Christian Veske

2011 could be considered an important year from the point of view of LGBT[1] persons in many ways – Tallinn hosted the Baltic Pride festival for the first time (under the name OMA festival), Chancellor of Justice published his opinion,[2] which stated that the situation where same sex couples do not have the opportunity to register their cohabitation is in breach of the Constitution and the LGBT information centre was opened in Tallinn in September. In addition to that several known and respected persons published a manifest in support of a happier Estonia and the Civil Partnership Act, which called for support in enabling cohabitation law for same-sex couples.[3]

Political and institutional developments

The previous year has been important in regards to visibility of institutions concerning the topic of LGBT persons. The most important institutions that have dealt with the topic of LGBT persons on a state level are the Ministry of Justice, the Ministry of Social Affairs, the Gender Equality and Equal Treatment Commissioner and the Chancellor of Justice. The table below points out the main fields of involvement of the institutions in the LBGT topic.

Institution Field of involvement
Chancellor of Justice Discussions on discrimination between private persons, assessments of legislative acts and accordance to Constitution. Protection of constitutional rights and freedoms.
Gender Equality and Equal Treatment Commissioner Expressing opinion on possible cases of discrimination.
Ministry of Social Affairs Coordinating work according to the Equal Treatment Act, LGBT policies (raising awareness, surveys)
Ministry of Justice Legislation (drafting a possible cohabitation act)

Table 1. Institutions involved with the LGBT topic

One of the most important developments in 2011 could be considered the address of the Chancellor of Justice to the Ministry of Justice regarding the issue of legally regulating family relations between same-sex persons. Chancellor of Justice began the analysis on concordance of § 10(1) of the Family Law Act with the Constitution based on the petition of the NGO Sexual Minorities Protection Union. The Chancellor of Justice is of the opinion, based on the analysis, that a consistent cohabitation of same-sex persons belongs in the remit of fundamental freedom of protection of family life, and due to the principle of guaranteeing fundamental rights requires a legal framework to regulate these legal relationships. Chancellor of Justice suggested preparing a draft regulating same-sex partnerships and legal relationships related to it in his address to the Ministry of Justice.

The Ministry of Justice asked the opinion about the cohabitation act from all parties represented in the parliament, then presented its own vision to carry on with this question.[4] Estonian Social Democratic Party, the Reform Party and the Centre Party found that the question of regulating non-marital cohabitation needs to be worked on further. The two first parties, the Reform and Social Democratic Party preferred creating a gender neutral cohabitation act. Pro Patria-Res Public Union was of the opinion that the current situation was already satisfactory and that no additional regulation was needed.

In this letter the Ministry of Justice also announces that drafting a cohabitation act will be adopted into the work plan of 2012.[5] The Ministry of Justice also offers its own regulation models, which will come under further discussion:

  • Contractual approach – the existing regulations will be updated, a so-called package of contracts to regulate circumstances stemming from cohabitation will be drafted;
  • Prerequisite based approach – the circumstances will be regulated considering de facto cohabitation, the couples do not need to register their cohabitation, but they have to be able to prove their cohabitation;
  • Register based approach – requires the couple to register their relationship.

The first approach can be considered unsuitable for non-married cohabitating couples as it is inconvenient (various contracts will have to be notarised) and expensive (due to notary and state fees of concluding several contracts). The disadvantage of the prerequisite based approach is the complication of defining a relationship and providing proof in possible disputes. Therefore, the preferred approach for same-sex couples would be the register based approach, which affords the couples better defined rights and obligations.

The activities of the Ministry of Social Affairs in 2011 in the LGBT topics had mostly to do with raising awareness and supporting its cooperation partners. The Ministry of Social Affairs compiles a framework document on non-discrimination each year, which defines the main trends of action for the following year. Various representative organisations (including LGBT representative organisations), human rights organisations and state authorities are included in this process. Special attention has been given the LGBT topic in 2010, 2011 as well as in 2012. The main cooperation partner for the Ministry of Social Affairs has been Tallinn Law School at Tallinn University of Technology through the “Diversity enriches” campaign, which the Ministry of Social Affairs co-funds.

Ministry of Social Affairs also supported the NGO Estonian Gay Youth in their preparation of the Baltic Pride in the sum of 2380 euros in 2011. The Ministry of Social Affairs also organised a thank you reception for the organisers and supporters of the Baltic Pride.

