LGBT family rights, strategic litigation and the European Court of Human Rights
- to get knowledges on the different legal and juridical situation of lgbt families in the different european countries with the aim of planning some pilot lawsuits to bring to the european Court of human rights.
In Finland rainbow families have gained some important legal rights but still lack others. Finland is always a few steps behind its Western neighbours in LGBTI rights. Female couples and single women have legal access to assisted reproduction, but there are problems with access to public clinics and full health insurance benefits. Self-insemination is not governed by the rule of law. Same-sex couples can register but they are not granted access to equal marriage and joint adoption. However, second-parent adoption is possible since 2009. There are no legal barriers to foster parenting by LGBTI individuals and couples, but very few have applied. The agencies and the authorities do not encourage LGBTI’s to apply. Surrogacy was made illegal in 2007. Same-sex couples can become legal parents only through second-parent adoption. There are no other means available at the monent.
Social acceptance and recognition of rainbow families is on the rise. The possibility of equal marriage law has gained a lot of publicity during the past few years. Visibility of rainbow families have risen. Sexual orientation and – to a lesser decree – gender identity and expression are included in curriculum of schools. Reality on the grass root level is, however, dependent on a individual teacher. Degree of any diversity education in Finland is low due to very recent unicultural era. There are no rainbow families in school books, but there are other educational materials that represent rainbow families, all of which created by NGOs. Equality plans has to be done by all public office, universities and vocational schools, but not schools. This might be changed in the near future. Rainbow Families Association has created materials for teachers in schools and kindergartens, as well as training sessions.
Some of the things and questions that rainbow families are wondering in Finland in 2013:
What is the best way to apply for second parent adoption and how does the adoption affect in social security? Which benefits is the family entitled of after adoption? How many legal guardian can a child have? If there are more than two co-parents in the family, which are the legal rights each of them have? Can the donor/father require the recognition of paternity against biological mother’s will?
What kind of documents or agreements is it wise to make just in case, to prepare for a situation where the biological mother dies before the second parent adoption is valid?
Same-sex couples are not covered or protected under the Family Law in Greece. ECtHR convicted Greece on November 7, 2013 on the ground that the Civil Partnership law excludes same-sex couples and this is discrimination. One of the two coalition parties, namely the right wing party of Nea Dimokratia, hinted, through the Minister of Justice, Transparency and Human Rights, that that they have no intention to discuss the matter at this time.
Two other parties, the socialistic party of PASOK and the left wing party of DHMAR, proposed only an amendment in the first article of the Civil Partnership law in order to include same-sex couples with no other serious changes, and this amendment would act as a tropology in the anti-racist law that was going to be discussed in the Parliament. The standing civil partnership law does not cover inheritance, insurance and other rights even to heterosexual couples. SYRIZA, another left wing party, introduced its own bill in the Parliament that gives a solution to all above issues, but leaves parenting and adoption rights aside. Due to all these developments, our group is in contact with lawyers and human rights organizations and discusses the possibility to take the issue again to the European Court of Homan Rights (ECtHR).
At the same time, the new anti-racist law, which is the implementation of the frame-decision 2008/913/JHA, is not covering hate speech and crimes on the ground of sexual orientation and gender identity and gender expression. Namely, there is no state provision to adequately protect the LGBT community from such homophobic and transphobic acts.
Social level: The flashes and microphones of the media are having reports and interviews about LGBT issues, in the light of the ECtHR’s decision. A large portion of the society became interested in same-sex couples and other forms of family life that already exist.
More specifically, the Orthodox Church of Greece Metropolitan of Piraeus, declared that he will excommunicate any Member of the Parliament that will dare to vote in favor of the Civil Partnership bill, and in a 9-pages long letter equates same-sex couples to pedophilia, bestiality, etc.
All the conservative part of the society (from the fascist Golden Dawn party, but also K.K.E – the Communist Party of Greece- and AN.EL.-the Independent Greek party- to other religious dogmas etc) seems to embrace such views. At the same time, such statements served as a fuse that united the progressive part (antiracist and human rights organizations etc.), that opened a dialogue for other issues besides the civil partnership, like adoption for LGBT couples, or co-adoption issues etc. LGBT community found allies unexpectedly, people who could support their views in on TV, in the press or other media about the right of LGBT people to create families. (See further down for a typical example)
Education: The education system (in terms of curricula, teacher training, etc.) shows no positive or supportive attitude to LGBT issues and, in general, in issues like sex education at all educational levels. Despite the utter lack of structures for teacher training in gender issues, homophobic and transphobic bullying and sex education, people that work within the education system are systematically undertaking such initiatives (school and health education counselors) in order to push the issues positively.
In Italy rainbow families are not recognized by the State. Children with two mothers or two fathers, have only one parent for the italian State: the biological parent who is even the legal parent. The other mother or the other father of the child simply doesn’t exist. This fact has very precise consequences on families, on children and on their daily life.
The haviest is this one: in case of death of the biological parent, the State doesn’t recognize the tie between the child and the elective parent. The child is therefore considered orphan and his/her custody is granted to the next relative till the sixth degree of kinship. This means that if a child is so unfortunate to lose his or her mother, he or she will lose even the other one. Or if the child is so unofortunate to lose her father, she will lose even the second one. A double tragedy.
