Subject: [euroletter] EuroLetter 79
From: "Steffen Jensen" <[email-masked]>
Date: Sat, 29 Apr 2000 23:39:39 +0200

EURO-LETTER
No. 79				 				 	April 2000

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]:
http://www.steff.suite.dkFax: +45 4049 5297Tel: +45 3324 6435 Mobile: +45
2033 0840Mail: c/o Steffen Jensen, Gl. Kongevej 31, 4.th, DK-1610 Copenhagen
V, Denmark

You can receive Euro-Letter by e-mail by sending an empty message to
[email-masked] and from no 30 onwards the Euro-Letters are
available on the Internet at http://www.steff.suite.dk/eurolet.htm and at
http://www.france.qrd.org/assocs/ilga/euroletter.html

IN THIS ISSUE
ILGA-EUROPE COMMENTS TO DRAFT CHARTER OF FUNDAMENTAL RIGHTS   OF THE
EUROPEAN UNION
UK TO ACCEPT ADOPTION BY GAY COUPLES
CANADIAN PARTNER BILL PASSES HOUSE OF COMMONS
UK HOUSE OF LORDS OK EQUAL AGE OF CONSENT
LETTER TO SELECTED MEMBERS OF THE EUROPEAN PARLIAMENT

Documents relating to ILGA-Europe can be found at ILGA-Europe's homepage
http://www.steff.suite.dk/ilgaeur/

*************************

DRAFT CHARTER OF FUNDAMENTAL RIGHTS   OF THE EUROPEAN UNION
Submission of ILGA-Europe , the European Region of the International Lesbian
and Gay Association, to the Charter Convention

1. Summary
ILGA-Europe’s main recommendations are as follows:

The non-discrimination article of the Charter should include every ground of
discrimination listed in Article 13 of the EC Treaty and Article 14 of the
European Convention on Human Rights.  The list in Article 13 EC, adopted in
1997, includes three important new grounds, disability, age and sexual
orientation, which do not appear in the list in Article 14 of the
Convention, adopted in 1950. However, ILGA Europe would wish to see the
combined EC Treaty/Convention list supplemented in the European Union
Charter by one additional ground, gender identity. We believe that this
would serve to emphasise the need for protection from discrimination of a
small, but very vulnerable group, transgendered people.

Article 13, Family Life of the draft Charter should be worded to recognise
the diversity of family life in today’s Europe.

2. NON-DISCRIMINATION

2.1 The inclusion of sexual orientation in the list of  prohibited grounds
of discrimination
The two main arguments for the inclusion of sexual orientation in the
non-discrimination clause of the European Union Charter rest on the serious
and wide-spread nature of the discrimination, and on the numerous precedents
which now exist in European and national law for the inclusion of such a
reference.

2.1.1 The seriousness of sexual orientation discrimination

ILGA Europe has recently published a comprehensive survey of discrimination
against lesbian, gay and bisexual persons in Europe . This reveals a most
disturbing picture of the extent and seriousness of sexual orientation
discrimination in Europe, whether among Member States of the European Union,
the accession countries, or other European countries. For example:

·	Discrimination on the basis of sexual orientation can be found in the laws
or regulations of 7 Member States , and 8 accession countries.  The most
common such provision, a discriminatory age of consent (4 Member States and
6 accession countries), has been ruled a violation of the European
Convention on Human Rights by the European Commission on Human Rights.
·	4 Member States and 2 accession countries  have legal provisions or
regulations that deny employment on the basis of sexual orientation in
certain fields of state employment. The most common such provision, in the
case of the armed forces (applying in 3 Member States and 2 accession
countries), has been ruled a violation of the Convention by the European
Court of Human Rights.
·	Studies in Sweden and the UK show that employment discrimination by
individual employers is extensive. For example, a 1997 report by the Swedish
Ministry
of Labour included a survey of 650 lesbian, gay and bisexual persons. 12%
said they had been turned down for a job as a result of sexual orientation,
8% had been denied promotion, and 8% had been forced to leave their job.
·	Homophobic violence is very common, as surveys in Ireland, Sweden and the
United Kingdom have revealed.  Typically, around a quarter of respondents in
these surveys had been the victim of a violent attack. It is clear that in
many European countries it can be very dangerous to identify oneself in
public places as gay.
·	Only 4 Member States and one accession country  accord a significant
degree of legal recognition to same-sex partnerships (none of which is
without discriminatory elements).

