Lisette Kampus

 There has been no substantial progress in the protection of LGBT[1] persons’ rights in 2010. The state’s practice regarding discrimination based on sexual orientation is still very sparse – there is no official statistical data available or any case law, despite the possibilities given in legislation. The number of complaints submitted with the Gender Equality and Equal Treatment Commissioner and the office of Chancellor of Justice is also negligible. It can be concluded that the LGBT community itself is not yet sufficiently informed or brave enough to turn to the Chancellor of Justice, the commissioner or other relevant institutions for the protection of their rights.

§ 151 of the Penal Code criminalising inciting hatred based on sexual orientation has not yet been implemented in practice either. Even though complaints referring to this paragraph have been lodged with the police none of these have been accepted and resulted in proceedings being initiated.[2] Complaints referring to the same paragraph based on, for example, inciting hatred based on nationality, however, have been accepted.[3] Therefore it can be concluded that § 151 of the Penal Code lacks an effect on fighting discrimination stemming from sexual orientation.

In the summer of 2010 the UN Human Rights Committee published its recommendations to Estonia on implementing the UN Covenant on Civil and Political Rights.[4] The recommendations entailed several remarkable points regarding LGBT persons. Most criticism was directed at the fact that only singular cases of discrimination had been documented in Estonia, based on any ground for discrimination including sexual orientation. The Human Rights Committee had thereby also raised the question of the actual effect and efficiency of the Equal Treatment Act.

It must be pointed out that even though sexual orientation is one of the bases for discrimination, which the Equal Treatment Act[5] tries to afford protection from, the whole act’s effect on LGBT persons is still limited.[6] § 2 of the Equal Treatment Act states the scope of application of the act, which differs depending on the grounds of discrimination. Discrimination of persons on the grounds of nationality (ethnic origin), race or colour is prohibited among other things in relation to social protection, social security and health care and social advantages, education and access to and supply of goods and services which are available to the public, including housing. Yet protection from discrimination on the grounds of sexual orientation for the aforementioned areas is not afforded.  Therefore the Equal Treatment Act does not extend the protection of LGBT persons’ rights in comparison to what has been provided for in the EU Directive 2000/78, which sets the general framework for equal treatment in employment and occupation.[7]

The transgender persons and their situation in Estonia has not been afforded any attention, especially outside the topic of equal treatment. The rights and legal regulation of transgender persons is still confusing as it is divided between several different acts of law. Therefore it is difficult to have an overview of their rights and obligations.

In 2010 the LGBT topic came to the public attention in three occasions. In spring and summer the media offered long term coverage of the so-called Viimsi case and the court’s decision; in autumn and winter the Riigikogu candidates were questioned about their stances regarding same-sex partnership and other similar topics. The 2011 general elections were the first time when political stances on the issues of LGBT persons were explored. 32 of the candidates who were elected to Riigikogu (including alternate members) were in favour of the same-sex partnership act, 40 candidates were not in favour and 21 candidates did not give a reply to the question. This indicates the readiness of the society to approach this as an important issue.

The extensive campaign “Diversity Enriches” had the most success with bringing the topic of rights of LGBT persons to the public attention. The project co-funded by the Ministry of Social Affairs in the course of the European Commission program “Progress”, lead by the Human Rights Centre at the Tallinn University of Technology focused on homophobia and racism in 2010.

The outdoor advertising campaign of the project “Diversity Enriches” that took place in autumn created a widespread public discussion. More than 90 posters were put up for 2 weeks in 5 towns in Estonia bearing slogans based on questions introducing a personal aspect such as “What if your sister falls in love with her female friend?”.

The outdoor media campaign brought a lot of public attention and resulted in several opinion articles containing for and against arguments. It is worth noting that a special insert focused on homophobia titled Möte in the daily paper Eesti Päevaleht published in the summer of 2010 in the course of the same project did not cause a wider discussion, even though the insert contained more opinions and arguments on the subject matter than the poster slogans.

Rights of same-sex couples

Compared to 2009 there have been no developments in Estonia in the protection of the rights of same-sex couples on the legislative level. Rather, the decision of the Ministry of Justice to abandon the draft allowing registration of partnerships (either same-sex or opposite sex) separate from the institution of marriage could be considered a substantial regression.

As there has been no court practice regarding the LGBT topic, the 2010 Tallinn Circuit Court judgment where one of the parties was a same-sex couple with a large family who was refused compensation for children’s travel expenses and school dinner by the local government can be considered a certain progress.

