Subject: EuroLetter 62 part 1/2
From: [email-masked]
Date: Mon, 17 Aug 1998 22:02:09 +0200 (METDST)

EURO-LETTER 

No. 62				August 1998

THE EURO-LETTER IS PUBLISHED ON BEHALF OF ILGA-EUROPE - THE
EUROPEAN REGION OF THE INTERNATIONAL LESBIAN AND GAY ASSOCIATION
BY GAY AND LESBIAN INTERNATIONAL LOBBY IN CO-OPERATION WITH THE
DANISH NATIONAL ASSOCIATION FOR GAYS AND LESBIANS. Editors:
Steffen Jensen, Ken Thomassen, Peter Bryld, Lisbeth Andersen and
Soeren Baatrup.  Contact to Euro-Letter: E-mail:
[email-masked] URL: http://www.inet.uni2.dk/~steff Fax: +45
4049 5297 Tel: +45 3324 6435 Mobile: +45 2033 0840 Mail: c/o
Steffen Jensen, Gl. Kongevej 31, 4.th, DK-1610 Copenhagen V,
Denmark  You can receive Euro-Letter by e-mail (send a message
to the above address)  and from no 30 onwards the Euro-Letters
are available on the Internet at 
http://www.france.qrd.org/assocs/ilga/euroletter.html
http://www.qrd.org/qrd/orgs/ILGA/euroletter  A French summary is
avaiable at www.france.qrd.org  You can find a link to
Euro-Letters at http://www.inet.uni2.dk/~steff 

IN THIS ISSUE

AN EU HUMAN RIGHTS AGENDA FOR THE YEAR 2000
UN-HIGHCOMISSIONER FOR HUMAN RIOGHTS, MARY ROBINSON, IN VIENNA: PATRON OF 
MINORITIE
PARTNERS MEASURE INTRODUCED IN GERMANY
ROMANIA REJECTS LEGALIZATION OF HOMOSEXUALITY
BLEAK NEWS ON THE REFORM OF THE MILITARY JUSTICE CODE
ILGA-EUROPE LAUNCHES EU REPORT
AUSTRIAN PARLIAMENT FAILS TO REFORM AGE OF CONSENT LAW
TWO PIECES OF GOOD NEWS FROM LATVIA
NEW DUTCH GOVERNMENT COMMITTED TO OPENING UP MARRIAGE AN
ADOPTION TO SAME-SEX COUPLES
RECRIMILASATION OF PROSTITUTION IN SWEDEN
HOUSE OF LORDS STALLS AGE-OF-CONSENT CHANGE
UK GOVT PROMISES GAY RIGHTS REFORM NEXT YEAR
AGE OF CONSENT IN THE UK

Documents relating to ILGA-Europe can be found at ILGA-Europe's
homepage http://inet.uni2.dk/~steff/ilgaeur.htm

An update of the Survey on the Legal Situation for Gays and
Lesbians in Europe can be found at http://inet.uni2.dk/~steff/survey.htm

A description of partnership laws and other laws regarding
same-sex partners can be found at  http://inet.uni2.dk/~steff/partner.htm

Consolidated versions of the basic treaties of the European
Union including amendments from the Amsterdam Treaty can be
found at this web-site: http://ue.eu.int/Amsterdam/en/traiteco/en1.htm
*********************************************************

AN EU HUMAN RIGHTS
AGENDA FOR THE YEAR 2000
By Marc Bell

1. The competence of European Union for sexual orientation
discrimination.

The EC Treaty currently contains no reference to sexual
orientation discrimination. Nonetheless, there are a number of
existing provisions which could provide a potential legal basis
for action against this form of discrimination. First, Article
118a (1) provides the Council with the power to adopt directives
so as to achieve the objective of "encouraging improvements,
especially in the working environment, as regards the health and
safety of workers ...". There is a persuasive argument that the
working environment should be interpreted in a broad fashion,
and this has been sustained by the Court of Justice. On this
basis, combating discrimination in the workplace, and
particularly harassment, may be regarded as an important factor
in improving the working environment. Sexual orientation
discrimination damages the working environment as much as any
other discrimination, and harassment in the workplace on grounds
of sexuality is a significant problem for many lesbians and gay
men. Thus, it seems possible that Article 118a could be relied
upon to legislate against such discrimination and harassment.

