Legal recognition of same-sex partnerships in Europe

Parliamentary Assembly
Assemblée parlementaire
∗
Declassified
AS/Jur (2008) 22
30 April 2008
ajdoc22 2008
“Freedom of assembly and expression for lesbian, gay,
bisexual and transgendered persons in Council of Europe
member states”
and
“Legal recognition of same-sex partnerships in Europe”
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Andreas Gross, Switzerland, Socialist Group
Minutes of the hearing held in Paris on 7 March 2008
(Extract from document AS/Jur (2008) PV 02)
st
Mr Pourgourides, 1 Vice-Chairperson of the Committee, welcomed the guest speakers:
-
Mr Dennis VAN DER VEUR, Adviser in the Office of the Council of Europe Commissioner for
Human Rights,
Mr Jeffrey WEEKS, Professor of Sociology, Director of Research, London South Bank
University,
Mr Louis-Georges TIN, French academic, Founder of IDAHO (International Day against
Homophobia),
Ms Joke SWIEBEL, Former member of the European Parliament and Chairperson of the EP’s
Gay and Lesbian Intergroup,
Mr Maxim ANMEGHICHEAN, Programmes Director, International Lesbian and Gay Association
(ILGA Europe).
The Russian expert, Mr Kon, had had to cancel his participation for health reasons. Nevertheless, the
text of his contribution was available. The Council of Europe staff LGBT group had also prepared a
document for the members’ attention.
The Rapporteur briefly presented his information memorandum, which provided a snapshot of the
current situation in Europe. The aim of the hearing was to complete the picture, to explain the range of
approaches and, indeed, the hostility towards lesbian, gay, bisexual and transgendered persons
(LGBT) in some sections of society and to consider means of bringing about positive changes in
attitudes and legislation. He asked fellow members to provide him with relevant details about their
countries. He also wished the Committee to declassify his information memorandum and ask the
Bureau to include the new motion for a recommendation entitled “Discrimination on the basis of sexual
orientation and gender identity” (Doc 11423) in his report.
Agreed.
∗
Declassified by the Committee on 12 November 2007.
http://assembly.coe.int
F – 67075 Strasbourg Cedex, e-mail: [email protected]
tel : + 33 3 88 41 2000, fax + 33 3 88 41 2776
AS/Jur (2008) 22
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Mr van der Veur presented the position of the Council of Europe Commissioner for Human Rights on
the two issues covered by the hearing and stressed that the Commissioner had defined discrimination
on the basis of sexual orientation and gender identity as one of his office’s priority fields. In particular,
the rights to freedom of assembly and expression were fundamental rights in a democratic society and
were not the privilege of the majority. LGBT persons should enjoy the same fundamental rights as all
other individuals in Council Europe member states. With regard to the legal recognition of same-sex
partnerships in Europe, the Commissioner condemned discriminatory treatment based on sexual
orientation. In several of his reports, he had underlined that the legislation on same-sex couples should
grant them the same rights as heterosexual couples. In the case of adoption, there was no right to
have children. The best interests of the child had to take precedence. However, LGBT couples wishing
to adopt should have the same rights as other people.
Mr Weeks went over the background to the legal recognition of same-sex partnerships in Europe,
focusing in particular on the example of the United Kingdom, which had initially been very hostile to
such recognition but had then been one of the most liberal countries on the matter since 2005. One of
the key factors in the change had been the calls by the LGBT community themselves to be granted the
same rights as other citizens. In the United Kingdom, the LGBT community had mainly called for the
legal recognition of same-sex partnerships in the name of equal rights and responsibilities, the need to
demonstrate their commitment and love, and public recognition of that commitment. Legal recognition
of same-sex partnerships and gay marriage were indicators of progress towards equality and full
citizenship and of the level of social justice. A society where a substantial proportion of the population
were victims could not claim to be genuinely fair. The acceptance of same-sex partnerships was
spreading in Europe. Such partnerships should become one option among others.
