The situation of LGBT persons

Helen Talalaev 

2012 started off with great expectations as the previous year had given reason to hope for remarkable developments in the field of LGBT[1] persons’ rights. The greatest expectations had to do with the planned draft act on cohabitation, which would significantly have decreased inequality between same-sex and different-sex couples. The amendment of paragraphs on incitement of hatred in the Penal Code became a topic of discussion in the second half of the year. There has been a great need for it for years so that people would be better protected in situations where they are attacked because of their sexual orientation or gender identity, or where hatred is publicly incited against LGBT persons. Despite the positive changes the year cannot entirely be considered a success in the legislative meaning.

Political and institutional developments

The 2011 human rights report had pointed out greater visibility of institutions dealing with issues of LGBT persons,[2] however, in 2012 the Ministry of Justice and the Ministry of Social Affairs were the standout authorities discussing LGBT issues.

The Ministry of Justice took an active role in two issues. Firstly, creating the concept of draft of cohabitation act allowing same-sex couples to register their union, which was followed by an extensive public debate. In the second half of the year the Ministry of Justice started active work on amendment of paragraphs on incitement of hatred in the Penal Code, which also received a lot of attention from the public, predominantly in the light of potential limitations to freedom of expression. Both issues will be discussed in more detail under the subheading of legislative developments.

The Ministry of Social Affairs’ development plan for 2013-2016 touches upon the situation of LGBT persons only in general words:

“It is important to facilitate a more effective implementation of legal provisions, raising of awareness and reducing stereotypes regarding a person’s age, disability or affiliation with LGBT persons in order to promote equal treatment and reducing negative effects of stereotypes on various groups of persons, the economy and the society in general.” [3]

The activity of the ministry mainly manifested itself in the European Union PROGRESS programme for Employment and Social Solidarity, the support of which and the co-financing from Ministry of Social Affairs have brought to life “Diversity Enriches” campaigns and projects organised by the Tallinn Law School at Tallinn University of Technology since 2009. The main purpose of these campaigns and projects has been to raise awareness and carry out informative activities. In 2012 a special addendum on the LGBT topics was published in the newspaper Postimees[4] in the course of the project, “Diversity Enriches” weeks took place in Tallinn and in Tartu, and a poll on public opinion on LGBT topics was taken.[5] The Ministry of Social Affairs supported a project of the Estonian LGBT Association on increasing the self-awareness and security of LGBT persons via the Council of Gambling Tax, and the same association with activity support in the course of a large project.

The decision of the Ministry of Social Affairs to include the LGBT topic in the gender equality monitoring carried out after certain set periods and examining the population’s views in Estonia can be considered a positive development. The last monitoring was carried out in 2009, the new monitoring will be carried out in 2013. This means that there will be monitoring of views on LGBT topics by the state.[6]

The situation of LGBT persons’ representative organisations in 2012 was similar to the previous year. Four organisations – the Estonian LGBT Association (formerly NGO Estonian Gay Youth), NGO Sexual Minorities Protection Union, Association of Gay Christians and NGO Gendy – continued the work they had been doing before, but one important new activity was the teachers’ training course organised by the Estonian LGBT Association, which entailed four training sessions that 60 teachers took part in. The training course discussed school bullying based on sexual orientation and unequal treatment in school and possible solutions and behavioural models.

NGO Gendy, the representative organ of trans persons in Estonia, has started to pay more attention to unclarity and low level of regulation regarding trans issues. The basis of all activities relating to gender reassignment in Estonia is the regulation of Ministry of Social Affairs on common requirements to medical acts of sex change.[7] This regulation is controversial and does not cover all the issues arising from gender reassignment, thereby leaving a lot of discretion to the officials. One example of such situation is receiving a duplicate of leaving certificate containing altered personal data. Issuing of basic and upper secondary school leaving certificates is regulated by the regulation titled “Statute and Forms of Basic and Upper Secondary School Leaving and State Examination Certificates”. Even though the school may issue a duplicate with changed personal data according to § 17 (1) point 2 of the regulation[8] according to some interpretations, the head of school have refused to change the data in practice.[9] NGO Gendy has submitted a query with the Ministry of Education and Research, but there have been no significant developments. The ministry replied: “[a]ccording to the current law a person with changed gender cannot apply for a new document certifying education with a new personal identification code and name.”[10] At the same time the Ministry of Education and Research expressed a certain readiness to adopt amending the regulation on documents certifying education into their work schedule.