Inclusion of sexual orientation in the non-discrimination clause of the
European Union Charter is made all the more necessary by:

·	the failure of so many governments to recognise that sexual orientation
discrimination is as pernicious and as damaging as other forms of prohibited
discrimination, and to take steps to eliminate it both from their own laws
and regulations, and to counter it in society generally;
·	The fact that many people, both in public life, and as private citizens,
still consider the expression of homophobic attitudes to be legitimate and
respectable.

2.1.2 Precedents in European and National Law
The European Community has express competence to combat sexual orientation
discrimination under Article 13 of the EC Treaty, inserted by the Treaty of
Amsterdam in 1997.  This is a most important precedent, in the light of
which the exclusion of  sexual orientation discrimination from the
non-discrimination clause of the Charter would be highly anomalous.  Indeed,
omission from the Charter would represent a signal that the Union had
weakened its view as to the unacceptability of sexual orientation
discrimination.

Although the European Convention on Human Rights does not make explicit
mention of sexual orientation, a recent judgment of the European Court of
Human Rights recognises that sexual orientation discrimination is a
prohibited ground of discrimination under Article 14 of the Convention.
Moreover, the Parliamentary Assembly of the Council of Europe voted in
January 2000 to support a recommendation that sexual orientation be included
in the list of prohibited grounds in the new draft Protocol No 12 to the
Convention, which is currently under consideration by the Committee of
Ministers. It took the view that explicit reference should be made to
grounds of discrimination that were “especially odious”, and that sexual
orientation discrimination was amongst these.

Since the 1970s, national anti-discrimination legislation and bills of
rights in national constitutions, within and outside Europe, have
increasingly recognised sexual orientation discrimination. Within the Member
States of the European Union, the term ”sexual orientation” (or a similar
ground intended to cover sexual orientation) appears as a prohibited ground
of discrimination in the legislation of 8 states: Denmark, Finland, France,
Ireland, Luxembourg, the Netherlands, Spain and Sweden. It also appears in
the legislation of one accession country, Slovenia, in that of two other
European countries, Iceland and Norway, and in that of seven countries
outside Europe, Canada , Australia , the United States , Israel, Namibia,
New Zealand and South Africa. Moreover, in four countries, South Africa
(1993), Ecuador (1998), Fiji (1998) and Switzerland (1999), sexual
orientation (or a similar ground intended to cover sexual orientation) is
included in the non-discrimination provision of the national constitution.

2.2 Gender Identity

2.2.1 ILGA-Europe submits that the non-discrimination article of the EU
Charter should also include the ground “gender identity” so as to make it
clear that people who are transsexual or transgender  are protected and in
recognition of the particular vulnerability of this group.

2.2.2 The seriousness of discrimination
Transsexual and transgender people are one of the most vulnerable minorities
in Europe. Their relatively small numbers make it extremely difficult for
them to obtain any protection against discrimination through new
legislation. They face violence, harassment and the denial of jobs or
services because their gender identity or expression does not correspond
with their recorded birth sex.  The discrimination they face can be quite as
severe as that faced by other groups who traditionally are accorded specific
protection by national and international anti-discrimination legislation.

When a transsexual person undergoes gender reassignment, some countries
refuse to acknowledge the change of their social gender and/or the change of
their body morphology . In these states transsexual people are forced to
endure the almost daily humiliation of revealing their birth sex in many
practical areas of life, so making them vulnerable to discrimination and
prejudice regardless of the success of their gender role transition. The
European Court of Human Rights condemned this practice, where forced
disclosure of birth sex is sufficiently frequent, by finding a violation of
Article 8 in B. v. France (1992). In that case, the applicant could not
legally change her male forename, and could not prevent the disclosure of
her birth sex (male) in documents such as her national identity card and her
passport, and in her social security number.

Additionally this failure to recognise their new gender role means that for
many they are effectively unable, in law, to found families and to take on
the full social responsibilities embedded within the family.