Mr Tin said that there had been a time when blacks had been the victims of racism, Jews of antiSemitism and women of sexism. Today, LGBT persons were still the victims of homophobia and they
were sometimes denied fundamental freedoms such as freedom of expression and freedom of
assembly. However, human rights were universal and indivisible. The universal decriminalisation of
homosexuality was very important in this respect and he called on the Council of Europe to support the
cause.
The Chair referred to the decriminalisation of homosexuality in Cyprus, which had followed a ruling of
the European Court of Human Rights.
In reply to a question from Mrs Leutheusser-Schnarrenberger, Mr Weeks said that the key factors
which facilitated changes in legislation and attitudes in a given country were, firstly, the level of
development of the LGBT community, secondly, the commitment of a political party or a coalition to
reaching a consensus and, thirdly, the role of churches. Mr Tin said that the essential factor was the
will for change.
Mr Vareikis gave his views as a biologist. He also said that the importance of traditions and deeply
held beliefs on these matters should not be underestimated.
With regard to the legal recognition of same-sex partnerships in Europe, Mr Cilevičs raised the
problem of asylum-seekers.
The Rapporteur said that religion should not be a decisive factor and added that social change was
usually reflected in legislation.
Mr Leyden said that legislation on partnerships was under preparation in Ireland, while Mr Sasi
mentioned the issue of the right to marriage and the definition of a family.
Mr Marcenaro, 2
nd
Vice-Chair, took the chair.
Mr Holovaty referred to the decriminalisation of homosexuality in Ukraine.
Mr Gardetto pointed out that the Sub-Committee on Human Rights had protested vigorously against
the homophobic comments made by Patriarch Alexis II in the Assembly on 2 October 2007. It was
unfortunate that the Assembly had provided the Patriarch with a platform for making statements
contrary to the values of the Council of Europe and that some Assembly members had applauded his
comments.
3
AS/Jur (2008) 22
Mrs Nakashidze said that, while LGBT persons had the same rights as other people, homosexuality
should not be promoted. In the case of adoption, the interests of the child should take precedence.
Mr Pourgourides, 1st Vice-Chair, took the chair again.
Mr Frunda spoke out against the right of adoption for homosexual couples and said that, given
Europe’s ageing population, the focus should be on population replacement instead.
Ms Swiebel presented the five factors which she believed had fostered changes in legislation and
attitudes in a number of countries: firstly, the information available and the role of the media, secondly,
an open social and political climate and, more particularly, the search for equality, thirdly, the role of
NGOs and individuals (in particular, the support provided by the political authorities), fourthly, the
standards and values of international organisations, in particular those of the Council of Europe and
the European Union, which underlined that human rights and fundamental freedoms were universal
and, fifthly, the “learning” process of politicians and the recognition of the international nature of the
relevant issues (in particular, the recognition of same-sex partnerships from one country to another).
The latter point was particularly relevant at the Council of Europe.
Mr Anmeghichean underlined that LGBT persons were not demanding special rights. They simply
needed to enjoy the same fundamental rights as all other individuals in Council of Europe member
states, which were enshrined in the European Convention on Human Rights: the right not to be
tortured, freedom of expression, freedom of assembly and respect for private life, etc. According to the
case-law of the European Court of Human Rights, a peaceful demonstration could not be banned
solely on the grounds of hostility towards the demonstrators or the causes they were defending. On the
contrary, states had a duty to ensure the peaceful conduct of lawful demonstrations. At the same time,
political and religious leaders often claimed that societies were not ready to accept homosexuality. Yet
these same leaders were sometimes themselves the source of intolerance in society. Their statements
sometimes even endangered the lives of LGBT persons. As far as the concept of the family was
concerned, it had to be said that the actual situations experienced by many families in Europe were
very far removed from the concept of the traditional family. Moreover, it had to be borne in mind that
some same-sex couples actually did have children. Legal recognition of that situation was essential,
especially for the children living in the families concerned. The importance of Mr Gross’ report should
not be underestimated, as it concerned millions of Europeans whose rights enshrined in the ECHR
were flouted because of their sexual orientation. The Committee on Legal Affairs and Human Rights
needed vigorously to condemn that discrimination.
