LGBT Life & Retirement in Switzerland

  • LGBT Life & Retirement in Switzerland

    Posted by Mark Goldstein on September 2, 2020 at 4:34 PM

    LGBT rights in Switzerland

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    Lesbian, gay, bisexual, transgender (LGBT) rights in Switzerland are relatively progressive by European standards, although LGBT people lack full legal equality. Its history is one of liberalization at an increasing pace since the 1940s, in parallel to the legal situation in Europe and the Western world more generally. Despite this, same-sex marriage, full joint adoption, and IVF access remain unavailable in Switzerland as of 2020.

    Same-sex sexual acts between adults have been legal in Switzerland since 1942. The age of consent has been equal at 16 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 sex reassignment surgery was outlined in 1993, though since 2010, authorities have followed a practice of registration of sex changes 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. Certain forms of homophobic discrimination have been a criminal offense since a February 2020 referendum.

    The largest homosexual rights advocacy groups in Switzerland are Lesbenorganisation Schweiz for lesbian rights (founded in 1989) and Pink Cross for LGBT rights (founded in 1993). 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.[1] Intersex organization Zwischengeschlecht campaigns for intersex rights and bodily autonomy.[2]

    Legality of same-sex sexual activity[edit]

    Same-sex sexual activity was decriminalised nationwide in 1942 with the introduction of a national criminal code. Some cantons had legalized same-sex sexual activity previously. The cantons of Geneva, Ticino, Vaud and Valais had done so in 1798 by adopting the Napoleonic Code.[3]

    The higher age of consent for same-sex sexual activity (20 years instead of 16 for heterosexual sexual activity) was repealed by the criminal law reform of 1992.[4] In a national referendum on 17 May 1992, 73% of the voters accepted the reform of Swiss federal legislation on sexual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.

    Recognition of same-sex relationships[edit]

    Main article: Recognition of same-sex unions in Switzerland

    “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 Registered Partnership Act came into force. Prior to this, the cantons of Geneva, Fribourg, Neuchâtel and Zürich already allowed registered partnerships.[5] In 2007, one in ten of all marriages in Zürich were registered partnerships between members of the same sex.[6] In November 2016, voters in the canton of Zürich rejected a proposal to constitutionally ban same-sex marriage, with 81% against.[7]

    Same-sex marriage is not legal. In 2013, the Green Liberal Party of Switzerland introduced an initiative to legalize same-sex marriage to the Federal Assembly.[8] The initiative was approved 12–9 by a National Council committee in February 2015 and 7–5 by a Council of States committee in September 2015. A marriage bill was drafted by the Legal Affairs Committee of the National Council and was finalised in early 2019. On 11 June 2020, the National Council passed the bill by 132 votes to 52. The bill also provides access to sperm donation for lesbian couples.[9] It was supported by the Social Democrats, the Liberals, the Greens, the Green Liberals and the Conservative Democrats, while the Swiss People’s Party was mostly opposed. The Christian Democrats announced they would support the bill if access to fertility treatments for lesbian couples was excluded.[10] A law passed by the Federal Assembly can be challenged by opponents in a referendum, if they collect 50,000 valid signatures within 100 days.[11]

    In August 2020, the Old Catholic Church in Switzerland voted in favour of performing same-sex marriages.[12]

    Adoption and parenting[edit]

    Single people, regardless of sexual orientation, may adopt children. A bill permitting 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 came into effect on 1 January 2018.[13][14] By late December 2018, about one year after the adoption law had taken effect, about 173 same-sex stepchild adoption applications had been filed. This data does not include the cantons of Luzern, Thurgau, and Zürich. About 22 had been filed in the canton of Geneva and 20 in the city of Lausanne.[15]

    Joint adoption is currently illegal for same-sex couples in Switzerland as it is restricted to married couples. The proposed bill to legalise same-sex marriage would permit married same-sex couples to adopt jointly.[16]

    Discrimination protections[edit]Anti-discrimination laws[edit]Constitutional and civil law[edit]