More generally, sexual orientation discrimination may be
regarded as a barrier to the free movement of persons.
Individuals living in Member States with a high level of
protection against discrimination may be deterred from moving to
another Member State where they will not enjoy the same level of
protection. A particular problem exists in relation to
partnerships. Denmark, Sweden and the Netherlands allow same-sex
couples to become `registered partnerships', entitling partners
to legal equality with married couples. Where moving to another
Member State will involve a loss of recognition of one's
partner, and the many social, legal and financial entitlements
that implies, a genuine and substantial barrier to free movement
exists. Based on this free movement logic, it is possible that
Article 100 could be relied to upon to address the existing
disparities in the Member States' laws.

Finally, Article 235 provides a general power for the Community
to act where it is necessary to attain one of the objectives of
the common market, but no other Treaty provision provides the
necessary powers. It is arguable that the commitment in Article
2 of the Treaty to "raising the standard of living and quality
of life, and economic and social cohesion" alongside the
commitment in Article 117 to the improvement of living and
working conditions make the fight against sexual orientation
discrimination compatible with the objectives of the Community.

The existing situation regarding legal competence will be
greatly changed following the ratification of the Treaty of
Amsterdam. In particular, the new Article 13 states:

"Without prejudice to the other provisions of this Treaty and
within the limits of the powers conferred by it upon the
Community, the Council, acting unanimously on a proposal from
the Commission and after consulting the European Parliament, may
take appropriate action to combat discrimination based on sex,
racial or ethnic origin, religion or belief, disability, age or
sexual orientation."

Whilst the Article does not create any enforceable rights
against discrimination, it does provide the Council with the
necessary powers to adopt legislation to create such rights. For
example, it will now be open to the Council to legislate against
sexual orientation discrimination in employment. The main legal
question which arises in relation to Article 13, concerns its
scope of application. In this respect, other language versions
of the Treaty are less ambiguous. The French version of Article
13 specifies that it operates,

"sans pr‚judice des autres dispositions du pr‚sent trait‚ et
dans les limites des comp‚tences que celui-ci confere … la
Communaut‚" [added emphasis]

The reference to competences at the outset of Article 13
indicates that it only provides for the adoption of
anti-discrimination measures within the limits of the existing
competences of the Community. Thus, sexual orientation
discrimination may be prohibited in those spheres of activity
for which the Treaty provides the Community with the necessary
competence. Naturally, it is difficult to provide a definitive
list of which areas are covered and which areas are excluded.
Article 13 does not indicate how much competence the Community
needs to have in a given area before it may be relied upon.
However, there is a persuasive argument that the Treaty already
provides the Community with competence in respect of
employment, education and vocational training, public health,
the provision of goods and services, even housing. Relevant
areas which appear to fall outside the scope of Community law
are criminal law and family law, including marriage and
adoption. Nonetheless, to the extent that disparities in the
criminal law and family law of the Member States still form a
barrier to free movement for lesbians and gay men, it remains
possible to argue that Article 100 or Article 235 could be
relied upon for EC action on these issues. Given that the Treaty
of Amsterdam has not even been ratified yet, it is difficult to
reach a firm conclusion on how the institutions will approach
the implementation of Article 13.

2. The acquis communautaire on sexual orientation discrimination.

The lack of any specific Treaty base for Community action
against sexual orientation discrimination is reflected in the
very weak state of the acquis communautaire. Nonetheless, there
have been a variety of binding and non-binding Community
instruments which deal both directly and indirectly with this
issue.

Binding instruments.
The first binding EC legal instrument to refer to sexual
orientation was adopted relatively recently. Regulation 781/98
amending the EC Staff Regulations inserts a new Article 1a in
the regulations to the effect that "officials shall be entitled
to equal treatment under these Staff Regulations without
reference, direct or indirect, to race, political, philosophical
or religious beliefs, sex or sexual orientation, without
prejudice to the relevant provisions requiring a specific
marital status." Whilst this does not meet all the concerns of
the lesbian and gay staff of the Community, particularly in
respect of recognition of their partners, it does establish a
basic level of protection against discrimination. For instance,
it is now clear no-one may be dismissed from the EC Staff on
grounds of their sexual orientation.

No other binding legislative measure expressly mentions `sexual
orientation', but there are several instruments which may
indirectly benefit lesbians and gay men. The parental leave
directive 96/34/EC provides a right for three months unpaid
leave on the birth or adoption of a child, and compassionate
leave where `urgent family reasons in cases of sickness or
accident' make the presence of the worker indispensable. A
significant question is whether this will include lesbian or gay
partnerships. For example, will compassionate leave be granted
in respect of same-sex partners, or parental leave granted to a
same-sex partner on the birth or adoption of a child by the
other partner? It is relevant that the Commission recorded a
statement in the minutes of the Council meeting which adopted
this directive to the effect that "the directive should be
implemented without any discrimination based on race, sex,
sexual orientation, colour, religion or national origin".