In Mrs Hajiyeva’s opinion, LGBT rights should be protected, but the legal recognition of same-sex
partnerships and parenting rights would be harmful to children. Moreover, in biological terms, it was
not possible to speak of equality between LGBT and other people.
Mr Sharandin believed that the various issues should be examined separately. The decriminalisation
of homosexuality was one thing; adoption by LGBT couples was another. He also believed that it was
not possible to speak of equality between LGBT and other people.
Mr Cilevičs protested against those comments. It was the best interests of the child which should take
precedence and, in Latvia, traditional families were not in the majority. There were many single-parent
families, families without children and cases of children being brought up by their grandparents.
Mr Weeks also underlined that many LGBT couples did have children. The families in question existed
de facto. In many cases, the legislation would merely be legitimising a sociological reality. At the same
time, studies had shown that the percentage of children brought up by same-sex couples who also
became homosexuals themselves was no higher and no lower than the percentage of children brought
up by heterosexual couples who did so. On the other hand, children brought up by homosexual
parents were usually more tolerant.
AS/Jur (2008) 22
4
With regard to the concept of equality, Mr Tin said that LGBT persons just wanted to be citizens like
everyone else.
Ms Swiebel said that giving LGBT persons more rights would not make homosexuality more popular
or more attractive. Moreover, as demonstrated by the Italian and Spanish examples, there was no
cause-and-effect relationship between the legal recognition of same-sex partnerships and a country’s
birth rate.
Mr Anmeghichean also pointed out that there was no biological difference between lesbians and
heterosexual women.
The Chair thanked the speakers.
The Rapporteur underlined that he wished not only to describe but also to understand the situation in
the member states. In Switzerland, where society was rather conservative, changes in legislation
towards the legal recognition of same-sex partnerships had originated in the cantons and popular
referendums.
*****
Programme of the hearing
Opening of the hearing by Mr Andreas Gross (Switzerland, Socialist Group)
Interventions by:
-
Mr Jeffrey WEEKS, Professor of sociology, Director of Research, London South Bank
University
-
Mr Louis-Georges TIN, French Academic, Founder of IDAHO (International Day against
Homophobia)
*****
Ms Joke SWIEBEL, Former member of the European Parliament and Chairperson of the EP's
Gay and Lesbian Intergroup
-
Mr Maxim ANMEGHICHEAN, Programmes Director, International Lesbian and Gay
Association (ILGA Europe)
*****
A written contribution will be provided by Mr Igor KON, Chief Researcher, Institute of Ethnology
and Anthropology, Russian Academy of Sciences
*****
Questions and discussion
Closing of the discussions by the Rapporteur
AS/Jur (2008) 22
5
List of participants / Liste des participants1
Committee on Legal Affairs and Human Rights /
Commission des questions juridiques et des droits de l'homme
Mrs
Mr
M.
Mrs
DÄUBLER-GMELIN Herta, Chair
POURGOURIDES Christos, 1st Vice-Chair
MARCENARO Pietro, 2nd Vice-Chair
NAKASHIDZÉ Nino, 3rd Vice-Chair
Germany / Allemagne
Cyprus / Chypre
Italy / Italie
Georgia / Géorgie
Mr
Mrs
Mrs
Mr
Mr
Mr
Mr
M.
Mrs
Mr
Mr
Mr
Mrs
Mr
Mr
Mrs
Mr
M.
M.
Mr
Mr
Mr
M.
Mr
Mr
Mr
Mrs
Mr
Mrs
M.