    The Swiss Constitution (Art. 8) guarantees equal treatment before the law, specifying “way of life” as one of the many stated criteria protected against unfair discrimination. Swiss law recognizes a very strong principle of freedom of association and, as such, has only limited provisions to outlaw discrimination in the private sector or between private individuals. Notable exceptions are the Law for Equal Treatment of Men and Women (German: Bundesgesetz über die Gleichstellung von Frau und Mann; French: Loi fédérale sur l’égalité entre femmes et hommes; Italian: Legge federale sulla parità dei sessi; Romansh: Lescha federala davart l’equalitad da dunna ed um) and Article 261bis of the Penal Code outlawing discrimination based on “race, ethnicity, religion or sexual orientation”. 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” (Art. 28a of the Civil Code).[17] 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 environment”.[18] 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.[19]

    There are also anti-discrimination provisions in the laws and regulations of some cantons and municipalities. For example, in September 2017, the cantonal executive body of Geneva adopted new regulations against discrimination based on sex, sexual orientation and gender identity in the cantonal government.[20] Workplace discrimination against LGBT people in Switzerland had been demonstrated to be an ongoing problem in a 2014 report by the gender studies institute at the University of Geneva and the federation of LGBT associations of Geneva.[21]

    Criminal law[edit]Map showing how the Swiss electorate voted in the February 2020 anti-discrimination referendum, by district.

    Since February 2020, discrimination because of a person’s “sexual orientation” is prohibited by Art. 261bis of the Swiss Criminal Code. This category was added by a 2018 law, adopted by Swiss voters in a referendum on 9 February 2020, to a provision that already prohibited discrimination because of race, ethnic origin or religion. The specific prohibited acts are:

    • public incitement to hatred or discrimination,
    • the public dissemination of ideologies or propaganda campaigns that have as their object the systematic denigration or defamation of persons,
    • public denigration or discrimination of persons in a manner that violates human dignity, or
    • refusing to provide a service that is intended to be provided to the general public.

    Violations are liable to be punished by a custodial sentence not exceeding three years, or a monetary penalty.[22]

    This change in law was initiated in 2013 by Mathias Reynard, an MP of the Social Democratic Party, with a bill to outlaw all “discrimination and incitement of hatred” on the basis of “race, ethnicity, religion or sexual orientation”.[23] On 11 March 2015, the National Council voted 103-73 to allow the bill to continue through the legislative process.[24][25] The Committee of Legal Affairs of the Council of States allowed the bill to proceed on 23 April 2015. In February 2017, the Committee of Legal Affairs of the National Council approved, in a 15–9 vote, an amendment to the bill adding “gender identity” as a prohibited ground of discrimination.[23][26] The bill was opposed by several members of the Swiss People’s Party (SVP/UDC),[27] which regarded it as unnecessary, although the party as a whole chose not to take a position on the bill. The other parties mostly supported the bill, as did 86% of the Swiss people according to polls.[28][29]

    In August 2018, the Federal Council announced its support for the proposal, but recommended that the term gender identity be removed due to its “vagueness”.[30] The National Council refused to remove the term, and approved the bill on 25 September 2018, in a 118–60 vote with 5 abstentions.[31][32] On 7 November 2018, the Legal Affairs Committee of the Council of States approved in a 9 to 2 vote (with 1 abstention) the legal change to make discrimination on the basis of sexual orientation and gender identity illegal. Outlining its decision to also include gender identity, the committee said transgender and intersex people were the victims of discrimination alongside homosexuals and bisexuals.[33][34] In November 2018, the Council of States approved the bill in a 32–10 vote. However, by 23 votes to 18, it voted to remove the term “gender identity” due to it being “too vague”. Many deputies and LGBT organisations welcomed the extension of the law to include sexual orientation, but expressed disappointment that gender identity was excluded, which according to Transgender Network Switzerland “excludes and further marginalises intersex and transgender people. [The law] will only be complete when it condemns discrimination based on gender identity.”[35] Because the legal text had been altered, the National Council had to re-vote on it. On 3 December, despite demands from the Social Democracts and the Greens, in a 107–77 vote, it voted to exclude gender identity from the bill.[36][37][38] By April 2019, opponents had collected 70,000 signatures to force a referendum on the law.[39] Despite concerns over the validity of the signatures, as several people reportedly signed the initiative believing it to be a campaign against homophobia,[40] a referendum took place on 9 February 2020.[41] Swiss voters approved the law with about 63% voting in favor.[42]

    Hate crime laws and violence[edit]

    In November 2016, Swiss LGBT groups began offering a helpline to LGBT people.

