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Estonia Shadow Report LGBT ICCPR

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Estonia Shadow Report LGBT ICCPR THE STATUS OF LESBIAN , GAY , BISEXUAL AND TRANSGENDER RIGHTS IN ESTONIA A SHADOW REPORT Submitted to the Human Rights Committee by: Estonian Human Rights Centre Global Rights ILGA Europe Seksuaalvähemuste Kaitse Ühing June 2010 1 INTRODUCTION The Republic of Estonia, a parliamentary republic and member of the European Union, acceded to the International Covenant on Civil and Political Rights on 21 October 1991 without reservations. Although the government has made important steps in implementing the Covenant, it has yet to fully succeed in protecting from discrimination on grounds of sexual orientation and gender identity. The third periodic report submitted by Estonia on 10 December 2008 1 highlights legislation prohibiting discrimination on grounds of sexual orientation, but the report does not discuss the broader problems of implementation and enforcement of the legislation. Furthermore it is evident from the report that training for police and state officials on issues related to sexual violence do not include violence against LGBT individuals.2 This report is a collaborative effort by Global Rights, the Estonian Human Rights Centre, ILGA Europe and Reimo Mets (Seksuaalvähemuste Kaitse Ühing). Since 1992, laws outlawing sexual acts between consenting adults have not existed. Although this is an important step to end discrimination and stigmatization on grounds of sexual orientation and non-normative gender identities, it does not imply full respect of civil and politics rights for lesbian, gay, bisexual, and transgender (LGBT) individuals. Only in 2002 was the age of consent for same-sex sexual relations equalized with that of opposite-sex sexual relations. While legislation prohibiting discrimination in employment exists, the attitudes of society are more conservative than the legislation. 3 Discrimination based on sexual orientation and gender identity is widespread.4 Based on the findings of Young v. Australia and X. v. Colombia , same-sex couples should be extended benefits and rights that the state recognizes by law for unmarried opposite- sex couples. 1 CCPR/C/EST/3 2 Consideration of Reports Submitted By States Parties under Article 40 Of The Covenant. Third Periodic Report, Estonia.10 December 2008. 3 European Commission. Discrimination in the European Union: Perceptions, Experiences and Attitudes. Special Eurobarometer 296, July 2008. 4 In recent years there have been several studies and reports on discrimination and the situation of sexual and gender minorities specifically in Estonia. The European Commission against Racism and Intolerance published a report on Estonia in March 2009. The Foundation of Human Rights Centre published two reports on human rights in Estonia (in 2008 and in 2009-2010), which include chapters on discrimination and LGBT issues. Experts from the Foundation were involved in the compilation of The Thematic Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation (Estonia) for the EU Fundamental Rights Agency. The study was published in 2008. The ECRI’s report is available to the public on ECRI’s website (http://www.coe.int/t/dghl/monitoring/ecri/default_en.asp). All other reports are available on the Foundation of Human Rights Centre webpage (www.humanrights.ee). 2 EXECUTIVE SUMMARY Individuals with sexual orientations or sexual and gender identities different from traditionally accepted roles face stigmatization and discrimination in Estonia. While laws in Estonia do not outlaw sexual relations of any form between consenting adults, unequal treatment under the law denies unmarried same-sex couples the same benefits recognized for unmarried opposite-sex couples. This was recently manifested in the denial of benefits to children of same-sex couples, which the Estonian government has yet to institutionally protect under the law. Although the government has sought to meet its obligations under the ICCPR by enacting new legislation aimed to meet standards established by the Human Rights Committee, as well as by European Union legislation, such efforts are mostly ineffective due to widespread public stigmatization. The government has made little effort to fight this discrimination that undermines its efforts at meeting ICCPR obligations, and often members of the government contribute to the stigmatization or tolerate it. 5 The government has not assisted lesbian, gay, bisexual and transgender groups in exercising their freedom of assembly, as guaranteed under the ICCPR. At a Pride celebration in Tallinn, participants were harassed and abused. Police forces did little to protect those involved or prevent the abuse. The following year, the municipal government in Tallinn opposed the use of certain areas of the city for a Pride celebration. 