Another instance where lesbians and gay men may benefit from EC
law is the Personal Data Directive, which guarantees special
protection of data relating to one's "sex life". (Article 8)
Arguably, this now precludes the keeping of secret files on
sexual orientation by private organisations, including
employers.

It must also be recognised that in many instances EC legislation
actively discriminates against lesbians and gay men through
referring to `spouses' and not making provision for other
unmarried partners. For example, Regulation 1612/68 on the
free movement of workers provides, in Article 10(1), for the
right of the worker to be joined by his or her "spouse". In
1986, the Court of Justice held that this could not be
interpreted as including unmarried partners, heterosexual or
homosexual, although it did leave open the possibility that this
could change with social and legal developments. More recently
though, the Court stated that "in the present state of law
within the Community, stable relationships between two persons
of the same sex are not regarded as equivalent to marriages or
stable relationships outside marriage between two persons of the
opposite sex." This is an example of yet another barrier to
free movement as lesbians and gay men do not enjoy an equal
right to bring their partners with them if they decide to live
and work in another Member State. This is especially difficult
in respect of same sex partners who are non-EU nationals.

Non-binding instruments.
The Commission have addressed the concerns of lesbians and gay
men in a number of contexts. The most important recognition of
sexual orientation discrimination came in the terms of the Code
of Practice on measures to combat sexual harassment which the
Commission adopted as an annex to a 1991 Recommendation on the
dignity of women and men at work. The introduction states:

"research in several Member States, which documents the link
between the risk of sexual harassment and the recipient's
perceived vulnerability, suggests that [...] lesbians and women
from racial minorities are disproportionately at risk. Gay men
and young men are also vulnerable to harassment. It is
undeniable that harassment on grounds of sexual orientation
undermines the dignity of those affected and it is impossible to
regard such harassment as appropriate workplace behaviour.

The Commission have also demonstrated an increasing sensitivity
to the needs of lesbians and gay men in policy formulation and
legislative proposals. In the Commission's proposal for the
parental leave directive, non-discrimination on grounds of
sexual orientation would have been explicitly forbidden in the
implementation of the directive. This clause was though
subsequently deleted by the Council of Ministers. Alternatively,
in the Commission's 1996 Communication on illegal and harmful
content on the Internet the need to protect the anonymity of
lesbian and gay users of the Internet was acknowledged. Finally,
the Commission have funded a number of small-scale programmes
concerning sexual orientation discrimination. For example, in
Dublin, the group `Lesbians Organising Together' was provided
with funding under the aegis of the New Opportunities for Women
(NOW) programme, to run a course on Lesbian Education and
Awareness

The European Parliament has expressed its rejection of sexual
orientation discrimination on many occasions. As early as 1984,
the Parliament called on the Commission to "submit proposals to
ensure that no cases arise in the Member States of
discrimination against homosexuals with regard to access to
employment and dismissals." However, the most significant
expression of support from the Parliament came in 1994, when a
Resolution was adopted calling on the Commission to present a
"draft Recommendation on equal rights for lesbians and
homosexuals". The resolution states that the Recommendation
should seek to end, inter alia, discriminatory ages of consent
for homosexual and heterosexual acts, any discrimination in
criminal, civil, contract and commercial law, all forms of
discrimination in labour and public service law, and the
electronic storage of data concerning the sexual orientation of
an individual without his or her knowledge or consent. It also
demands an end to the barring of lesbian and homosexual couples
from marriage or from an equivalent legal framework, and an end
to any restrictions on the right of lesbians and homosexuals to
adopt or foster children. This sweeping programme for equality
has since been endorsed by the Parliament on a variety of
occasions, most recently in its Resolution on respect for human
rights in the European Union (1996), adopted 28 January 1998.

Finally, it is important to recall the terms of the 1989
Community Charter of the Fundamental Social Rights of Workers.
In particular, the preamble of the Social Charter states:

"in order to ensure equal treatment, it is important to combat
every form of discrimination, including discrimination on
grounds of sex, colour, race, opinion and beliefs." [emphasis
added]

On the one hand, this brief overview has demonstrated that
sexual orientation is an issue which has been addressed by the
EU institutions with some regularity. On the other hand, it
still remains a relatively unexplored issue at the EU level. The
adoption of Article 13 should provide a foundation for a new
interest on the part of the Union in the needs of lesbians and
gay men. In particular, the connection between sexual
orientation discrimination and the free movement of persons
needs to be more thoroughly examined, and practical solutions
are required to enable the free movement of same sex partners.
It is especially necessary that the situation of registered
partners from the Netherlands, Sweden and Denmark is addressed,
as currently these partnerships are rendered invisible when
persons move outside of these states. 