The question is: where is the superior interest of the child in this situation?
Other consequences are less haevy but act every day on life of children and of families. Some examples:
- the elective parent needs the proxy of the legal parent to take the child at school
- at the job, the elective parent hasn’t the right of parental permission
- the elective parent can’t take decisions on the health of the child
- the elective parent hasn’t the right to receive family allowance
- the elective parent can’t be elected in the school representative organizations
- in case of separation, the elective parent hasn’t any duty: neither of maintenance nor of assistence, education, instruction
In this situation children realize that there is a A series parent and a B series parent and feel the precariousness and the fears that afflict the parents.
No school includes in its programmes topics like gender roles, sexual orientations, the many kind of families and obviously there are no training courses for teachers on these themes.
Rainbow families are a little revolution in the italian schools. Their children attend public schools –from nursery to high schools- and parents got ready supplying teachers with children books with histories inclusive of their families, didactic handbooks with good practises, specific training courses and a network of teachers ready to share their experience earned in classroom with children with same sex parents.
The central State is completely absent. Everything comes from the good will, from the proactive attitude and from the love for children of parents, of some teachers, some librerians, some executives in charge of the educational services of some city councils……
Thanks to these bottom up actions and to the ever growing number of children in the schools, the topic of the rainbow families is always present and much-discussed in the world od school.
Families are not equal under Portuguese Law. Different sex parents and their children, genetic or adopted, can be recognized easily. Rainbow families are not, and cannot. This makes Portugal the only country in the world where same sex marriage is allowed but LGBT parents have no parenting rights.
On a day to day basis, rainbow families do create their resilience techniques – for instance, parents tend to choose schools also from the way they deal with diversity.
Yet, most schools seem to be unprepared to deal with any diversity – especially in what relates to rainbow families. Sometimes kindergarten and schools may include in their educational project values like ‘non-discrimination’ and ‘equality’ but family diversity remains unspoken.
Most exceptions to this mispreparation are due to a teacher who is attentive to equality matters or to a rainbow family in a particular school that pressures for an attitude change – and don’t follow, as it should, from a standard curriculum or an ordinary set of rules that is an everyday practice.
In Portugal, common sense tells us to shut up, to not talk about it, to keep families invisible. Some say that’s the only way to ‘protect’ children. But children read silence, feel their parents’ stress, and sense discrimination. And probably as they learn to lie or omit, shame and fear become resident.
We believe that the only way to protect children is to fight discrimination that may surrounds them, and promote their unquestionable right to the family they recognize as their own.
And we know that love makes a family.
Same-sex couples can register their partnership in Switzerland, yet in many respects they remain at a disadvantage compared to married couples. Adoption, second-parent adoption and medically assisted insemination are prohibited by law. In terms of children’s and parental rights, same-sex couples are thus heavily discriminated against. Their children are hit particularly hard by this discrimination, because they are unprotected on issues of child support, custody, succession and the right to personal contact after a separation. Yet because of international agreements, there are already rainbow families currently living in Switzerland who are legally recognised and protected.
There currently are political efforts under way that aim to repeal the ban on second-parent adoption. One motion demands that all adults – irrespective of their marital status or their sexual orientation – can adopt a child, specifically their partner’s child, provided an adoption is in the best interest of the child. Parliament has approved this motion by a significant margin. The consultation process on the corresponding draft bill started on 29 November 2013. After Parliament will decide on it yet again, the draft bill will be subject to a three-month optional referendum period. If the referendum against second-parent adoption is launched, the Swiss population will need to vote on it, probably in 2016.
Experts estimate that between 6,000 and 30,000 children are growing up in rainbow families in Switzerland. The families are generally well integrated and accepted in their social environment. The Same-Sex Partnership Act, which entered into force in 2007, has strengthened the recognition of same-sex relationships and, with it, the recognition of same-sex parenthood. But the media, schools and policymakers nevertheless continue to hold up the traditional nuclear family and the heterosexual model as the paragon of societal norm. Absent a statutory basis, the concerned families face substantial challenges in contact with authorities or educational institutions, because they often come up against persons harbouring conscious or subconscious reservations against their way of life. Prestigious child advocacy organisations such as Pro Juventute Switzerland and Kinderschutz Schweiz (Swiss Foundation for the Protection of the Child), Pflegekinder-Aktion Schweiz (Campaign for Children in Foster Care) and the umbrella organisation Pro Familia Switzerland join the Swiss Rainbow Families Association in pointing out this deplorable state of affairs and in supporting the legal and societal recognition of rainbow families.
LGBT persons in Switzerland follow a variety of paths to create their families. Female couples, for example, search for a suitable man in their environment for a sperm donation or they take advantage of foreign sperm banks. Some same-sex couples take in foster children; others form a family with a single man or woman or with an opposite-sex couple. Or a single gay man starts a family with a single lesbian woman. Some families are constituted through adoption or surrogacy abroad. In rare instances, a single LGBT person adopts a child. Same-sex couples where one parent is trans* can also become their children’s biological parents.