2.2.3 Increasing recognition at the European and national level
There is throughout Europe ever wider recognition of transsexuality both by
legislation and judicial decision and sex change surgery is allowed in every
member state of the European Community.

In 1989 the Parliamentary Assembly of the Council of Europe adopted
Recommendation 1117 on discrimination against transsexuals and a Resolution
on the condition of transsexuals, which in cases of transsexualism called on
Member States to introduce legislation whereby

	“all discrimination in the enjoyment of fundamental rights and freedoms is
prohibited in accordance with Article 14 of the European Convention of Human
Rights.”

Moreover, despite the extreme difficulties that transsexual people
experience in attempting to invoke the legislative process, there have been
in the 1990s a growing number of precedents within countries for express
protection. The anti-discrimination legislation of a number of cities in the
USA includes “gender identity” as a prohibited ground . In the US state of
Minnesota, anti-discrimination legislation defines “sexual orientation” as
including “having ... a self-image or identity not traditionally associated
with one’s biological maleness or femaleness”  and in California gender and
gender expression are protected categories under the state’s Hate Crime’s
legislation .
Discrimination against transsexual persons is also expressly prohibited in
South Australia  and in the Northern Territory of Australia  where the
ground sexuality is defined to include ‘transsexuality’, and in the
Australian Capital Territory, where “transsexuality” is a separate
prohibited ground . In New South Wales in Australia  discrimination is
prohibited ‘on transgender grounds’ and the legislation refers to people as
‘being transgender’.

2.3 A Non-Exhaustive List of Grounds
The Charter’s non-discrimination article will establish a general
non-discrimination principle for the EU.  Such a general principle can only
be established if the list of grounds in the article is open-ended or
non-exhaustive, as is the case in Article 14 of the European Convention (“on
any ground such as ... or other status”), Article 2 of the Universal
Declaration of Human Rights (“without distinction of any kind, such as ...
or other status”), or Article 26 of the International Covenant on Civil and
Political Rights (“on any ground such as ... or other status”).

The current draft of the Charter’s non-discrimination article – Draft
Article 19(1) (CHARTE 4137/00 – CONVENT 8) is not open-ended. It should
therefore be reworded as follows:
“1.  Any discrimination based on any ground such as ... or other status
shall be prohibited.”

3. PRIVATE AND FAMILY LIFE
The European Convention on Human Rights includes respect for private and
family life in one article, with the following wording: “the right to
respect for private and family life”.

The most recent draft of the text covering private and family life available
at the time of writing (CHARTE 4149/00 CONVENT 13) separates the right to
respect for family life from that for private life by placing it in Article
13, Family Life, and refers to “privacy” rather than “private life”. We
believe that it would be preferable for the Charter to follow the approach
used in the Convention:

a. “Private life” is a concept that has been interpreted by the European
Court and Commission of Human Rights in a large number of published
decisions.  “Privacy”, found in Article 26 of the International Covenant on
Civil and Political Rights, may or may not have the same breadth as “private
life”, and has been interpreted in relatively few cases by the United
Nations Human Rights Committee.

b. “Private life” should also appear in the same article as “family life”,
to emphasise, as the European Court of Human Rights has done in its case
law, that family life can exist between cohabiting partners in the absence
of a marriage.  In both Article 2 of the Universal Declaration of Human
Rights and Article 26 of the International Covenant on Civil and Political
Rights, the reference to “privacy” is followed immediately by a reference to
“family”.  This is logical in that “family life” is one of the most
important aspects of a person’s “private life”.

4. RIGHT TO MARRY AND TO FOUND A FAMILY
The most recent draft of the article on Family Life (CHARTE 4149/00 CONV 13)
reads as follows:

“Article 13. Family life
1. Everyone has the right to respect for his family life.
2. Everyone has the right to marry and to found a family, according to the
laws of the
Member States governing the exercise of this right.
3. Protection of the family on a legal, economic and social level shall be
ensured.”

As noted above, we believe that the “right to respect for family life”
should be moved to Article 12, Respect for Private Life.

In addition, we suggest that Draft Article 13(3) should be amended as
follows:

“3. Protection of families on a legal, economic and social level, and
recognition of their diversity, shall be ensured.”