6 The government shows an unwillingness to protect the right of freedom of assembly. The rights of transgender people are violated by the government, and inefficient regulations and laws open up such individuals to increased discrimination in the private sector. Those who do not identify with their traditional gender role must undergo sex reassignment surgery—a lengthy, difficult process itself—in order to receive a legal status change. 7 Only after the lengthy surgery process and receiving a legally recognized change of status can individuals begin documenting their gender and/or name change, leaving a time period of uncertainty where they face discrimination in the private sector. 5 http://www.qiss.eu/et/eesti/oiguskantsler-keeldus-seksuaalvahemuste-kaebust-menetlemast.html (accessed 19 May 2010). 6 R. Mets, ‘Pöördumine seoses Tallinna Pride 2007 korraldamisega seonduvalt’, in Eesti Päevaleht, 02.07.2007, available at: http://www.epl.ee/?arvamus=392837 (14.02.2007). 7 Communication 07.05.1999 no. 32. Soovahetuse arstlike toimingute ühtsed nõuded. 3 SUBSTANTIVE VIOLATIONS OF ICCPR ARTICLE 2 AND ARTICLE 26 – PRINCIPLE OF NON DISCRIMINATION Under Article 2(1) of the ICCPR, states are required to “undertake to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property birth or other status.” In Toonen v. Australia, the notion of sex as enshrined in articles 2 and 26 of the Covenant has been interpreted to cover persons of a different sexual orientation. The state has not failed to adopt legislation, but gaps exist between adoption and implementation. Over the last four years, progress has been made, but sufficient progress is still lacking and the state has therefore failed to carry out its law and fell short of its obligations under the ICCPR. In 1992, same-sex behaviors were decriminalized. While it has been nearly 18 years, discrimination on the grounds of sexual orientation and gender identity still exists. The principle of non discrimination in the Estonian legal system is based on §12 of the Constitution of the Republic of Estonia, which prohibits discrimination on the basis of nationality, race, color, sex, language, origin, religion, political or other opinion, property or social status, or on other grounds. The Constitution also prohibits incitement to hatred in the same section. Furthermore, §123 of the Constitution explains: “If laws or other legislation of Estonia are in conflict with international treaties ratified by the Riigikogu (Parliament), the provisions of the international treaty shall apply.” These principles from the Constitution can be applied when there are no more specific laws governing a certain issue to protect a minority. Not only would sexual orientation and gender identity be considered an “other” status under §12, but given the findings of the Human Rights Committee on the case listed above and the Estonian Constitution’s weight of international treaties, sexual orientation in particular would be considered a protected status. As a member of the Council of Europe, Estonia is party to the European Convention on Human Rights, whose jurisprudence has extensively covered human rights violations on grounds of sexual orientation and gender identity. However, Protocol 12 of the European Convention on Human Rights regarding the expanded application of the principle of non discrimination under the Convention has not even been signed. Discrimination in Benefits Recognition The only case in court concerning sexual orientation discrimination is not yet publicly available. The Estonian Human Rights Centre pieced together facts and proceedings from different official and unofficial sources.8 According to their findings, a same-sex family with children living in Viimsi (local authority near Tallinn) was refused social benefits payable to resident-families of the municipality because they did not 8 E-mail communication with Marianne Meiorg, May 2010. On file with Global Rights. 4 correspond to the traditional opposite-sex couples. The case preceding the amendment was referred to the Commissioner, but since the subject matter is not within her competence (as it did not concern employment), she was forced to reject it. The case was then referred to the Chancellor of Justice. The Chancellor found the initial refusal to provide social benefits to be void. The Viimsi municipality accepted the opinion but went on to amend the decree so as to exclude same-sex cohabiting partnerships and rejected the couple’s second application as well. The applicants turned to the court. The local municipality lost in
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