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Legal Study On Homophobia And Discrimination On Grounds Of Sexual

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1. Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation – Denmark Birgitte Kofod Olsen Copenhagen, Denmark February 2008 DISCLAIMER: This study…
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  • 1. Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation – Denmark Birgitte Kofod Olsen Copenhagen, Denmark February 2008 DISCLAIMER: This study has been commissioned as background material for a comparative report on homophobia and discrimination on grounds of sexual orientation by the European Union Agency for Fundamental Rights. The views expressed here do not necessarily reflect the views or the official position of the FRA. The study is made publicly available for information purposes only and does not constitute legal advice or legal opinion.
  • 2. Contents EXECUTIVE SUMMARY............................................................... 3 Implementation of Employment Directive 2000/78/EC ..............................................9 Equality Bodies 10 Non-Governmental Organisations ...........................................................11 Freedom of movement..................................................................................................12 Asylum and subsidiary protection ..............................................................................14 Family reunification .....................................................................................................16 Freedom of assembly....................................................................................................18 Criminal law .................................................................................................................19 Transgender issues .......................................................................................................20 Miscellaneous ................................................................................................................25 Good practices ..............................................................................................................27 Annex 1 – Case law.......................................................................................................30 Annex 2 – Statistics.......................................................................................................44 DISCLAIMER: This study has been commissioned as background material for a comparative report on homophobia and discrimination on grounds of sexual orientation by the European Union Agency for Fundamental Rights. The views expressed here do not necessarily reflect the views or the official position of the FRA. The study is made publicly available for information purposes only and does not constitute legal advice or legal opinion.
  • 3. Executive summary Implementation of Employment Directive 2000/78/EC [1]. The Employment Directive 2000/78/EC has been implemented through the Lov om forbud mod forskelsbehandling på arbejdsmarkedet m.v.1 This Act prohibits direct and indirect discrimination on grounds of race, colour of skin, religion or faith, political opinion, sexual orientation, age, disability and national, social or ethnic origin. [2]. The Employment Directive 2000/78/EC regarding discrimination on the ground of sexual orientation has been implemented into Danish legislation only as regards to employment. [3]. For the moment there is no equality body etc in Denmark which deals with discrimination on the ground of sexual orientation within the labour market. [4]. However, the Danish government in December 2007 introduced a bill on a new Ligebehandlingsnævnet (Equality of Treatment Board). The Board will handle complaints about cases of differential treatment (in and outside the labour market) on the grounds of gender, race, skin colour, religion, faith, political opinion, sexual orientation, age, disability or national, social or ethnic origin. Freedom of movement [5]. A EU citizen may bring his/her family members, including spouse, registered partner (i.e. homosexual relationship) or cohabiting partner, children under the age of 21, or a family member who is dependent on the person in question for three months, or six months if the EU citizen is seeking employment, or for the duration of the residency of the EU citizen. However, family members must hold a valid visa if they are citizens of a country with a visa requirement for Denmark. 1 The Danish Act on the Prohibition of Differential Treatment in the Labour Market, etc. (Act of 1996 No. 459). DISCLAIMER: This study has been commissioned as background material for a comparative report on homophobia and discrimination on grounds of sexual orientation by the European Union Agency for Fundamental Rights. The views expressed here do not necessarily reflect the views or the official position of the FRA. The study is made publicly available for information purposes only and does not constitute legal advice or legal opinion.
