How do you deal with a homophobic father

The ban on homophobic statements and actions is included in the penal code

The electorate has approved an extension of the anti-racism penal norm. Homophobic statements and actions are now prohibited by law, giving lesbians, gays and bisexuals better protection against hatred, agitation and discrimination. The protection of intersex and trans people is not part of the penal norm.

The change in the law is due to a parliamentary initiative (13,407) submitted by Mathias Reynard (SP / VS). In March 2013, he demanded that homophobic statements and actions should also be prohibited by law, as was already the case with racism or anti-Semitism. In 2017, after around five years of discussion, the initiative culminated in a draft text by the National Council's Legal Affairs Committee (RK-NR). The RK-NR even went one step further by also wanting to protect gender identity. In view of the resistance of the Federal Council and the Council of States, however, the National Council was forced to dispense with this amendment in the process of adjusting the differences. A referendum was held against the expansion of the anti-racism criminal norm at the beginning of 2019, whereupon the bill came before the voters on February 9, 2020.

Parliamentary initiative corresponds to the demands of civil society

Mathias Reynard's request to supplement the anti-racism penal norm (Article 261bis StGB) with the penalties for discrimination on the basis of sexual orientation takes up a long-term demand from a number of international human rights organizations and numerous civil society organizations from Switzerland. Shortly before the 2014 winter session, the coalition “for people - against discrimination” called on parliamentarians to support the process in a letter.

"It is time for Switzerland to act!"

The initiative was followed by the National Council until March 2015. The Council of States' Legal Commission also approved the initiative. Although the Council of States had not yet taken a position, the RK-NR took over the lead and went beyond the demands of the Reynard Initiative in its preliminary draft.

In its report from February 2017, the RK-NR came to the conclusion that it was unacceptable "that general homophobic statements are not prosecuted by our current legislation". Under the motto "It's time for Switzerland to act!" the parliamentarians worked out a preliminary draft that provided that Art. 261bis StGB should be supplemented not only with the criterion of sexual orientation, but also with that of gender identity. In the course of the consultation of political parties and cantons, a positive balance could be drawn. Only the SVP, the FDP and the Canton of Schwyz spoke out against it.

The preliminary draft was worked out into a draft and presented to the National Council in the 2018 autumn session. He clearly approved the proposal with 118 to 60 votes. The Council of States, on the other hand, refused to integrate the criterion of gender identity. In order not to endanger the change in the law, the large chamber bowed to the will of the small chamber. As a result, only the criterion of homophobia will be integrated into the anti-racism criminal norm.

  • Pa. Iv. Reynard. Fight against discrimination based on sexual orientation
    Report of the Legal Affairs Commission of the National Council, February 3, 2017 (pdf, 3 pages)
  • Parliamentary initiative to combat sexual orientation discrimination
    Report of the Legal Affairs Commission of the National Council, May 3, 2018 (pdf, 18 pages)
  • Swiss Criminal Code and Military Criminal Law (discrimination and incitement to hatred based on sexual orientation and gender identity)
    Draft of the Commission for Legal Issues of the National Council, BBl 2018 3791 (pdf, 4 pages)
  • Parliamentary initiative to combat sexual orientation discrimination
    Summary of the consultation results, December 14, 2017 (pdf, 16 pages)
  • National Council wants to protect the entire LGBTI community against hate speech and discrimination
    News update from Pink Cross, September 25, 2018

Legal loophole

These discussions take up a legally broadly supported concern: On the one hand, the Federal Constitution indirectly covers the prohibition of discrimination on the basis of sexual orientation and gender identity through the criterion of “way of life” (Art. 8, Paragraph 2). On the other hand, the federal law on the registered partnership of same-sex couples recognizes the relationships of same-sex couples. Even so, to this day there is no legislation that protects LGBTIQ people as a group.

The so-called “anti-racism norm”, which is the only one in Switzerland to prohibit discrimination, prohibits hate speech and discrimination based on race, ethnic or religious affiliation. Statements that are directed against the sexual orientation or gender identity of a person have not yet been recorded. The loophole that remains unregulated by the standard is all the more important because the LGBTIQ community has no other effective legal remedies against such acts of discrimination.

In the case of hate speech, LGBTIQ persons can individually invoke Art. 28 ff. Of the Civil Code for the protection of personality and Art. 173 ff. Of the Criminal Code, in particular for offense. The Federal Supreme Court refuses, however, to give the associations advocating for the interests and rights of homosexual, trans and intersex people in the context of defamation offenses an opportunity to take legal action or a party position. In addition, a gay or lesbian person cannot reproach himself for defamation if homophobic comments are directed at the homosexual community as a whole.

Yes to homosexuality ...

The prevailing legal situation has been heavily criticized by civil society at national level and has been the subject of numerous international recommendations. While most European countries have legislated in this area, Switzerland remains behind and thus in fact accepts the discrimination of an entire minority.

This fact is also not unknown to the Swiss government, as it stated in its statement on the draft project of the RK-NR published on August 15, 2018. Due to the international situation, the Federal Government even feels compelled to expand Art. 261bis StGB to include the criterion of homosexuality, although it continues to be of the opinion that the law already in force offers extended protection for the persons concerned and further regulations are not required.

