riigi Teataja. 2023. Perekonnaseaduse muutmise ja sellega seonduvalt teiste seaduste muutmise seadus, RT I, 06.07.2023, 6.
[6] Eesti Inimõiguste Keskus. 2023. Eesti elanike hoiakud LGBT teemadel, 09.05.2023.
[7] Euroopa Komisjon. 2022. Proposal for Council regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, 07.12.2022.
[8] Eesti Inimõiguste Keskus. 2021. Inimõigused Eestis 2022. LGBT+ inimeste olukord, 07.12.2021.
[9] ILGA-Europe. 2022. Annual Review 2022, 14.02.2022.
[10] Eesti LGBT Ühingu kirjavahetus komisjonis osalenuga, 02.03.2022.
[11] Eesti LGBT Ühingu kohtumised Sotsiaalministeeriumiga, 20.09.2023 ja 10.10.2023.
[12] Toetudes Euroopa Inimõiguste Kohtu 11.10.2018 otsusele kohtuasjas S.V. vs. Itaalia nr 55216/08 võib tõlgendada piirangut Euroopa Inimõiguste Konventsiooni art 8 rikkumisena.
[13] Sotsiaalministeerium. 2023. Soolise üleminekuga seotud tervishoiuteenused ja juriidiline soo tunnustamine.
[14] Eesti LGBT Ühing. 2023. Ettepanekud koalitsiooniläbirääkimistele, 08.03.2023.
[15] Riigi Teataja. 1993. Eesti Vabariigi ja Vene Föderatsiooni leping õigusabi ja õigussuhete kohta tsiviil-, perekonna- ja kriminaalasjades, RT II 1993, 16, 27.
[16] Grossthal, K. 2023. Ootamatu lõpplahend: Venemaalt pärit pagulastele jääb ka Eestis kehtima Venemaa õigus, Eesti Inimõiguste Keskus, 07.09.2023.
[17] Eelnõude Infosüsteem. 2023. Eesti Vabariigi ja Vene Föderatsiooni lepingu õigusabi ja õigussuhete kohta tsiviil-, perekonna- ja kriminaalasjades denonsseerimise seadus, 16.09.2023.
[18] ILGA-Europe. 2023. Intersections: The LGBTI II Survey – Intersex Analysis, 03.05.2023.
[19] ILGA-Europe. 2022. Children Born Intersex Are At Risk In Most European Countires. Here’s Why, 20.05.2022.
[20] Euroopa Komisjon. Võrdõiguslikkuse liit: LGBTIQ-inimeste võrdõiguslikkuse strateegia 2020–2025, 12.11.2020.
[21] ERR. 2023. Galerii: Tallinnas toimus Baltic Pride`i rongkäik, 10.06.2023.
[22] Eesti LGBT Ühing. 2023. Baltic Pride püstitas osalejarekordi, 19.06.2023.
[23] Euroopa Põhiõiguste Amet. 2022. Fundamental Rights Report 2022, 08.06.2022.
[24] ILGA-Europe. 2023. Annual Review 2023, 20.02.2023.
[25] Muru, M. 2022. Paari nädala eest Raekoja platsi korteris tapetud isik oli transsooline naine, Delfi, 27.07.2022.
[26] ERR. 2023. Geikristlaste Kogu üritusel ründas mees Soome pastorit, 11.06.2023.
[27] TV3. 2023. Tallinnas rünnati Soome geikristlasest pastorit, 12.06.2023.
[28] Vikervaade. 2023. Minister Signe Riisalo ja Eesti LGBT Ühing mõistavad teravalt hukka pühapäeval toime pandud vaenukuriteo, 12.06.2023.