    In August 2017, the Swiss Federal Council expressed opposition to a motion proposed by the Conservative Democratic Party which would force the confederation to count and register hate crimes committed against members of the LGBT community. It argued it would be too difficult to keep track of these crimes, as it is not always clear if the victim’s sexual orientation or gender identity was a factor.[43] However, the National Council voted in September 2019 to support the motion, by a vote of 97–94.[44]

    A 2018 survey of 1,700 Neuchâtel school children (14–15-years old) found that 10% of girls and 5% of boys identified as LGBT. Among these, 38% reported receiving slaps, kicks or punches, 25% reported frequent harassment, 16% reported being victim of physical violence and 7% reported being discriminated against by a teacher.[45]

    Military service[edit]Members of the Swiss Armed Forces marching at an LGBT pride parade

    Since 1992, homosexuality and bisexuality are no longer mentioned in the Military Criminal Code (MCC).[46] After a referendum on 17 May 1992, the then Article 127 dealing with unnatural fornication in the military (“Who makes a lewd affair with a person of the same sex will be punished with prison …”) was abolished.[47]

    Since 2013, some transgender people have been able to serve openly in the Swiss Armed Forces. In that year, the case of a cook whose deployment to KFOR service was initially canceled after she came out as transgender was discussed in a high-profile TV programme. As a result, the Army changed its policy to allow the service of transgender people if a medical examination determines that they are “in good physical and psychical health, sufficiently resistant to stress, resilient and able to be subordinate”, and it established a diversity office. Since 2019, the draft form has allowed draftees to indicate their gender identity separately from their assigned sex, a change proposed by LGBT rights organizations. However, transsexuality or gender dysphoria remain reasons for dismissal according to Army regulations. Army medical officials said that about 18 draftees were so diagnosed annually.[48] In 2019, a trans man was refused recruitment because of these regulations;[49] but the Chief of the Armed Forces, Philippe Rebord, said that they and the case would be reviewed. In September 2019, Lt Col Christine Hug became the first trans woman to command a battalion.[50]

    Transgender rights[edit]

    Swiss legal practice allows transgender persons to change their officially registered gender through judicial proceedings. The Swiss Government wrote in May 2018 that “the absence of any clear ruling in law means that transgender individuals continue to face enormous hurdles. They must sue in court to have their change of gender legally recognised. Legal practice is inconsistent, and proceedings are found to be unnecessarily protracted and expensive.”[51]

    This situation developed as follows: A 1993 ruling by the Federal Supreme Court (BGE 119 II 264) allows for a legal procedure for the registration of sex changes. 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 it 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.[52] The Federal Office for Civil Registration also stated that a marriage can be converted into a registered partnership if one of the partners should register for gender recognition.[53]

    In May 2018, the Federal Council proposed amending Swiss legislation to allow transgender individuals to change their registered gender and first name(s) without “red tape”, simply by making a declaration to civil status registry officials.[51][54] On 11 June 2020, the Council of States passed legislation to this effect by 31 votes for, 7 against, and 7 abstentions.[55] It would permit transgender people to change their legal gender “without bureaucratic complications” (i.e. no surgery, medical examinations, etc.). Minors aged between 12 and 18 would need the consent of a legal guardian to undertake a legal sex change.

    In November 2019, the Grand Council of Basel-Stadt voted to include “gender identity” in its law on detention to better protect transgender people in regard to placement in correctional facilities.[56]

    Intersex rights[edit]

    Main article: Intersex rights in Switzerland

    Intersex infants in Switzerland may undergo medical interventions to have their sex characteristics altered. Human rights groups increasingly consider these surgeries unnecessary and, they argue, should only be performed if the applicant consents to the operation. In 2012, the Geneva University Hospitals issued guidelines prohibiting its doctors from performing such procedures without the consent of the applicant.[57]

    In 2018, the National Council, the lower house of Parliament, expressed support for an “X” sex descriptor on identity documents, with 107 votes in favour. A separate motion to allow intersex individuals to leave their sex entry blank was also accepted, with 109 votes in favour.[58] The Federal Council will now review the motions and later express recommendations.

