LGBT rights in Switzerland

LGBT rights in Switzerland

Location of  LGBT rights in Switzerland  (green)

in Europe  (dark grey)  –  [Legend]

Same-sex sexual activity legal? Legal in Geneva, Ticino, Vaud, and Valais since 1798. Legal nationwide since 1942. Age of consent equalised in 1992 through referendum.
Gender identity/expression Transgender people allowed to change legal gender
Military service Gays, lesbians and bisexuals allowed to serve in army.
Discrimination protections Sexual orientation protection in labor code since 2001 (see below)
Family rights
Recognition of
relationships		 Registered partnerships since 2007.
Adoption Stepchild adoption from 2016; Full adoption banned
Gay Pride Parade in Zurich.

LGBT rights legislation in Switzerland is comparatively liberal. Its history is one of liberalisation at an increasing pace since the 1940s, in parallel to the legal situation in Europe and the Western World more generally.

Homosexual acts between adults have been legal in Switzerland since 1942. The age of consent has been equal for heterosexual and homosexual sex since 1992. There has been legal recognition for same-sex relationships since 2007. A legal procedure for the registration of sex changes following gender reassignment surgery was outlined in 1993. Since 2012, authorities have followed a practice of registration of sex change without any requirement of surgery. The Swiss Constitution of 1999 (Art. 8) guarantees equal treatment before the law, specifying "way of life" as one of the criteria protected against discrimination.

The largest homosexual rights advocacy groups Switzerland are Lesbenorganisation Schweiz for lesbian-rights (founded 1989) and Pink Cross for gay-rights (founded in 1993). A Transgender Network Switzerland (TGNS) was founded in 2010. In the 2010s, these groups have increasingly tended to make use of the acronym LGBTI (for "lesbian, gay, bisexual, transgender, intersex") as an umbrella term for their respective areas of interest.

Same-sex sexual activity

Same-sex sexual activity was decriminalised nationwide in 1942 though in the cantons of Geneva, Ticino, Vaud and Valais, same-sex sexual activities were decriminalized in 1798 in accordance with the Napoleonic Code.[1]

The higher age of consent for same-sex sexual activity (20 years instead of 16 for heterosexual sexual activity) was repealed by the criminal law reform of 1992.[2] In a national referendum on 17 May 1992, 73% of the voters accepted the reform of Swiss federal legislation on sexual offences, including the elimination of all discrimination against homosexuality from the Penal Code. Article 187 of the Criminal Code states that the general age of consent for sexual activity in Switzerland is 16 years.

Registered same-sex relationships

"Same-sex partnerships are allowed in Switzerland." Image from a 2016 government publication for refugees.

Registered partnerships have been recognized since 1 January 2007, when the Partnership Act came into force. The cantons of Geneva, Fribourg, Neuchatel and Zurich have allowed registered partnerships for some time. In 2007, one in ten of all marriages in the Zurich were registered partnerships between members of the same sex, and it has registered 702 couples as of 2008.[3]

Single people, regardless of sexual orientation, may adopt children. A bill legalizing stepchild adoption for same-sex couples was approved by Parliament in Spring 2016. Opponents unsuccessfully tried to force a referendum on the bill. The law will come into effect on a yet to be announced date.[4]

Discrimination

Anti-discrimination laws

The Swiss Constitution (Art. 8) guarantees equal treatment before the law, specifying "way of life" as one of the criteria protected against discrimination. Swiss law recognizes the principle of freedom of association and has only limited provisions to outlaw discrimination between private individuals. Notable exceptions are the law for equal treatment of men and women (SR 151.1) and the law against racial discrimination (StGB Art. 261bis) outlawing discrimination based on "race, ethnicity or religion". Because of this situation, private lawsuits against alleged discrimination in recent years have increasingly attempted to invoke the difficult-to-interpret prohibition of "personal injury" (ZGB 28a). [5] Discriminatory termination of employment is protected against if it can be shown that employment was terminated based on "a property to which the other party is entitled by virtue of their personhood, except where that property bears a relation to the nature of the employment contract or significantly affects the work environement"[6] However, there have been very few actual legal proceedings based on lawsuits against alleged discrimination on such grounds. A 2015 survey found seven individual cases, none of which involved alleged discrimination based on sexual orientation or gender identity.[7]

On 7 March 2013, Mathias Reynard, member of the Social Democratic Party, introduced in the Swiss Parliament a bill to outlaw all "discrimination and incitement of hatred" (discrimination et incitation à la haine), on the basis of "race, ethnicity, religion or sexual orientation".[8] On 11 March 2015, the National Council approved the bill. It was passed 103-73.[9][10] The Committee of Legal Affairs of the Council of States allowed the bill to proceed on 23 April 2015.