It is abundantly clear at the dawn of the 21st century that we can no longer
speak of “the family”, as if every family in the EU consisted of a married
heterosexual couple and their children living together.  We would not speak
of “the religion”, because there are different religions in the EU.
Similarly, there is now a variety of forms of “families” in the EU, and the
EU Charter must provide for the recognition of this social reality.

5.  LEGAL STATUS OF CHARTER
ILGA-Europe considers that the Charter must be incorporated in the European
Union Treaties, so as to avoid amounting to no more than an ineffectual
declaration.

6. THIRD COUNTRY NATIONALS
ILGA-Europe supports the complete and express recognition of the fundamental
rights of third country nationals within the territory of the European
Union.

UK TO ACCEPT ADOPTION BY GAY COUPLES
By Eben Black, Chief Political Correspondent Sunday Times (April 24th)

Tony Blair is preparing to make it easier for gay couples to adopt children,
a move that would be seen as putting them on a par with married
heterosexuals.

He is planning a new national adoption scheme that would force councils to
consider gay would-be parents' applications, which most reject outright at
present.

The disclosure dismayed family campaigners.  Valerie Riches, director of
Family and Youth Concern, said:  "This government is beholden to the gay
lobby.  It is very serious for the institution of marriage, which is the
safest and best way to bring up children." The government announced last
year that it was to review adoption after figures showed that there were
more than 50,000 children in care homes.  The initiative was given added
impetus in the wake of a sex abuse scandal at care homes in north Wales,
where at least 150 children were abused.

A summit meeting of adoption workers and council social services
professionals will be hosted in Downing Street by John Hutton, the health
minister, on Tuesday.

By making adoption easier, Blair aims to end the frustration that many
couples feel at the delays and curbs placed on their applications.  At
present, nearly 1,300 would-be parents are waiting to adopt, although there
are 5,000 children who have been approved to join families.

In British law there is nothing to stop a gay man or woman from individually
adopting a child, subject to approval by the adoption agency, whether they
live with a lover or not.  In practice, however, very few applications are
granted.  In 1998 Cardiff University researchers found that only three out
of 2,000 approved adoptions were by gays.

Under the new national adoption plan, which will replace individual rules
and criteria imposed by local councils, officials will have to treat gay
would-be parents on the same basis as anybody else, provided they fulfilled
criteria such as good health, parenting skills, regular income and a stable
relationship.  "This is about making adoption easier and it includes gay
adoption," a Downing Street source said.

The move follows a landmark legal judgment by the law lords last year which
said a gay couple should be treated as a family.  Dame Elizabeth
Butler-Sloss, the new president of the family division of the High Court,
also said that children could be successfully adopted by gay couples.

Gay rights campaigners estimate there could be thousands of homosexual
couples who could benefit from a shift that would end prejudice against gays
adopting.  In Denmark and Holland, gays can adopt in the same way as married
couples.  Germany is considering a similar change.

Hutton last night said Britain was currently bound by a convention signed in
1967 that only individuals or married couples can adopt.  He insisted there
was no immediate intention of changing that.

But he added:  "We are revisiting the legislation.  If there is to be any
substantial reform to adoption law, we need legislation.  If there is
prejudice it has to be looked at.  What we will certainly be looking at is
how local authorities vet prospective adopters."

Felicity Collier, chief executive of the British Agencies for Adoption and
Fostering, which has been commissioned by the health department to draw up
the national guidelines, said it was "unhelpful" to exclude any group on
"arbitrary grounds". "There are not enough families coming forward for the
children waiting to be adopted," she said.  "We don't think you should
exclude people in gay and lesbian relationships."

Easing the adoption process for gays will raise questions about whether gay
couples should be treated as a "family" for other purposes, and even bring
up the controversial subject of whether gay marriages should be allowed in
Britain.

Blair is determined to sweep away rules imposed by councils, which have
included banning people weighing over 15st from adopting, introducing age
limits such as 35 years  despite the limit being within child-bearing age 
or declaring would-be parents to be either "too black" or "too white" for
mixed-race or ethnic-origin children.

Critics are concerned about adopted children in gay relationships suffering
from lack of a mother or father role model.  Rosemary Keenan, of Westminster
Catholic Children's Society, said:  "Children need a male and female role
model."