Sexual orientation is not an issue which the EU can simply
ignore. In many legislative instruments, the EU faces a choice
between positive recognition of the particular needs of lesbians
and gay men, or reinforcing their invisibility in law. The
parental leave directive is a good example of this. Furthermore,
given the well-established body of law on sexual discrimination
in employment and social security, it is a relevant question why
other groups do not enjoy equivalent protection against
discrimination. Article 13 provides the Union with the
opportunity to rectify the current imbalance in EU equality law.
This has been made even more urgent following the judgment of
the Court of Justice in Grant v South-West Trains, of 17
February 1998. This confirmed that sexual orientation
discrimination is not prohibited in existing EU equality law.

UN-HIGHCOMISSIONER FOR HUMAN RIOGHTS, MARY ROBINSON, IN VIENNA: PATRON OF 
MINORITIES
by Helmut GRAUPNER, Rechtskomitee LAMBDA, Vienna

During her recent visit to Vienna Mary Robinson,
UN-Highcommissioner for Human Rights, on 25th June met with
representatives of the Austrian Network of Human Rights NGOs,
which Rechtskomitee LAMBDA and HOSI-Wien are members of.

In this meeting Helmut Graupner, president of Rechtskomitee
LAMBDA, in an oral presentation addressed discrimination of
lesbians and gay men in Austria and asked Mrs. Robinson for her
support.

In her answer Mrs. Robinson said that the problems presented to
her are of high importance and that she understands herself as a
patron of minorities. She will always call for international
standards to be complied with.

Text of the oral presentation to Mrs. Robinson:

The situation of ethnic and social minorities in Austria

The situation of minorities in society is an important indicator
of its liberality and tolerance.  Experience shows that
discrimination against individuals very often is based on
belonging to an ethnic, social or religious minority. Minority
groups facing particular difficulties in Austria are the six
legally recognised ethnic minorities, migrants and refugees,
lesbians and gay men as well as disabled people.

Discrimination finds its political expression in the exclusion
from certain rights, in social life, it is experienced as
prejudice, ignorance and social exclusion. Since 1994,
minorities and their supporters have been the target of several
letter bomb attacks, injuring a number of people; four members
of the Travelling community (Roma) have even been killed in a
bomb trap.

Legally recognised ethnic groups are defined as Ægroups of
Austrian citizens residing in the federal territory, having a
non-German mother tongue and a specific traditionã. These are
the Slovenians in the provinces of Carinthia and Styria, the
Croats in the province of Burgenland, the Czechs and Slovaks in
Vienna, the Hungarians in Burgenland, and the Roma and Sinti in
the whole of Austria.

One year ago, the Volksgruppenbeirat, the Ethnic Groups Advisory
Board, presented a memorandum to the Federal Government
demanding that the Republic of Austria should in its Federal
constitution officially profess its commitment to Austriaïs
cultural, linguistic and ethnic diversity, historically grown
and developed. Specific and considerable shortcomings in the
fields of education, media, usage of the minority languages in
local authorities and topographic signposting were stressed. The
Austrian government has not yet even reacted to this memorandum.

Moreover, although Austria has ratified the ÆFramework
Convention for the Protection of National Minoritiesã, Austria
has not ratified the European Charta for Regional or Minority
Languages.

The situation of disabled people is characterised by the
ignorance and non-recognition of their needs in public life.
There is no transparent (?) and operational legislation, the
current legal provisions are full of exceptions, thus there are
no uniform rules concerning suitable public transport, parking
areas or accessible buildings. Most theatres, cinemas,
restaurants and other public places do not have access or
toilets suitable for wheel-chairs.

The integration of disabled children in educational institutions
is only possible after surmounting huge bureaucratic obstacles.
The overall problem is rather seen in a medical context than in
the context of human rigths and inclusion.

As concerns homosexuals, the Austrian situation is one of the
most backward in Europe and it must be said that its reputation
in this respect is disastrous. Austria still even in its
Criminal Law is discriminating against its homosexual citizens.

