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Switzerland: Referendum on criminal status of homophobia to come before homosexual marriage
(Blogmensgo, gay blog of 28 December 2019) Should Switzerland consider homophobia the same way as discrimination on racial, ethnic or religious grounds, i.e. as a crime punishable under Article 261 bis of the Swiss Penal Code? This is the subject of a referendum in Switzerland, which is to be held on 9 February 2020. If the answer is yes, Switzerland will validate a law already passed by parliament that classifies homophobia as a criminal offence. If not, Switzerland sinks to the level of Italy, where homophobia as such is neither recognized nor legally sanctioned. Almost all political parties are calling for a yes vote – despite some shortcomings in the future law.
Homophobia: Current legal situation in Switzerland
Article 261 bis of the Swiss Penal Code, which lawyers refer to as the “anti-racist norm”, is intended to cover homophobic and biphobic discrimination if the electorate so decides. However, Swiss criminal law makes a distinction between individuals and groups, i.e. between discrimination or aggression against an individual or against the community to which that individual belongs. Similarly, criminal law makes a distinction between acts committed in public and those committed in private.
A natural person may take legal action if he or she believes that he or she has been the victim of physical or verbal abuse related to his or her sexual orientation. If, on the other hand, the aggression or discrimination is committed against a community, membership or group, the Swiss judiciary shall first examine which community, membership, group, etc. has committed an aggression or discrimination in order to ensure that it is in fact an offence punishable under Article 261 bis.
In Article 261 bis, the adverb public is used three times because its provisions only cover assaults and insults committed in public. If the acts are committed in public, the offender will be systematically prosecuted, but if the acts take place in private, the case will no longer fall under this Article and will be assessed on a case-by-case basis.
The article currently punishes perpetrators of discrimination or aggression on the grounds of the victims’ race, ethnicity or religion with a sentence of up to three years. However, sexual orientation or gender identity is not (yet) included.
And in the case of personal aggression against an individual person, the case is therefore assessed on a case-by-case basis. In any case, LGBT organizations cannot act as a civil party. Therefore, a plaintiff can only bring a case of LGBT-phobic discrimination to court on his or her behalf.
Article 261 bis has a very symbolic character. It concerns not only cases of racial, ethnic and religious discrimination, but also the denial of genocide or other crimes against humanity.
The parties involved
LGBT organizations and all major political parties are calling for “Yes” to protection against discrimination. Pink Cross and LOS have formed a collective that calls on the Swiss people to vote yes on 9 February 2020 and to raise a rainbow flag at their homes before the vote. A number of awareness-raising activities are planned until 9 February.
Two political parties, one of them extreme right-wing, claim to have collected 50,000 signatures, which is necessary for any referendum. Although doubts have been expressed about the methodology used to obtain signatures, the entry into force of the new law depends on the vote on 9 February.
As for religious leaders, some call for a vote for the criminalization of homophobia and others for a vote against it (see also at the end of the article).
The future law
Socialist MEP Mathias Reynard initiated a legislative initiative in 2013 to include provisions against LGBT phobia in Article 261 bis. The National Council (lower house) confirmed the text, but the Council of States (upper house) deleted discrimination on the basis of gender identity. The honorable Senators believe that gender identity, transphobia and intersexophobia are too vague terms to be included in future legislation.
In December 2019, the Parliament therefore accepted an amendment to the law that only deals with anti-gay, lesbian or biphobic discrimination. Voters have until 9 February 2020 to decide on the future of this change.
Transgender and intersex people will therefore continue to face public insults and discrimination as despicable as “trans-people are mentally ill” or “intersex people are errors of nature” without being able to defend themselves as individuals and without LGBTQI organizations being able to hold those responsible for these acts or hate speech directed against part of their community accountable.
The vote is therefore being held on a legislative text which lacks a substantial part of the original draft. The text contains no obligation for the authorities. While the prosecution of perpetrators of discrimination will be automatic, the law will not impose an obligation for prevention nor a systematic pattern of convictions.
The State is not and will not be obliged to investigate cases of hate crimes against gays, lesbians or bisexual people against a community or an individual. Only isolated initiatives, such as that of Corine Mauch, who has been Mayor of Zurich for ten years and whose community is committed to statistics and the prosecution of LGBT hostile acts. Members of Parliament have adopted a motion calling for reliable national statistics, but the Senators have not yet voted on this motion.
The only official statistics available are those concerning offences sanctioned under Article 261 bis. Since its entry into force almost twenty-five years ago (January 1st, 1995) “the anti-discrimination penal standard has hardly been applied and few convictions have been handed down”, says defense lawyer Alexandre Curchod in an interview with the Swiss LGBT magazine 360°.
Religion against religion
In 2020, homosexuality could be on the parliamentary agenda in a different way than during the final vote on Article 261 bis of the Penal Code. The members of the National Council are likely to consider a bill to open marriage to same-sex couples as early as this spring.
Homosexual couples have so far only been able to form “registered partnerships”, but only since 2007 on a national level. The case of the singer Hughes Cuénod, the oldest Swiss who has partnered up, is particularly striking. He was 105 years old then.
As yet, only heterosexual couples can enter into a civil marriage. On the other hand, homosexual couples already have the right to religious marriage in some places, and perhaps soon throughout Switzerland.
The Federation of Swiss Protestant Churches FSPC has been supporting the opening of civil marriage for same-sex couples since August 2019. And on 5 November 2019 the FSPC solemnly declared itself in favor of civil marriage for all by a very large majority (almost five out of six delegates). The FSPC is based on 2.4 million believers in 26 denominations or congregations – with a total population of 8.5 million inhabitants, which is not exactly a small number.
However, Protestant pastors are not or would not be obliged to bless homosexual couples themselves if they feel that this is not in accordance with their convictions.
With an even more overwhelming majority (33 votes in favor, 1 vote against, 3 abstentions), the Protestant Church of Geneva (EPG) voted on 28 November 2019 for an “opening of blessings for same-sex couples”. It is not quite a religious gay marriage, as civil marriage is not yet legal for same-sex couples. The EPG uses the term blessing, but it is synonymous with a marital blessing, i.e. a religious marriage with an identical liturgy for all couples, regardless of their sexual orientation.
What about the Catholics? In Switzerland, Catholic churches produce a much less friendly bell sound than Protestant churches. Some people with an absolute pitch would even call this a dissonance. So far, neither the Catholic Church nor the bishops of Switzerland have taken an official position in favor of equal rights for all couples with regard to liturgy and marriage.
Although marriage is considered a sacrament in the Catholic Church, it is not in the Protestant Church. LGBT marriages in the Protestant liturgy would therefore theoretically be of less importance than LGBT marriages in the Catholic liturgy.
However, a few initiatives here and there show a rainbow-colored spark. Thus, on 27 November 2019, an “evening of training and exchange on the acceptance of homosexuality in the church” took place in the Waldensian Catholic Church. There is still hope… but the clock is ticking.