In May 2016, the Swiss Federal Council based on a 2015 report commissioned from the "Swiss Centre of Expertise in Human Rights" mentioned the option to extend the law against racial discrimination to include "discrimination based on sexual orientation", and plans for a law providing "a simplified procedure to register a sex change".[11]

Military service

Since 1992, homosexuality and bisexuality are no longer mentioned in the Military Criminal Code.[12]

Blood donation

In 1977, a ban on gay and bi men donating blood was enacted. The ban was due to the HIV/AIDS pandemic.[13]

In June 2016, the Swiss Red Cross announced it would address a request to Swissmedic, Switzerland's surveillance authority for medicines and medical devices who has the last word on the matter, and ask for the ban to be lifted. Under the new rules, gay and bi men will be able to donate blood and stem cells after a one year deferral period, beginning January 2017.[13][14][15]

Sex change

A 1993 ruling by the Federal Supreme Court (BGE 119 II 264) allowed for a legal procedure for the registration of a surgical sex change. In February 2010, in an extension of the scope of the 1993 Federal Supreme Court ruling, the Federal Office for Civil Registration (EAZW/OFEC/UFSC) of the Federal Department of Justice and Police) advised cantonal executives to legally recognize sex changes even in the absence of surgery. The EAZW made explicit, with reference to the principle of separation of powers, that the order is binding only for cantonal executive organs and not for cantonal courts of law.[16] The Federal Office for Civil Registration also stated that marriage can be converted into a Registered Partnership if one of the partners should register a sex change.[17]

Conversion therapy

On 13 March 2016, Conservative Democrat MP Rosmarie Quadranti proposed a parliamentary motion which would outlaw conversion therapy on LGBT minors. She said: "When I heard about this type of treatment I got shivers. I never thought this could happen in the 21st century."[18][19]

On 26 May 2016, the Swiss Federal Council expressed its opinion on the motion proposed by Mrs. Quadranti. It argued that conversion therapies are cruel, dangerous and ineffective. However they should not be banned by the executive but by the cantons, youth organizations or the courts. The Council also indicated that such practices are already de facto illegal in Switzerland and as such there is no need to take additional measures. Any person who knows that a minor is in danger or in a situation which may harm them, can call the authorities who have the power to order measures of protection. Additionally Switzerland already has a well-developed network of public and private institutions that must apply to the State to operate effectively.[20] The official response from the Swiss Government:

These pseudo-therapies are not only ineffective, but they are also a source of great suffering for children and adolescents. And society must protect minors from all practices affecting their mental or physical health.

Society

Political parties

Among the major political parties, the Social Democratic Party (SPS/PSS), the Green Party (GPS/PES), the Green Liberal Party (GLP/PVL) and the Conservative Democratic Party (BDP/PBD) are generally in favour of LGBT rights whereas the Christian Democratic People's Party (CVP/PDC) and the Swiss People's Party (SVP/UDC) are generally opposed.[21] The FDP.The Liberals (FDP/PLR) are mostly divided on the issue.[22]

Public opinion

A 2016 poll commissioned by gay-rights organisation Pink Cross found that 69% of Swiss population voiced support same-sex marriage, with 25% opposed and 6% undecided. Divided by political orientation, the poll found 94% among Green Party voters, 63% among Christian Democrat voters and 59% among Swiss People's Party voters.[23][24]

Activism

Since the mid-1990s, an annual Coming Out Day has been held with various publicity events in order to encourage LGBT people to develop a positive relationship with their identity, particularly among young LGBT people.

Claude Janiak, State Councillor (Senator) and former National Council President, is involved in AIDS work, Network, and the Pink Cross.