The Austrian Criminal Code sets an minimum age limit for
heterosexuals and lesbians of 14 years but of 18 for gay men. So
while heterosexual and lesbian adolescents are free to engage in
self-determined consensual sexual relations from the age of 14
onwards gay male adolescents are denied this right to sexual
self-determination. Men over 19 who engage in consensual sexual
relations with a young man of 14 to 18 can be punished with
imprisonment from 6 months to 5 years. About 20 men are
convicted under this law every year and more than 50 new
criminal proceedings instituted. Penalties inflicted by the
courts are even increasing and adolescents are often pressured
by police to testify against their partners and in case of their
unwillingness to do so often subjected even to police brutality.
Respective complaints with state authorities in most cases are
not dealt with seriously. It should be underlined again that
such relations if heterosexual or lesbian do not bother any
state authority.

International organs did condemn this discrimination as
violating international human rights law. The European
Parliament in its Resolutions on the Respect for Human Rights
within the European Union in the years 1997 and 1998 called on
Austria to immediately repeal Art. 209 CC. And the European
Commission on Human Rights declared higher minimum age limits
for homosexual relations than for heterosexual ones to be in
violation of the European Convention on Human Rights. Austria
consistently is ignoring all of these decisions.

In this context, we would also highlight the 1994 decision of
the United Nations Human Rights Committee which ruled in the
submission Toonen vs. Australia that the rights of lesbians and
gay men to privacy and equality were guaranteed by the
provisions of the International Covenant on Civil and Political
Rights. What makes this decision to the most important one to
date in international human rights law, however, is that the
Committee also noted that the reference to 'sex' in Articles 2
(1) and 26 of the Covenant is to be taken as including 'sexual
orientation'.

Gays and lesbians are not protected against sexual orientation
discrimination. There is no such legislation on the
constitutional or any other legal level, banning for example
discrimination in the provision of goods and services or
outlawing collective defamation or the stirring up of hatred.

The largest area of discrimination, which has the severest
repercussions on the everyday life of lesbians and gays, is the
complete non-recognition of same-sex partnerships. This
non-recognition entails discrimination in many fields such as
housing, social insurance, inheritance, tax, immigration,
adoption, parenting and co-parenting rights, joint custody over
children, artificial insemination, etc.

In general, it can be stated that the acceptance of diversity in
Austrian society is still not as developed as in most European
countries. Comprehensive anti-discrimination legislation would
improve the situation of ethnic and social minorities in Austria
and, therefore, is one of the central demands of the human
rights movement in our country.

And we are asking you, dear Mme. High-Commissioner, for your
support in this respect and to raise these issues in your talks
with the Austrian Government, as regards the criminal
persecution of gay men. I.e. with the Austrian Foreign Minister
who in other, i.e. international, areas does carry human rights
heavily on his lips but as chairman of the conservative party
here in Austria blatantly blocks any reform which would end this
shameful criminal persecution of gay men.

PARTNERS MEASURE INTRODUCED IN GERMANY
By Rex Wockner

Three German states have introduced a bill in the upper house of
parliament, the Bundesrat, to ban discrimination against
same-sex couples.

The measure extends to gay partners nearly every privilege of
matrimony -- including access to adoption and the right not to
testify against each other in court.

If Helmut Kohl's center-right government loses office in
September's federal elections, the measure has a good chance of
becoming law, activists said.

Meanwhile, more than 200,000 people turned out for Berlin's gay
and lesbian pride parade June 28, walking from the glitzy
Kurfuerstendamm shopping street to Bebelplatz Square on the east
side of the city.

At the post-parade rally, gay Member of Parliament Volker Beck
demanded that gays be allowed to marry.

ROMANIA REJECTS LEGALIZATION OF HOMOSEXUALITY
By Rex Wockner

Romania's Chamber of Deputies voted down full legalization of
homosexuality June 30, setting the nation up for a conflict with
the Council of Europe and imperiling its hopes of joining the
European Union and NATO.

"It would be immoral to legalize homosexual sex," said Christian
Democrat MP Emil Popescu. "Homosexual couples are sterile. They
cannot breed. We want a healthy nation."

Current law states: "Same-sex relations taking place in public
or resulting in a public scandal shall be punished by one to
five years imprisonment. Enticing or seducing a person to
practice same-sex relations as well as propaganda, association
or other forms of proselytizing with the same aim shall be
punished by one to five years imprisonment." 

Gay activists say the wording of the law not only outlaws gay
organizations but also criminalizes private relations between
consenting adults if some member of the "public" manages to
become "scandalized" by the relationship. 

"Romania has missed again the chance to part from a repressive
and archaic legislation which serves a totalitarian mentality
and a police-oriented practice which have brutally and
repeatedly violated human rights in Romania," commented the
Bucharest gay group ACCEPT.