    In April 2019, the Grand Council of Geneva passed two motions, one unanimously, against the use of such surgeries, which they labelled “mutilation”. The motions foresee a reparation scheme and free psychosocial counselling for the victims, as well as the dismissal of any doctor or physician who performs these procedures on intersex people without their consent.[57]

    Blood donation[edit]

    In the 1980s, as a result of the HIV/AIDS pandemic, a blanket ban on gay and bisexual men donating blood was enacted.[59] In June 2016, the Swiss Red Cross announced it would address a request to Swissmedic, Switzerland’s surveillance authority for medicine and medical devices, and ask for the ban to be lifted. Under the new rules, gay and bisexual men can donate blood and stem cells if they have not had sex in a year. The rules were implemented on 1 July 2017.[59][60][61][62]

    In early May 2017, the National Council approved a motion calling on all restrictions on gay and bisexual men donating blood to be lifted. According to the National Council, only risky behaviour should be a factor for blood donation, not one’s sexual orientation. The motion, introduced by the Conservative Democrats, was approved 97–89.[63] However, this was rejected by the Council of States on 29 November 2017.[64] The 1 year deferral period for gay and bisexual men donating blood therefore remains in place.

    Conversion therapy[edit]

    See also: Sexual orientation change efforts

    In 2016, Conservative Democrat MP Rosmarie Quadranti requested the Swiss Federal Government to undertake measures to outlaw conversion therapy on LGBT minors.[65][66] The Swiss Federal Council wrote in response that in its view, conversion therapies are “ineffective and cause significant suffering to young people subjected to them”, and would constitute a breach of professional duties on the part of any care professional undertaking them. As such, in its view, any care professional undertaking such therapies is already liable to be sanctioned by the cantonal authorities. Whether such therapies also constitute a criminal offense is to be determined by the criminal courts in individual cases, according to the Federal Council.[67]

    Reports emerged in summer 2018 of a therapist claiming to be able to “cure” homosexuality through homoeopathy. He was promptly fired, and an investigation was opened with the Geneva Ministry of Health.[68] According to the Ministry, believing that homosexuality is an illness is sufficient enough to open an investigation. The Association des Médecins du Canton de Genève describes conversion therapy as a form of charlatanism.

    Position of political parties[edit]

    Among the major political parties, the Social Democratic Party (SP/PS), the Green Party (GPS/PES), FDP.The Liberals (FDP/PLR), the Green Liberal Party (glp/pvl) and the Conservative Democratic Party (BDP/PBD) are in favour of LGBT rights including same-sex marriage, adoption and access to artificial insemination for lesbian couples, whereas the Swiss People’s Party (SVP/UDC) is generally opposed.[69][70][71]

    Despite its large Catholic and socially conservative base, the Christian Democratic People’s Party (CVP/PDC) has become increasingly supportive of same-sex marriage and LGBT rights in recent years. A 2019 survey showed that about 83% of CVP candidates running in the federal election in October were in favour of same-sex marriage.[72] The party supports same-sex marriage and adoption, but opposes access to fertility treatments for lesbian couples.[73]

    Public opinion[edit]

    A 2016 poll commissioned by gay-rights organisation Pink Cross found that 69% of the Swiss population supported same-sex marriage, with 25% opposed and 6% undecided. Divided by political orientation, the poll found support at 94% among Green Party voters, 63% among Christian Democrat voters and 59% among Swiss People’s Party voters.[28][74] According to the same poll, 50% of the Swiss people supported full joint adoption for same-sex couples, while 39% were opposed and 11% were undecided.

    A December 2017 Tamedia poll found that 72% of Swiss people supported same-sex marriage, with 25% opposed. 88% of Greens, Social Democrats and Green Liberals, 76% of Liberal voters, 66% of Christian Democrats, and 56% of Swiss People’s Party voters expressed support.[75]

    A 2017 Pew Research Center poll found support for same-sex marriage among Switzerland’s population at 75%, with 24% opposed and 1% undecided.[76]

    In February 2020, a poll conducted by the gfs group found that 81% of respondents “strongly” or “somewhat” supported same-sex marriage, 18% were opposed and 1% were undecided.[77]

    LGBT rights movement in Switzerland[edit]Gay Pride parade in Zürich in 2004

    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. The day is also observed in schools, high schools, universities and other institutions throughout the country,[78] often in the form of seminars, movies, questionnaires, group discussions, etc.