The "Gay Happiness Index" (GHI) published based on a poll by PlanetRomeo lists Switzerland at rank nine, just above Luxembourg and below the Netherlands, with a GHI score of 70.[25]

Summary table

Same-sex sexual activity legal (Since 1942)
Equal age of consent (Since 1992)
Anti-discrimination laws in employment only (Since 1999)
Anti-discrimination laws in the provision of goods and services (Since 1999)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) (Pending)
Same-sex marriages (Pending)
Nationwide recognition for same-sex couples (Since 2007)
Stepchild adoption by same-sex couples (Since 2016)
Joint adoption by same-sex couples (Pending)
Gays, lesbians and bisexuals allowed to serve openly in the military (Since 1992)
Right to change legal gender (sex reassignment surgery not required for gender change since 2010) (Since 1993)
Access to IVF for lesbians
Conversion therapy banned (de facto) (Since 2016)
Commercial surrogacy for gay male couples (Banned for heterosexual couples as well)
MSMs allowed to donate blood / (1 year deferral period starting from January 2017)

See also

References

  1. ↑ The History of Homosexuality: The Napoleonic Code
  2. ↑ State-sponsored Homophobia A world survey of laws prohibiting same sex activity between consenting adults
  3. ↑ (German) Kein Run aufs Standesamt, Swissinfo, accessed 1 November 2009
  4. ↑ (German) Adoptionsrecht wieder im Fokus
  5. ↑ Privatrechtliche Normen zum Schutz vor Diskriminierung (humanrights.ch), September 2016.
  6. ↑ Eigenschaft, die der anderen Partei kraft ihrer Persönlichkeit zusteht, es sei denn, diese Eigenschaft stehe in einem Zusammenhang mit dem Arbeitsverhältnis oder beeinträchtige wesentlich die Zusammenarbeit im Betrieb SR 210.328
  7. ↑ Walter Kälin et al., Der Zugang zur Justiz in Diskriminierungsfällen (2015), 43f. Alleged grounds for discrimination included: religion (1990), race (1993), antisemitism (1999), political orientation (animal rights activism, 2002), race (2005), age (2005), and ethnicity (2006).
  8. ↑ "Lutter contre les discriminations basées sur l'orientation sexuelle" (in French). Le Parliament suisse. Retrieved 1 May 2016.
  9. ↑ Morgan, Joe (12 March 2015). "Switzerland votes for law to protect LGBTIs from prejudice". Gay Star News.
  10. ↑ (French) Bulletin Officiel
  11. ↑ Renforcer la protection contre la discrimination, Communiqués, Le Conseil fédéral, 25.05.2016 See also: Touzain, François (26 May 2016). "La protection des LGBTI en Suisse est lacunaire". 360°.
  12. ↑ LGBT world legal wrap up survey
  13. 1 2 "Ban on gay men giving blood in Switzerland set to be lifted". The Local.ch. 21 June 2016.
  14. ↑ Touzain, François (21 June 2016). "Timide ouverture pour le don du sang" (in French). 360°.
  15. ↑ (German) Homosexuelle Männer sollen Blut spenden dürfen
  16. ↑ (French) Victoire pour les trans suisses, 360.ch, retrieved on 11 May 2013
  17. ↑ (French) Avis de droit OFEC: Transsexualisme, Federal Department of Justice and Police, retrieved on 11 May 2013
  18. ↑ "Gay teen forced into therapy 'cure' by Christian community". The Local. 14 March 2016.
  19. ↑ (French) «L’Etat doit tout faire pour interdire ces pratiques»
  20. ↑ "Berne dénonce les thérapies de conversion". Le Matin (Switzerland). 26 May 2016.
  21. ↑ "#WahlCH15: Parteien im LGBT-Check". queer.ch. 20 September 2015.
  22. ↑ "Swiss Political Parties Reveal Their Colours". Swissinfo. September 11, 2015.
  23. ↑ (French) LARGE CONSENSUS POUR LES DROITS DES LGBT
  24. ↑ (French) Les Suisses pour l'introduction du mariage pour tous, selon un sondage
  25. ↑ The Gay Happiness Index. The very first worldwide country ranking, based on the input of 115,000 gay men Planet Romeo
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