BLEAK NEWS ON THE REFORM OF THE MILITARY JUSTICE CODE
By Cesar Leston, Fundacion Tri ngulo

The Spanish Lower House Defence Comittee has been assessing the
Discipline Regulations of the Army. In spite of the initial
aims, this text retains the considerations currently in force on
"attempt against military dignity" a real nice way to call
pursuits against same-sex relationships one of whose member is
in the Army. The final draft was eventually voted by a plenary
session of the Lower House of Parliament (Congreso de los
Diputados) at the end of June with no changes on this issue.

The liberal and democristian catalans in CiU asked for this
wording ("relationships endangering military honour") in section
8.22 of the law to be removed from the text during the
Commission draft phase, something which was eventually not voted
in such phase mainly because of procedimental reasons.

At the moment of the voting in plenary session, the MP's from
CiU eventually voted against any such changes in section 8.22
after high pressure from the Government benches and Ministry of
Defence officials.

Nevertheless, after she was warned by the Fundaci¢n Tri ngulo,
the socialist Congresswoman Ms Carmen Calleja made a brilliant
speech hinting that such wording had always been used and could
equally be used hereinafter as well to hamper sexual freedom.
The parties sustaining section 8.22 (PP in office and CiU
mainly) stated publically though that this article can not be
used merely on the grounds of a same-sex intercourse. The ball
is now on the roof of the military courts (usually very
conservative) when they will have to face a judiciary case where
"military honour" and same-sex intercourse come together.

Currently in a professionalization process, where conscription
will be abolished in a maximum period of five years, this is
still bad news for the future of the Army. Applicants coming
from the most varied sectors will certainly not be attracted by
low wages and the, no matter how vague, likelyhood of being
pursued for such an undefinable thing as "military honor". With
this measure in force, diversity is not likely to become an
asset of our Army.

The parties in parliament have  declared nevertheless that
article 8.22 of this law will under no circumstance will be used
against free sexual options (as stated in Parliament records,
something very important in a Court case). Nevertheless, recent
rulings from military courts -using the law currently in force,
with the very same wording for this issue- show terrific
ressemblances with those used by civil courts during the Franco
period, when homosexuality was explicitly forbidden.

ILGA-EUROPE LAUNCHES EU REPORT

ILGA-Europe's brand-new report "Equality for Lesbians and Gay
Men - A Relevant Issue in the Civil and Social Dialogue" which
was first presented at the European Social Policy Forum
organised by the European Commission in Brussels 24-26 June
1998, is now available at ILGA-Europe's internet page under the
following address: http://inet.uni2.dk/~steff/report.htm

The publication of this 104-page report is part of a project
(with the same title) for which ILGA-Europe had received funding
from DG V; the project is also financially supported by the
Austrian Federal Ministry for Labour, Health and Social Affairs
and the Austrian Federal Minister for Women's Affairs and
Consumer Protection. Donations to the costs of the project were
also received from UNISON (the public sector trade union in the
United Kingdom) and two of ILGA-Europe's project partners,
Landsforeningen for b›sser og lesbiske (LBL), the Danish
National Association for Gays and Lesbians, and HOSI Wien,
Austria's First Lesbian and Gay Association. 

The report contains two general chapters on the manifold forms
of discrimination gays and lesbians are exposed to in the Member
States of the EU and on the recent developments of EU law and
policy on sexual orientation discrimination as well as
contributions about the situation of lesbians and gays in the
fifteen Member States. These articles draw an exhaustive picture
of the many forms of social and legal discrimination against
lesbians and gays throughout the EU, but also of the many
positive developments in the pursuit of achieving full equality
for them. They also highlight examples of good and best practice
in this context.

ILGA-Europe has produced this report as part of a project to
promote the co-operation between non-governmental organisations
and to strenghten the social and civil dialogue. A dialogue in
which ILGA-Europe wishes to participate in a very active way at
the European level. One of the first steps in order to pursue
this aim was to apply for membership in the Platform of European
Social NGOs which was granted in March 1998. The Platform has at
the moment 25 members, all of them European federations of NGOs
working in a variety of areas, such as disability, migration,
women, children, youth, age, poverty, unemployment,
homelessness, etc. ILGA-Europe board members already
participated in the Platform's steering group meeting (Brussels,
May 1998) and a mini-conference to prepare for the Social Policy
Forum (London, June 1998). 

The report is designed as a tool and instrument to inform other
NGOs and associations in the social and human rights field about
the legal and social situation of lesbians and gay men in the 15
Member States, and provides a basis for discussion with
potential allies and partners in the fight against all forms of
discrimination.