    Numerous LGBT organisations operate in Switzerland, on both a national or regional level. The Swiss Lesbian Organisation (Lesbenorganisation Schweiz, Organisation suisse des lesbiennes, Organizzazione svizzera delle lesbiche, Organisaziun svizra da lesbas) was founded in 1989 to advocate for lesbian rights, and Pink Cross was founded in 1993 to campaign for the rights of gay and bisexual men.[79] The groups advocate for visibility, as well as legal rights for same-sex couples and societal acceptance.[80] Pink Cross describes its mission “as represent[ing] gay interests in the realms of politics, administration and public opinion.” Transgender Network Switzerland campaigns for the betterment of the transgender community, offering its services to any transgender individual seeking advice on legal name and gender changes, the armed forces or asylum. Other groups include Dialogai, founded in 1982 to offer helplines and advice, Zwischengeschlecht, an intersex association, Queeramnesty, and Rainbow Families (Regenbogenfamilien, Familles arc-en-ciel, Famiglie arcobaleno, Famiglias d’artg).[81] On a cantonal level, there are also several LGBT groups, including Vogay in Vaud, Alpagai in Valais, Homosexuelle Arbeitsgruppen Zürich (HAZ) in Zürich, GayBasel in Basel-Stadt and Imbarco Immediato in Ticino, amongst others. In addition, there are also several LGBT youth groups present at Swiss universities, including at EPFL, ETH Zurich, the University of Lausanne and the University of St. Gallen.

    Pride parades are held throughout Switzerland. The largest and oldest such event is held in Zürich, first organised in 1994. In 2019, the event saw the participation of about 50,000 people.[82] In the Romandy, Pride festivals rotate cities every year. The 2019 edition, which was held in Geneva, saw a turnout of 35,000 people.[83] Other cities where such events have been held include Bern, Basel, Lausanne, Fribourg, Sion,[84] Lugano,[85] and Lucerne.

    There are several openly LGBT politicians in Switzerland. Among them is Claude Janiak, State Councillor and former National Council President, who is involved in AIDS work and Pink Cross. Mayor of Zürich Corine Mauch is also openly gay.

    The “Gay Happiness Index” (GHI) published based on a poll by PlanetRomeo lists Switzerland at rank nine with a GHI score of 70.[86]

    In 2017, the rights group Rainbow Europe ranked Switzerland three places lower after delay in updating its anti-discrimination laws to explicitly include gender identity and sexual orientation.[87]

    In 2018, a Chur bishop drew controversy after claiming that 90% of victims of child sex abuse and paedophilia in the Roman Catholic Church were of “a homosexual tendency”.[88]

    In February 2020, the Swiss population voted, with 63.1% in favour, to extend the country’s hate speech law to cover sexual orientation, thus making public incitement to hatred on account of sexual orientation a criminal offence.[89] The results of the referendum varied significantly by linguistic region; whereas 75.3% of French-speaking Switzerland and 66.5% of Italian-speaking Switzerland supported the proposal, only 59.0% of German-speaking Switzerland did so. For instance, while the small French-speaking town of Rougemont voted 70.1% in support, the neighbouring German-speaking town of Saanen voted 55.7% against. The highest “yes” vote was recorded in the canton of Vaud, which voted 80.2% in favour (with its capital city, Lausanne, supporting the proposal at 86.3%). The town of Chigny recorded the highest “yes” vote of any town in the country, at 89.4%. Another distinction in the results were urban and rural areas; support was 73.7% in urban areas (79.6% in the French-speaking parts, 72.5% in the German-speaking parts and 68.5% in the Italian-speaking parts), while it was 54.8% in rural areas (70.6% in the French-speaking parts, 64.6% in the Italian-speaking parts and 48.6% in the German-speaking parts).[90]

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