Legislative developments

On state level the most important part in 2012 was played by the Ministry of Justice, which dealt with two issues important for LGBT persons. The first one to be pointed out is the Cohabitation Act, which the ministry started serious work on after receiving a memorandum from the Chancellor of Justice in 2011, where he expresses his views:

“A permanent cohabitation between persons of the same sex belongs in the sphere of protection of fundamental family rights, which is why the situation where such cohabitation is legally not regulated is unconstitutional. Therefore, it is necessary to create a suitable legal framework for regulating such legal relationships in accordance with the principle of guaranteeing fundamental rights.” [11]

By the end of August of 2012 the concept[12] of the draft to Cohabitation Act was completed at the Ministry of Justice, which offered two sets of regulation: registered cohabitation and factual cohabitation. The first one is meant for same-sex as well as different-sex couples, the second only for different-sex couples who have at least one child in common. Even though the description of registered cohabitation contained several loose ends, it was, however, the first possible solution in Estonia to the situation, where same-sex couples are treated unequally in comparison to different-sex couples. The concept was sent to interests groups to express opinions on, there was also an intense discussion on the cohabitation act in the media. However, it became apparent by the end of 2012 that the Ministry of Justice would not continue active work on creating the draft act, but a regulation for factual cohabitation for different-sex couples would be created by autumn of 2013. The Cohabitation Act will be dealt with when there is time to spare, as it is not a priority, since the coalition of Reform Party and Pro Patria-Res Publica Union does not support this act.[13]

Another important topic initiated by the Ministry of Justice in 2012 was the amendment of paragraphs on incitement of hatred in the Penal Code. On one hand, it is demanded by the European Union (Estonia has the duty to make incitement of hatred punishable by law according to the 2008 framework decision 2008/913/JHA), on the other hand, the current wording[14] requires real danger, which is often difficult to prove in case of incitement of hatred, and that is why the current wording has not been used in court practice. A broad discussion has been initiated at roundtables organised by the Ministry of Justice in order to amend the paragraphs on incitement of hatred.[15] The tendency to offer protection only in very narrowly defined circumstances is worrying (“for public activities breaching public order or in a threatening manner inciting to hatred or violence against a person or a group”), which the Ministry of Justice has interpreted as hooliganism or threat, but which still give no protection in situations lacking such aspects. The wish to omit incitement to discrimination from the draft act has also been expressed at roundtables, which has been opposed to by the Gender and Equality Commissioner as well as several non-governmental organisations. A positive fact is certainly that the draft act defines hatred towards the victim’s sexual orientation or gender identity as aggravating circumstances, which means that the police will have to start gathering statistics on hatred in the motives of offences. At the end of 2012 it is not clear what wording this draft act will reach Riigikogu in.

Limitations of blood establishments on allowing gay and bisexual men to donate blood[16] are still in force and there have been no significant developments in this issue.

There has been no development in extending the scope of prohibition of discrimination in the Equal Treatment Act.

Court practice

In 2011 the representative of the NGO Sexual Minorities Protection Union Reimo Mets submitted a statement of claim[17] with Tallinn Administrative Court regarding refusal to issue a certificate of capability to marry. The applicant asked for a certificate stating no impediments to marriage as he wished to marry a person of the same gender in Sweden. Harju County Government refused to issue the certificate as the Family Law Act states that marriage between persons of the same gender is null and void. Tallinn Administrative Court annulled the prohibiting judgment and compelled Harju County Government to re-examine the claim of Reimo Mets. The court reasoned the annulment with the fact that Harju County Government had marked § 10 subsection 1 of the Family Law Act[18] as the legal basis for refusal, however, Harju County Government lacked jurisdiction to give such appraisals.[19] Therefore, it had been a matter of procedural cause and not a material development in the issue of certificate of capability to marry. After the court judgment Harju County Government again refused to issue the certificate. Reimo Mets submitted a new complaint with Tallinn Administrative Court for annulment of the decision. Tallinn Administrative Court did not allow the claim and confirmed that Harju County Government had behaved legitimately. Strangely enough, it was thought necessary to add a note to the judgment that the decision of Harju County Government about refusal to issue certificate of capability to marry might not become a hindrance to getting married in Sweden as partners being the same gender is not a hindering factor in Sweden and the Kingdom of Sweden might allow the marriage.[20]

The case that began in Harju County Court in 2011 regarding division of property after the ending of a de facto cohabitation has not reached a conclusion.[21] It concerns property issues of a same-sex couple, which the Cohabitation Act could have helped avoid, as the couple would have been able to register their cohabitation and agree on mutual rights and obligations.

Statistics and surveys

In 2012 the Gender Equality and Equal Treatment Commissioner was presented 23 communications regarding sexual orientation. Seven of them had to do with complaints where the applicant expressed suspicion of a possible discrimination because of their sexual orientation. The commissioner did not detect discrimination in any of these cases, in six she could not provide her appraisal for lack of jurisdiction and in one the applicant did not want to proceed with proceedings.[22] The number of communications has risen a little each year (11 communications in 2010, 3 of them complaints; 19 communications in 2011, 5 of them complaints),[23] which means that people’s awareness of their rights is slowly rising.

According to the statistics from LGBT information and activity centre OMA Centre 59 communications were made in 2012, 8 of them complaints regarding unequal treatment based on sexual orientation or gender identity. On many instances there was concern about returning to Estonia with a same-sex life partner who is not a European Union citizen. As Estonia does not recognize cohabitation of same-sex partners these persons cannot apply for residence permit to live with a member of their family. Neither is it possible for Estonian citizens to get married abroad as the certificate of capability to marry is not issued in Estonia when wishing to marry a same-sex partner. Therefore people often have two impossible options to choose from – they wish to return to Estonia, but as their partner cannot move to Estonia they continue to live in a foreign country where they cannot get married. The Cohabitation Act would help improve the situation as Estonian citizens would be able to register their cohabitation with an alien in Estonia, which should also make applying for residence permits possible.