On 25 May, ILGA-Europe had invited European social and human
rights NGOs to a first one-day meeting in Brussels to enter into
this dialogue and specifically to discuss the draft version of
the report and its recommendations. The meeting was attended by
several NGO representatives. ILGA-Europe board members and other
experts presented various aspects of the report. MEP Outi Ojala
(GUE/NGL, FIN), president of the EP Equal Rights for Gays and
Lesbians Intergroup also gave a presentation, as did Kevin Walsh
of DG V. The NGO representatives gave valuable input both to the
main chapter of the report and for the recommendations. This
meeting was also part of the ILGA-Europe project, another
meeting with social and human rights NGOs is scheduled to take
place in November of this year as part of the project. 

The report formulates a series of recommendations to improve the
situation of lesbians and gay men in the Union, recommendations
directed both at other NGOs, the social partners, the Member
States and the European Union which has been given the
competence by the Treaty of Amsterdam to take appropriate action
to combat discrimination based on sex, racial or ethnic origin,
religion or belief, disability, age or sexual orientation. 

The report will also be presented at a number of other forums
during the year 1998, including the international conference on
'Trade Unions, Homosexuality and Work' in Amsterdam in July,
EuroPride in Stockholm, the EP Intergroup mentioned above in
September, and of course, the ILGA-Europe Conference in Linz in
October 1998. At that time, French and German translations of
the report should also be available. 

AUSTRIAN PARLIAMENT FAILS TO REFORM AGE OF CONSENT LAW
by Kurt Krickler, HOSI Wien

On 17 July 1998, Austrian Parliament's conservative majority
(Christian Democrats and far right-wing Freedom Party) voted
down an amendment to a penal code reform bill providing for the
repeal of Article 209, the discriminatory age of consent law (18
for gay men contrary to 14 for heterosexuals and lesbians). The
Austrian Parliament, thus, ignored both the decision of the
European Human Rights Commission in the Sutherland versus United
Kingdom case ruling that an unequal age of consent is a
violation of the European Human Rights Convention and two
appeals by the European Parliament in 1997 and 1998 which had
urged Austria, on the occasion of the adoption of the annual
reports and resolutions on the observance of human rights in the
EU, to repeal the unequal age of consent law. Only the members
of the Green and the Liberal parties voted in favour of
abolishing Article 209. The largest group, the
Social-Democrates, was in a great dilemma and left the plenary
in a move unheard of before, because the did not want to vote
against the amendment but neither to vote for it and thus to
breach the government coalition agreement with the conservative
party.

With the same penal code reform bill, Parliament voted, however,
the inclusion of same-sex partners in the definition of "next of
kin" (or significant others) in Article 72 of the Penal Code
regulating the right to refuse to testify in court against
certain family members. This is a real precedent, for the first
time, same-sex partners have been recognised in Austria's legal
system. This amendment was tabled by the Liberal Party in the
Law Committee during the negotiations leading up to the penal
code reform Bill according to a proposal made by the gay and
lesbian organisation HOSI Wien in its statement in the hearing
process of the draft bill.

TWO PIECES OF GOOD NEWS FROM LATVIA:
By Juris Ludvigs Lavrikovs

I. AGE OF CONSENT EQUALISED.

This summer the Saeima (Latvian Parliament) adopted a new
Criminal Law ("Latvian Herald", N0. 199/200, 8 July 1998). 
Until then the Criminal Code of the Republic of Latvia, which
was an amended version of the Soviet model of the Criminal Code,
was in force.  Under the former Criminal Code the age of consent
for heterosexuals and lesbians was 16 and for gay men 18 years
of age (see Euroletter No. 57).  Article 161 of the new Criminal
Law "Sexual acts with a person who has not reached the age of
16" provides for imprisonment of up to 4 years for "sexual acts
with a person who has not reached the age of 16, where the
latter is in material or other dependence on the person
comitting the sexual act, or where such act is committed by a
person who has reached the age of 18." Thus the new Criminal Law
does not distinguish between heterosexual and homosexual acts
and defines 16 as the minimum age for all sexual acts.