CANADIAN PARTNER BILL PASSES HOUSE OF COMMONS
By Rex Wockner

Canadian legislation that will equalize gay and straight couples passed its
final reading in the House of Commons April 18 by a vote of 174 to 72.

The measure grants gay couples all federal benefits received by common-law
opposite-sex spouses and extends to gay and straight common-law couples many
marriage rights that neither group currently has. It rewrites some 70
federal statutes in areas ranging from pensions and insurance to income tax
and prison visits.

The bill is a response to several court decisions, including last year's
Supreme Court ruling that Ontario's definition of "spouse" was
unconstitutionally heterosexist.

"This legislation is about respect," said Justice Minister Anne McLellan.
"It's about tolerance. It's about fairness."

The measure must pass through the unelected Senate, which is expected to
rubberstamp it, before it becomes law.

UK HOUSE OF LORDS OK EQUAL AGE OF CONSENT
By Rex Wockner

A measure to equalize the ages of consent for gay and straight sex at 16
received an unopposed second reading in Britain's anti-gay House of Lords
April 11. Currently gay-male sex is not legal until age 18.

The Lords still oppose the bill but because they have blocked it repeatedly
in the past, the government now has the authority to invoke the little-used
Parliament Act to change the law without the Lords' approval.

The Parliament Act can be used only when the unelected Lords repeatedly vote
down a bill that began in and passed the elected House of Commons. The act
has been used five times since 1911. Had the Lords blocked the consent bill
again, the government would have invoked the act immediately.

The measure still faces a third reading before the Lords but it is not
expected to encounter further serious opposition.

The Lords likely will seek their revenge against Prime Minister Tony Blair's
Labour government by continuing to block repeal of Section 28, a 10-year-old
law that prohibits cities from "intentionally promot[ing] homosexuality" or
teaching "the acceptability of homosexuality as a pretended family
relationship" in schools.

Because the Section 28 repeal bill began in the House of Lords, the Lords'
vote on it cannot be overridden via the Parliament Act.

LETTER TO SELECTED MEMBERS OF THE EUROPEAN PARLIAMENT
By ILGA-Europe

We, the European Region of the International Lesbian and Gay Association
(ILGA-Europe) are writing to you to express our concerns over one part of
the Naranjo Escobar draft opinion (PE 233.002) on the Non-Discrimination
Action Programme for the Budgets Committee. The opinion is due to be voted
by the Budget Committee on 22 May, with a deadline for amendments of 3 May.

Whilst the tone of the opinion is generally supportive towards organisations
working on non-discrimination issues, we are very worried by the
ramifications of amendment 7, which relates to the Annex of the proposed
Action Programme  Strand 2, Capacity Building.

Amendment 7 proposes to reduce the level of co-funding for core activities
of European NGOs proposed by the European Commission from up to 90% to 50%.

If this amendment is carried, it will have a catastrophic impact upon
European NGOs working on behalf of the most vulnerable groups in society.
Organisations affected would include those working against discrimination on
the grounds of race and ethnicity, disability, gender, sexual orientation,
and age. The effectiveness of many of these organisations to work to improve
the lives of the victims of discrimination would be seriously diminished by
a 50% co-financing requirement, as it is highly unlikely that they would be
able to secure such high levels of co-financing from other sources.

We believe that this amendment undermines the aim of Article 13 to put in
place measures which will counter the growth of discrimination.
European-level NGOs in this field play a vital role in fostering a
pan-European solidarity against discriminatory actions, a role which is
particularly critical in the context of the present political climate.

We would like to request your support, and that of your group, in opposing
amendment 7 and reverting to the original wording of the Commission
proposal. We would be very grateful for the opportunity to meet with you to
discuss this important issue, and its ramifications for the fight against
discrimination. We will contact you to see whether such a meeting could be
arranged.

The 10 % co-financing requirement already provided for in the proposal of
the Commission is certainly the maximum a relatively small organisation such
as ILGA-Europe could cope with, provided for that in-kind contribution would
be possible under any projects co-financed by the Commission.

We thank you very much for your support. For any further query, please,
contact us at the following e-mail address: [email-masked]

Steffen Jensen
E-mail: [email-masked]
http://www.steff.suite.dk
Fax: + 45 4049 5297

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