... but a no to gender identity

However, the Federal Council opposed the inclusion of the criterion of gender identity. As a criterion that is too “indeterminate”, it could, in the opinion of the Federal Council, “lead to an extensive interpretation and turn out to be problematic with regard to the predictability of criminal law”. The Federal Council therefore recommends that this “criterion, the scope of which cannot be sufficiently foreseen, be dispensed with”. The Council of States agreed with this point of view and thus prevented comprehensive protection of the LGBTI community.

This confirms what the 2014 report by the European Commission against Racism and Intolerance (ECRI) had already shown: namely, that Switzerland is not yet taking the problems in this area seriously enough. According to the organization Transgender Network Switzerland (TGNS), personal discrimination is widespread. The RK-NR itself also points out in its reports that transidentical or intersex people and groups are often confronted with the same discriminatory acts as homosexual and bisexual people. A Pink Cross report published in May 2018 even suggests an overrepresentation of transopendants in the violence cases identified in the period from 2016-2017.

Nevertheless, the traffic light is green

Foreign legal systems that criminalize discrimination on the basis of sexual orientation (e.g. Austria, France, Denmark or the Netherlands) also provide for the punishment of discrimination on the basis of gender identity or gender. International recommendations are also consistent with this trend. The Federal Council's position is all the more astonishing given that Switzerland took specific measures in spring 2015 to combat discrimination against trans people. With the current stance, the government shows that it does not take its duty to protect seriously - an attitude that puts into perspective all of its recent efforts (e.g. the easier change of gender in the civil status register).

Federal Council refuses statistical surveys

Another example of this attitude of the Federal Council is the refusal to separately identify those hate crimes that are committed on the basis of the sexual orientation or gender identity of the victim. The response of the Federal Council to a motion (17.3667) by Rosmarie Quadranti (BDP / ZH) from September 2017 is instructive: «An efficient, uniform and binding for all cantons data collection in the PKS in connection with" hate crimes "due to sexual orientation, Gender identity, gender expression or gender characteristics therefore remain difficult and substantial investments are likely to be necessary to achieve this goal. "

The reactions of the LGBTIQ organizations were not long in coming: As Bastian Baumann, media spokesman for Pink Cross, stated on August 15, 2017 in the 360 ​​° magazine, the waiver of federal statistics on homophobia, biophobia and transphobia shows how the state is dealing with the problem; «Namely: not at all».

Corresponding figures are, however, essential in order to take stock of the current situation, to observe the further development of the situation and to decide on necessary measures - for example the need to include homophobia and transphobia in the penal code.

LGBTIQ organizations record acts of violence on their own

This has led LGBTIQ organizations to produce statistics on their own. To this end, a coalition set up the LGBT + Helpline in late 2016 to collect data based on voluntary reports and to help victims. The first results of this platform for reporting on homo-, bi- and transphobic hate crimes in Switzerland were published in the form of a report on May 3, 2018. They allow several conclusions to be drawn: Between November 2016 and December 2017, 95 incidents were reported, almost a third of which are physical injuries. More than 80% of these cases were not recorded by the police, "especially because the victims do not trust the police or believe that the offense is not criminally relevant", as the coalition's media release said. These first data also indicate an overrepresentation of trans people among the victims. Although the report does not contain any data on French-speaking Switzerland, it clearly shows that hate crimes against homosexual, bisexual and trans people are a reality in Switzerland and that numbers and laws are needed to combat them.

comment

It is true that the anti-racism penal norm in its current form is difficult to apply. The humanrights.ch association has stated this in several articles. The norm is under political pressure. It is a difficult task to maintain the balance that this article needs for credible and effective application. However, this does not mean that the standard cannot be further developed, as the Federal Council also admits. In the context of the Valais parliamentarian's initiative, the parliamentary chambers now had the opportunity to at least partially eliminate the legal inequality of which homosexual persons are victims of all. The fact that the Federal Assembly finally wants to criminalize homophobic statements and actions as well as racist or anti-Semitic is to be welcomed.

But that is not enough - as the RK-NR has also established. All people who are discriminated against because of their sexual orientation or gender identity must be equally protected by the law. It is no coincidence that the Commission's proposal survived the phase of the National Council plenum well. It follows the social and human rights developments in Europe.

The Federal Council and the Council of States do not want to follow suit? This shows that they do not take their obligations to intersex and trans people seriously and that they lag behind the society they represent. Your disapproval of the inclusion of gender identity in criminal law is a severe blow.

But a first step has been taken and discussions on protecting gender identity have only just begun. The adoption of the Reynard initiative remains an important stage. For the first time, Art. 261bis StGB was touched. A complete reformulation of the article would be ideal: away from an anti-racism norm towards a general penal norm against hate speech or similar discriminatory acts based on religion, ethnicity, origin, sexual orientation and gender identity, lifestyle, disability and social status. At the moment, such a development is not realistic, which makes the continuation of the process initiated by the LGBTIQ community all the more urgent.

Additional information