The only remaining difference between heterosexuals and
homosexuals in the new Criminal Law is that the legislator has
separated heterosexual rape from violent homosexual and lesbian
acts.  At the same time, both Articles define criminal action in
a similar fashion: Article 159 "Rape" deals exclusively with
heterosexual acts committed with violence or threats of
violence, or taking advantage of victim's defencelessness
(Article 159.1), and Article 160 "Violent sexual gratification"
penalises "pederasty or  lesbianism or other forms of unnatural
sexual gratification" if such are committed with violence or
threats of violence, or taking advantage of the victim's
defencelessness (Article 160.1). Similarly, both Articles define
circumstances in which the penalty is increased - where the
victim is younger than 18 years of age, where the act is
committed by a person who has previously committed a similar
offence or where the act is committed by a group of persons
(Article 159.2 and Article 160.2), or where the act causes
serious damage to the victim or is committed against a person
younger than 14 years of age (Article 159.3 and Article 160.3). 
The reason for such separation becomes clear when the penalties
are examined.  For the criminal activities covered by Article
159 the legislator has provided for heavier punishments compared
to those covered by Article 160: 159.1 - imprisonment for up to
7 years, 160.1 - imprisonment for up to 6 years; 159.2 -
imprisonment for 5 to 15 years, 160.2 - imprisonment for 3 to 12
years; 159.3 - life sentence or imprisonment for 10 to 20 years,
160.3 - imprisonment for 5 to 15 years.

Dr.jur. Aivars Niedre, Chairman of the Latvian Council of Sworn
Advocates, who is the author of the new Criminal Law, explained
that the only reason for such separation and the heavier penalty
for heterosexual rape is that heterosexual rape can have more
damaging consequences for the victim in the form of unwanted
pregnancy.  Dr.jur. Niedre also said that documents of the
Council of Europe and European Union regarding equal age of
consent were taken into account during the adoption of the new
Criminal Law.

II. ASYLUM MADE POSSIBLE FOR PERSECUTED HOMOSEXUALS

In 1997 Latvia ratified the UN 1951 Convention Relating to the
Status of Refugees and adopted a law on "Asylum Seekers and
Refugees in the Republic of Latvia" ("Bulletin of the Saeima and
the Cabinet of Ministers of the Republic of Latvia", No. 16, 4
July 1997).  Article 2 of this law defines refugees as
individuals "who enter or have already entered Latvia because
they have a well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social
group, or political opinion".

The same law established, as part of the Ministry of the
Interior, the Centre for Refugees, which deals with applications
from asylum seekers in Latvia. Representatives of the
Homosexuality Information Centre met Ms Baiba Kozule of the
Centre for Refugees and learned that despite the fact that
lesbians and gay men are not specifically mentioned in the law,
the Centre will closely follow the UN High Commissioner for
Refugees' interpretation of the phrase "social group", which
appears in the Latvian law, as including lesbians and gay men. 
Ms Kozule said that opressed lesbians and gay men have to
demonstrate a well-founded fear of being persecuted because of
their sexuality.  Ms Kozule also gave examples when such fear is
well-founded: homosexual acts are totally banned, homosexual
persons are persecuted or their rights violated by the State
authorities, or by other individuals where the State fails ro
provide adequate protection.

NEW DUTCH GOVERNMENT COMMITTED TO OPENING UP MARRIAGE AN
ADOPTION TO SAME-SEX COUPLES
By Kees Waaldijk

On 3 August 1998 a new government was sworn in in the
Netherlands, a continuation of the coalition of the labour,
liberal and democrat parties, which have been in power since
1994. Its agreed government programme (published on 20 July)
includes a paragraph on "homo-marriage", with the following text
(my translation):

"In the interest of strengthening the equal treatment of
homosexual and lesbian couples, the Cabinet shall before 1
January 1999 introduce a bill to open civil marriage to persons
of the same sex. Before the same date a bill shall be introduced
for adoption of Dutch children by same-sex couples."

With this commitment, the new Dutch government is following the
recommendations of the lower Chamber of Parliament and of a
committee of legal experts (see
http://www.xs4all.nl/~nvihcoc/marriage.html  ). It will probably
take several years for the legislation to come into effect.
Until then same-sex couples and their children will have to make
do with the legislation on "registered partnership" and "joint
authority" which came into effect on 1 January 1998.

The government programme also includes a paragraph on
immigration of spouses and other partners. The income
requirements for legal residents of the Netherlands who want to
be joined by their foreign spouse/partner, will be equalised.
For married partners these requirements will be raised to that
already applicable to unmarried partners (of the same of
opposite sex), i.e. an income level deemed sufficient to support
a couple. This is of course bad news for the married, but it
effectively abolishes a highly controversial form of indirect
discrimination against low-income same-sex couples (who could
not enhance their immigration rights by getting married).

The new deputy minister of Justice, now responsible both for
family law and for immigration, is Professor Job Cohen, a labour
senator, lawyer, and until recently Rector of the University of
Maastricht. He is epected to do a good legislative job.

***************************
Steffen Jensen
E-mail: [email-masked] 
http://inet.uni2.dk/~steff
Tel. +45 3324 6435 or +45 2033 0840  Fax: +45 4049 5297