A family of three children raised by a same-sex couple applied to their local government – Viimsi municipality for school and kindergarten dinner compensation according to the Viimsi council regulation no. 16 of 25 April 2007, which states that the families with three or more under age children are entitled to the aforementioned compensation:

“A family member – is a person, his/her spouse or life partner, their dependent children and parents if they live in the same household, this means: use their income commonly and share a common household.”

Prior to submitting the application the applicant specified with the municipality’s social and health care worker in a telephone conversation that the parents do not need to be married, but just have to live as a common household to qualify.

The applicant received a reply on the day of submitting the application, which stated that Viimsi municipality refuses to pay the support, giving the following reasoning:

“Viimsi municipality has sometimes as an exception done the persons a favour and accepted factual marriage or the so-called cohabitation, even though it is not regulated in legislation. But as the currently valid § 1(1) of the Family Law Act states that marriage is contracted between a man and a woman the factual cohabitation of two same-sex persons cannot be considered a family, which is why you lack the grounds for qualifying for the compensation as a minimum of three children are required for assigning the compensation.”[8]

It is also important to note that the Viimsi council regulation no. 16 did not contain a restrictive provision stating that a family must consist of parents of opposite sexes and their children.

The applicant turned to the Chancellor of Justice with the request to check whether the denial to pay benefits was in accordance with the applicable legislation.

On May 19th, 2009 the Chancellor of Justice Indrek Teder emailed Viimsi rural municipality government the summary of the legislative proceedings[9], which suggested elimination of the violation and expressed the stance that Viimsi municipality’s decision to refer to the provision of the Family Law Act stating marriage is contracted between a man and a woman is irrelevant in the matter as chapter 9 of the act defines foster-parents as family members without specifying the gender of the foster-parent. Chancellor of Justice also suggested Viimsi municipality to reconsider the application.

After receiving the Chancellor of Justice’s summary of the legislative proceedings Viimsi rural municipality government adopted an amendment in the regulation concerning social benefits with 9 June 2009 Viimsi council decision no. 16, which specified the status of a family member:

“A family member – is a person, his/her spouse or a cohabitating life partner of the opposite sex, their dependant children and parents if they live in the same household, this means: use their income commonly and share a common household.”

The application was then reconsidered according to the suggestion of Chancellor of Justice and the applicant was given a negative decision with the following reasoning:

“The aforementioned benefits in Viimsi municipality are afforded to families within the meaning of § 1(1) of the Family Law Act, which the alleged cohabitation of S with K could not be considered. […] The order can be contested in Tallinn Administrative Court (Pärnu mnt 7, Tallinn) or by submitting a challenge to Viimsi rural municipality government within 30 days of giving notice.”[10]

The same-sex couple who had applied for the benefits decided to turn to court for the protection of their rights.

The Tallinn Administrative Court made a judgment[11] on October 19th, 2009 annulling the order of Viimsi rural municipality government, which denied the couple benefits and also obligating Viimsi rural municipality government to reconsider the application in the light of the court judgment. Viimsi municipality appealed to Tallinn Circuit Court which on June 15th, 2010 decided[12] to let the judgment of Tallinn Administrative Court stand. According to the judgment Viimsi municipality had acted unlawfully denying travel and school dinner benefits for the children of the same-sex couple. Viimsi municipality did not make a further appeal.

It could be said on the basis of the Viimsi case that even though there is no clear definition of the concept of a family in Estonian legislation, persons not bound by a legal contract may define themselves as a family or a household and in that way be subject to social benefits afforded to families and households. On the other hand, as the appeal by way of cassation was not followed through the Supreme Court did not have the opportunity to give a legally binding statement, which means the case lacks wider legislative effect and it cannot be precluded that a similar case may be interpreted differently in another court.

Same-sex partnership

Another important development in 2010 is the polemics concerning the possible partnership act, which could afford same-sex couples rights and obligations equal to those of opposite sexes. The Minister of Justice Rein Lang promised that he would begin work developing a partnership act regulating the relationship of same-sex couples in 2009. The Ministry of Justice carried out a survey on rights and obligations of the cohabitees towards each other according to the current regulation and pointed out three possible options for regulating such relations more clearly.

 “1. Leave the current legislation largely unchanged, remove a few facts from a few acts which place non-married cohabitating partners in an unfavourable position compared to married partners (for example regarding residential lease relations). […]

2. Create a different type of contract for non-married cohabitating couples. The partnership contract would set a so-called standard package of legal questions which cause problems in a non-marital cohabitation. […]

3. Open up the marriage institution to same-sex couples. This would not need a separate act, it would suffice to amend the Family Law Act and a few other acts. This option requires deciding the issue of adoption.”