Mr
Mr
Mr
Mr
ARNAUT José Luis
BEMELMANS-VIDEC Marie-Louise
BENAKI Anna
CEBECİ Erol Aslan
CHOPE Christopher (for Mr MALINS Humfrey)
CILEVIČS Boriss (for Mrs CIRCENE Ingrīda)
FRUNDA György
GARDETTO Jean-Charles
HAJIYEVA Gultakin
HERKEL Andres
HOLOVATY Serhiy
IVANJI Želiko
IVANOVA Iglica
KELEMEN András
KUKAN Eduard
LEUTHEUSSER-SCHNARRENBERGER Sabine
LEYDEN Terry (for Mr COSTELLO Joe)
MARTY Dick
MÜRI Felix
PAPALIGOURAS Anastassios
PYSARENKO Valeriy
ROWEN Paul
RUSTAMYAN Armen
SASI Kimmo
SHARANDIN Yuri (for Mr KOVALEV Nikolay)
STRÄSSER Christoph
TOMA Florentina Marilena (for Mr TUDOSE Mihai)
TÜRKEŞ Tuğrul
TÜRKÖNE Özlem
UNGUREANU Vasile Ioan Dănuţ
VAKSDAL Øyvind
VAREIKIS Egidijus
DE VRIES Klaas
ZBONIKOWSKI Łukasz
Portugal
Netherlands / Pays-Bas
Greece / Grèce
Turkey / Turquie
United Kingdom / Royaume-Uni
Latvia / Lettonie
Romania / Roumanie
Monaco
Azerbaijan / Azerbaïdjan
Estonia / Estonie
Ukraine
Serbia / Serbie
Bulgaria / Bulgarie
Hungary / Hongrie
Slovakia / Slovaquie
Germany / Allemagne
Ireland / Irlande
Switzerland / Suisse
Switzerland / Suisse
Greece / Grèce
Ukraine
United Kingdom / Royaume-Uni
Armenia / Arménie
Finland / Finlande
Russia / Russie
Germany / Allemagne
Romania / Roumanie
Turkey / Turquie
Turkey / Turquie
Romania / Roumanie
Norway / Norvège
Lithuania / Lituanie
Netherlands / Pays-Bas
Poland / Pologne
Other Committee members present / Autres members de la Commission présents:
Mr BERÉNYI József
Slovakia / Slovaquie
Switzerland / Suisse
Mr GROSS Andreas
Other member of the Assembly present / Autre membre de l'Assemblée présent:
Mr GORIS Stef, Honorary member / membre honoraire
Permanent Representations to the Council of Europe / Représentations Permanentes auprès du Conseil de l’Europe
Mr BİLGİÇ Tanju
Turkey / Turquie
Mr DE BOER Gerard
Netherlands / Pays-Bas
Mrs ROGOVEANU Oana
Romanie / Roumanie
Mr ROMANENKO Serhii
Ukraine
1
Present at the meeting on 6-7 March 2008 / Présents à la réunion les 6-7 mars 2008.
AS/Jur (2008) 22
6
Secretariats of National Delegations / Secrétariats des délégations nationales
Ms DRAGHICI Micaela,
Romania / Roumanie
M. DUPRIEZ Xavier
France
Ms ESPE Tanja
Estonia / Estonie
Mr MILIVOJEVIĆ Dejan
Serbia / Serbie
Mrs PASHESIUK
Ukraine
Mr TKACHENKO Mikhail
Russia / Russie
Also present / Egalement present:
Mr LEGRAND J., European Commission / Commission européenne – DG RELEX
Secretariat of the Council of Europe / Secrétariat du Conseil de l’Europe:
Mr DUNN Gerard, Human rights law and policy division / Division du droit et de la politique des droits de l’homme
Ms CAJOLY Sabrina, Legal and human rights capacity building division / Division du renforcement des capacités en
matière juridique et de droits de l’homme
Secretariat of the Assembly / Secrétariat de l'Assemblée:
Mrs DINSDALE Jane, Director to the Parliamentary Assembly / Directrice à l'Assemblée parlementaire
Mr DRZEMCZEWSK Andrew, Head of the Secretariat of the Committee / Chef du secrétariat de la Commission
Mr SCHIRMER Günter, Secretary / Secrétaire
Ms MAFFUCCI-HUGEL Catherine, Co-Secretary / Co-secrétaire
Ms HEURTIN Isild, Deputy Secretary / Secrétaire adjointe
Ms HONEYMAN Sally-Ann, Assistant / Assistante