According Estonian Human Rights Centre’s statistics on equal treatment counselling there were two communications made in 2012, which stated the circumstances caused by the person’s sexual orientation as the reason for the communication. Neither case related to direct discrimination.[24]

The most important survey carried out in 2012 was the public opinion poll on LGBT issues by the Tallinn Law School at Tallinn University of Technology.[25] The following findings can be considered remarkable:

• only 38% of respondents find homosexuality acceptable (43% of Estonian community, 25% of Russian community);
• 46% of respondents agree that same-sex partners should be able to officially register their cohabitation, 34% favour opening up the institution of marriage;
• 35% of respondents support adoption within the family, 26% support completely open adoption.

The poll proved that younger persons, persons with higher levels of education or members of the Estonian community are generally more tolerant than older persons, persons with lower levels of education of members of the Russian community. As a comparison, the Council of Europe’s poll[26] from 2011 states that 21% of the Estonian respondents favour opening up the institution of marriage, 14% favour allowing adoption. A certain positive development in people’s views can be detected here.

Students’ increased interest for LGBT topics in their research works can also be detected. In 2012 several Bachelor’s and Master’s thesis were defended at Estonian universities, which dealt with wellbeing of LGBT persons and the views of people living in Estonia, media was analysed, as well as construction of identity.[27]

Good practices

Civil activity should be pointed out as the most effective practice in 2012 – when Lisette Kampus turned media’s attention to the system of family tickets of the Science Centre AHHAA,[28] which stated that a family with same-sex parents could not purchase a family ticket. A thorough discussion in media and inquiries from several persons to the director of the centre yielded a result – AHHAA centre changed the description of their family tickets and it is currently worded as follows: “for one or two adults and all the under-aged children in family”.[29] Therefore, people’s courage to stand up for themselves, and the resulting media attention can lead to elimination of discriminative practice.

Public discussions

Two main topics that garnered a lot of attention in 2012 can be pointed out. Firstly, the already mentioned system of family tickets at Science Centre AHHAA, which created a longer discussion on meaning of family in Estonia. Secondly, a public discussion on the topic of registration of same-sex couples was released in press after making public of the concept of draft of Cohabitation Act at the end of August. The online version of the newspaper Postimees created a separate section gathering articles and opinion pieces concerning this topic.[30] The most important factor with both discussions is that the topic is being discussed in the society, various opinions are expressed, which also allowed media consumers to better consider and phrase their opinions. Press publications generally tried to be neutral, but Postimees also asked the opinion of Martin Helme and Tõnu Lehtsaar who always express homophobic views.

The Gender Equality and Equal Treatment Commissioner actively spoke up about the Cohabitation Act, equalisation of bases for discrimination in the Equal Treatment Act[31] and amendment of paragraphs on incitement of hatred in the Penal Code. One can hope that the commissioner will continue to actively interfere and introduce her stance in the media. Although the commissioner’s means allocated from the state budget will not increase, her budget will be implemented from Norwegian financial mechanisms, which should create additional opportunities to do preventative and informative work.

Trends in 2012

The positive development is that the opinions are changing – the polls in recent years show that people are becoming more open and tolerant towards lesbians and gays and understand the necessity of the Cohabitation Act better. The increasing number of various surveys and research work can also be pointed out – if a few years ago the main sources were surveys carried out by European Union institutions then it is now more and more possible to rely on national surveys. It is also important to point out that LGBT representative organisations are more included in processes of legislative drafting.

The lack of political will to deal with LGBT issues is expressed in the development of Cohabitation Act at the Ministry of Justice, where, despite the Chancellor of Justice’s memorandum, the decision has been made not to work on the Cohabitation Act as it is not a priority. The Ministry of Justice thus approves continued unequal treatment of same-sex couples.

Recommendations

• continue work on drafting the Cohabitation Act;
• consider the needs of the target group and not the pressure of the public when amending the paragraphs on incitement of hatred in the Penal Code;
• draft an act regulating gender reassignment, including psychological, endocrinological and surgical services and amend the government regulation “Statute and Forms of Basic and Upper Secondary School Leaving and State Examination Certificates” so that issuing a duplicate with changed personal data after gender reassignment and its legal recognition is compulsory;
• implement the Equal Treatment Act to extend protection from discrimination based on sexual orientation from employment to services, education and social security;
• carry out surveys to better chart the situation of LGBT persons in different areas (including school bullying in the school system, unequal treatment in the health system, treatment of LGBT persons in custodial institutions;
• work out a national strategy to educate the public and increase the awareness on topics of equal treatment;
• provide additional training to specialists (teachers, youth workers, health care professionals, police officers, judges, etc) on LGBT topics and include the questions concerning LGBT persons to training programmes of teachers, youth workers, police officers, judges, health care professionals and others.