Statements of leading politicians and state officials made during the Baltic Pride should also be considered to be important. Several politicians (including the Minister of Culture, Rein Lang, the former member of European Parliament and the former Minister of Foreign Affairs Kristiina Ojuland, the member of Riigikogu Eiki Nestor and others) signed an address supporting creation of partnership act.[6] Various embassies in Estonia also did their part to support the Baltic Pride by supporting the Pride financially as well as making a joint declaration.[7]

Positive changes can be detected by observing the activities of LGBT representative organisations in 2011 – the existing organisations have become more visible in their activities as well as more articulated; a new non-profit organisation representing the interests of transgender persons was also created.

Organisation Activity in 2011
NGO Estonian Gay Youth Organisation of the Baltic Pride Festival (OMA festival), creation of OMA centre
NGO Sexual Minorities Protection Union Providing legal help, political lobby, international project NISO aimed at schools
NGO Association of Gay Christians Church events at OMA centres, discussion groups, spiritual support
NGO Gendy Representative organ for transgender persons, created end of 2011.

Table 2. Representative organs of LGBT persons

Legislative developments

Even though there were no legislative developments that were directly aimed at LGBT persons in 2011, the Chancellor of Justice’s address and the Ministry of Justice’s reaction must still be considered important as preparing the cohabitation act has been switched to the 2012 work plan of the Ministry of Justice,[8] and this can be a basis for possible legislative amendments.

There is an ongoing discussion in the Ministry of Social Affairs about allowing gay and bisexual men to donate blood. Even though the Blood Act does not prevent gay and bisexual men from donating blood, the blood centres have set these limitations in practice, citing the necessity of safety.[9] No decisions were made in this question in 2011 and the discussion on this topic will proceed in 2012.

Court practice

Representative of NGO Sexual Minorities Protection Union Reimo Mets[10] filed three court petitions in 2011 regarding the topic of LGBT persons. Below is a short overview of circumstances of these cases.

The first case concerns not receiving the document proving there are no impediments to marriage. Appellant Reimo Mets filed a petition to Tallinn Administrative court regarding refusal to issue a certificate proving capacity to marry. Appellant wished to obtain a certificate from vital statistics office about absence of impediments to marrying, wishing to marry a same-sex person in Swedish Kingdom who is not EU citizen. He was refused the certificate as Estonian national law states that same-sex persons cannot marry. The proceedings are currently still ongoing.

The second Reimo Mets case in 2011 concerns making comments inciting hatred in internet commentaries. Reimo Mets filed a petition to Harju County Court for initiating pre-trial taking of evidence to find out the IP addresses of the authors of comments inciting hatred about him on the internet.

The court accepted the petition and demanded the media publication where the comments were published to give it the IP addresses where the comments were sent from. The court then turned to telecommunication companies and demanded information of the owners of the IP addresses at the time and date of the posted comments. The court issued Reimo Mets this information and the petitioner forwarded a letter of request to all the owners of the IP addresses demanding compensation for moral damage in the sum of 1000–1500 euros. Some of the authors of comments issued apologies, but no one paid the compensation for moral damages.

The third case that is still being proceeded in the Harju County Court has to do with division of assets after the ending of a de facto cohabitation. A same-sex couple who had lived in a residence that belonged to one of the partners broke up. The other partner made remarkable financial investments in the residence over the course of cohabitation. The owner of the residence refused to reimburse the expenses of the partner. This case could be considered important as it handled questions stemming from same-sex cohabitation and breaking up of the relationship. The legal clarity would have been better guaranteed with a gender neutral cohabitation act stating the rights and obligations of both partners.

Statistics and surveys

The Gender Equality and Equal Treatment Commissioner was presented eleven inquiries concerning sexual orientation in 2010,[11] three of them complaints, in 2011 nineteen inquiries concerning sexual orientation were made, five of them complaints. Last year the commissioner found that one of them could be a case of discrimination based on sexual orientation, and in four instances she was unable to give assessment due to lack of jurisdiction (as a comparison, in 2010 no cases of discrimination were identified and in two instances assessment couldn’t be given due to lack of jurisdiction).

The number of inquiries has risen somewhat compared to the previous years, which may, on one hand, refer to increased knowledge of the institution of the commissioner and persons’ courage to stand for their rights, but is, on the other hand, still small enough to presume low level of knowledge about persons’ right to legal protection.

There were no public opinion polls on population’s tolerance of LGBT person in 2011 and therefore there is no overview of changes that might have occurred in the previous year. The main source of attitude of Estonia’s population of LGBT persons is still the Eurobarometer[12] survey from 2007.

An overview of polls relating to the topic of LGBT persons and the community was put together in 2011 by the Tallinn Law School at Tallinn University of Technology.[13] In addition to overviews of existing polls, this project also included carrying out in-depth interviews to chart the problems and needs of LGBT persons. The survey points out that the interviewees stated that there is insufficient information of the community itself, that it is uncharted. Reaching the LGBT community is a great problem, as is the wish or reluctance of the members of the community to be visible.
The survey also points out that the main issues for LGBT persons are the homophobic attitude of the society, guaranteeing legal protection, feelings of security and stability (including social guarantees), discrimination at work, physical and mental health, lack of specialised services, access to information, exchange of information and an environment advancing the LGBT issues.