In August the Minister of Justice announced that the partnership act will not be developed as the Union of Pro Patria and Res Publica, one of the parties in the coalition, is against it.

The 2009 report of human rights in Estonia emphasized that the Family Law Act[13] coming into force in summer of 2010 would bring up two important questions lacking clarity of law. Firstly, issuing Estonian citizens wishing to get married to a same-sex partner in a foreign country a document stating absence of circumstances preventing marriage; secondly, recognition of same-sex marriages contracted in a foreign country.

§ 1 of the current Family Law Act states that a marriage is contracted between a man and a woman and § 5 of the act states circumstances hindering contraction of marriage. This means the current legislation does not allow issuing Estonian citizens wishing to get married to a same-sex partner who is a citizen of a state that has legalised same-sex marriage a document stating absence of circumstances preventing marriage as that constitutes a circumstance hindering contraction of marriage according to the Estonian Family Law Act.

§ 10 (1) of the Family Law Act states that a marriage is void if persons of the same sex are married. This means that the marriage of couples from states that have legalised same-sex marriage cannot be legally recognised in Estonia as their marriage is void according to the current legislation.

The EU Agency for Fundamental Rights, referring to the EU Directive 2004/38/EC (which Estonia adopted with the Citizen of European Union Act) has repeatedly stated its position that even though the EU legislation does not obligate the Member States to legalise or acknowledge same-sex partnerships or marriage, it does place the obligation to treat same-sex couples equally to the opposite sex couples in implementation of the EU law (including freedom of movement, migration and legislation concerning asylum).

The Chancellor of Justice Indrek Teder initiated proceedings on the appeal of NGO Sexual Minorities Protection Union, which asked the Minister of Justice for additional explanation regarding acknowledging same-sex marriage in Estonia if it was contracted in a foreign country.

In the appraisal of the Minister of Justice:

 “the questions of allowing/prohibiting same-sex marriage are of matters of principle and since the legislator has knowingly and in clear words ruled out that possibility in Estonia, a position must be taken that acknowledging such marriages contracted elsewhere is a breach of the public order in Estonia”.

Then again in 2008 the Ministry of Internal Affairs claimed that it sees no impediments stemming from the Citizen of European Union Act to Estonia acknowledging the same-sex marriages that have been contracted in other countries.

Recommendations

  • Ensure supplementary training for specialists (teachers, health care workers, police officers, officials etc) on the topic of equal treatment to guarantee more efficient protection of the rights of LGBT persons in everyday life.
  • Monitor the functioning of § 151 of the Penal Code (inciting hatred on the grounds of sexual orientation) in all walks of life.
  • Increase the LGBT community’s awareness of their rights.
  • Initiate work on a draft act regulating relationships between same-sex couples or open up the institution of marriage to same-sex couples.
  • Set out from the obligation stemming from EU law regarding the duty to treat same-sex couples equally to opposite sex couples in implementation of EU law (including freedom of movement, migration and legislation concerning asylum) in order to ensure legal certainty.


[1] LGBT – lesbians, gay, bisexual and trans-persons.

[2] Lisette Kampus, notice of appeal to the Northern Police Prefect 10/2007; Reimo Mets, NGO Sexual Minorities Protection Union, notice of appeal to the Northern Police Prefect 01/2009.

[3] Criminal Chamber of the Supreme Court judgment in a criminal case no. 3-1-1-117-05 (10.04.2006).

[4] UN Human Rights Committee (2010). Concluding observations: Estonia, CCPR/C/EST/CO/3, (4.08.2010). Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/440/92/PDF/G1044092.pdf?OpenElement.

[5] The Equal Treatment Act. RT I 2008, 56, 315 … RT I 2009, 48, 323.

[6] See chapter 8 for prohibition of discrimination in general.

[7] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Official Journal L 303/16 (2.12.2000).

[8] Viimsi municipality’s social worker R.H. in an email to the applicant S.O. 28.01.2009.

[9] Chancellor of Justice (2009). Ettepanek rikkumise kõrvaldamiseks Viimsi vallavalitsusele [Suggestion to the Viimsi rural municipality government to eliminate the breach], no. 7-5-090297/0903201. E-mail 19.05.2009.

[10] Viimsi municipality’s social worker RH.. in an email to the applicant S.O. 28.01.2009.

[11] Tallinn Administrative Court judgment no. 3-09-1489 (19.10.2009).

[12] Tallinn Circuit Court judgment in an administrative case no. 3-09-1489/33 (15.06.2010).

[13] Family Law Act. RT I 2009, 60, 395 … RT I, 21.12.2010, 4.

Cart
  • No products in the cart.