Good practices

A good practice in the field of LGBT issues are the activities of the campaign “Diversity enriches”, where a common goal unites the public sector (Ministry of Social Affairs), an institute of higher education (Tallinn University of Technology) and the non-profit sector (foundation Human Rights Centre).

The main role of the Ministry of Social Affairs has here been the provision of guidelines and wider coordination of non-discrimination activity. The ministry has also been included in the preparation of various activities of the campaign. Tallinn University of Technology, the executor of the project, has handled the administrative side, and their involvement has guaranteed wider attention, as it is a public university. The role of the foundation Human Rights Centre has been to execute practical activities as well as the so-called field work.

Trends

Continuation of state’s support in 2011 and the generally more positive tone in handling the LGBT topics in the media can be considered a positive trend. However, the internet comments expressing intolerance and hatred have not disappeared.

It must be emphasised that there is still no coherent vision on the state level for handling the issues of LGBT persons. The goal to “promote general openness and tolerance in Estonian society” is stated in the development plan of the Government of Republic of Estonia for 2011–2015,[14] but the measures have been worded vaguely in the Ministry of Social Affairs development plan, through the framework of equal treatment,[15] without any specific purposes stated. The tendency on the national level to prefer an abstract approach to this topic through the general openness and tolerance prism, without defining various target groups, becomes apparent. However, this approach leaves a great deal to be interpreted.

Recommendations

  • Define national policies and goals regarding LGBT persons (including in the field of Ministry of Social Affairs and the Ministry of Justice);
  • Stem from the needs and wishes of the target group in drafting of the cohabitation act, and not from the pressure of the general public;
  • Consider the tendencies in several other democratic Western countries, also discuss the topic of marital equality;
  • Research and analyse homophobic attacks and their spreading in Estonian society in general as well as in specific contexts (including schools).


[1] LGBT – international abbreviation signifying lesbian, gay, bisexual and transgender persons.

[2] Chancellor of Justice (2011). Seisukoht vastuolu mittetuvastamise kohta [Statement about non-detection of breach]. 6-1/100737/1102413 (23.05.2011). Available at: http://oiguskantsler.ee/sites/default/files/field_document2/6iguskantsleri_seisukoht_vastuolu_puudumine_samasooliste_isikute_abielu_tuhisus.pdf.

[4] Document register of the Ministry of Justice. Kooseluseaduse loomine [Creation of co-habitation act]. Available at: http://www.just.ee/jdocs/menetlus.aspx?doc_id=%7bA3B3D641-BB4F-4490-9FAB-F4DECAD221B8%7d.

[5] Document register of the Ministry of Justice. Kooseluseaduse loomine.

[6] Postimees (2011). „Kuulsused kutsuvad üles sallima seksuaalvähemusi“ [Celebrities calling for tolerance for sexual minorities]. Available at: : http://www.postimees.ee/466206/kuulsused-kutsuvad-ules-sallima-seksuaalvahemusi/.

[7] Kaljuvee, Ardo (2011). „Suursaadikud OMA festivali toetuseks“ [Ambassadors in support of the OMA festival]. Available at: http://www.epl.ee/news/arvamus/suursaadikud-oma-festivali-toetuseks.d?id=51298250

[9] Verekeskus. Nõuded doonorile [Donor requirements]. Available at: http://www.verekeskus.ee/?op=body&id=11.

[10] Interview with Reimo Mets. 02.02.2012.

[11] Reply to inquiry. E-mail from the office of the Gender Equality and Equal Treatment Commissioner. 20.01.2012.

[12] Commission of the European Communities (2007). Discrimination in the European Union. Available at: http://ec.europa.eu/public_opinion/archives/ebs/ebs_263_sum_en.pdf.

[13] Tallinn Law School at Tallinn University of Technology (2011). LGBT inimeste olukorra uuringute analüüs [Analysis of the situation of LGBT persons]. Available at: http://www.erinevusrikastab.ee/files/LGBT_uuring/LGBT_aruanne_2011.pdf.

[14] Valitsuse tegevusprogramm [Development plan of the Government of Republic of Estonia]. Available at: http://www.valitsus.ee/et/valitsus/tegevusprogramm.

[15] Ministeeriumi arengukava [Development plan of the ministry]. Available at: http://www.sm.ee/meie/eesmargid-ja-nende-taitmine/ministeeriumi-arengukava.html.

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