  • 4. [6]. Generally, little statistical data is available on LGBT people, due to the fact that such information is perceived as sensitive personal information. For more information on statistics, please refer to section B.1. Statistics, below. Asylum and subsidiary protection [7]. In accordance with Articles 1 and 2 of the Protocol on the Position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark will not adopt Council Directive 2004/83/EC (29.04.2004). [8]. In general the term ‘sexual orientation’ is not perceived to fall within the Udlændingeloven2 Section 7(1) (social group criteria), and therefore persecution on this basis is as a point of departure not considered to justify qualification as a refugee according to the understanding of the term as stipulated in the Geneva Convention. However, a person might obtain a B-Status (Protection-Status) residence permit if he or she risks the death penalty or torture if expelled. A few cases are known. Family reunification [9]. In accordance with Article 1 and 2 of the Protocol on the Position of Denmark, annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark will not adopt Council Directive 2003/86/EC of 22 September 2003. [10]. If a person has relatives in Denmark, he or she can apply for a residence permit in accordance with the regulations for family reunification as defined in the Danish Aliens Act. Provided certain mandatory conditions are fulfilled, residence permits can be granted to: spouses, registered partners and cohabiting partners and children under 15 years of age. This would include spouses of the same sex if the marriage is valid under the national legislation of the State where the marriage took place. [11]. Since 1989 Danish law has allowed two persons of the same sex to register their relationship (known as a ‘registered partnership’) and with some few exceptions thus obtain the same legal status as a traditional different-sex marriage. From a statistical view this is the 2 The Aliens Act (Act of 1983 No. 226) DISCLAIMER: This study has been commissioned as background material for a comparative report on homophobia and discrimination on grounds of sexual orientation by the European Union Agency for Fundamental Rights. The views expressed here do not necessarily reflect the views or the official position of the FRA. The study is made publicly available for information purposes only and does not constitute legal advice or legal opinion.
  • 5. only point of entry for statistical information on LGTB partnerships since registered partnership only is open to same-sex couples. In 2005, 5,282 (2,774 men and 2,508 women) persons were living in registered partnerships. [12]. In accordance with Denmark’s international obligations to protect the right to family life, exemptions from the following requirements for the right to family reunification can be granted to certain groups of applicants: the 24-year age requirement, the attachment requirement, the housing requirement, the collateral requirement, and the requirement that a person’s spouse/partner has not received certain types of public assistance within the past 12 months. Freedom of assembly [13]. No particular legislation or incident of particular relevance. [14]. Freedom of assembly is constitutionally protected (as well as protected according to international human rights obligations) [15]. Section 78, part 1 of the Danish Constitution (1849): [16]. “Citizens shall, without previous permission, be free to form associations for any lawful purpose.” [17]. Section 79 of the Danish Constitution: [18]. “Citizens shall, without previous permission, be at liberty to assemble unarmed. The police shall be entitled to be present at public meetings. Open-air meetings may be prohibited when it is feared that they may constitute a danger to the public peace.” [19]. According to the legal commentary “Danger to the public peace” implies a danger of violation of common interests of considerable value, for instance if an assembly constitutes a threat to the lives or welfare of citizens or commits widespread destruction of property. [20]. In accordance to section 7 of the Danish law concerning the activities of the police (Lov nr. 444 af 9. juni 2004 om Politiets virksomhed) it is the duty of the police to secure the citizens right to assembly. [21]. Section 80 of the Danish Constitution: DISCLAIMER: This study has been commissioned as background material for a comparative report on homophobia and discrimination on grounds of sexual orientation by the European Union Agency for Fundamental Rights. The views expressed here do not necessarily reflect the views or the official position of the FRA. The study is made publicly available for information purposes only and does not constitute legal advice or legal opinion.
  • 6. [22]. “When not attacked the armed forces may only intervene towards disturbances after three times unsuccessfully having requested the crowd in the name of the King and the law to disperse.” [23]. In accordance to section 9 of the Danish law concerning the activities of the police (Lov nr. 444 af 9. juni 2004 om Politiets virksomhed) it is the duty of the police to prevent disturbances which constitutes a danger to the public peace, public order, to the lives of single persons or to the public safety. Criminal Law According to Section 266 b (1) of the Straffeloven3, any person who, [24]. publicly or with the intention of wider dissemination, makes a statement or imparts other information by which a group of people are threatened, scorned or degraded on account of their race, colour, national or ethnic origin, religion, or sexual orientation shall be liable to a fine or to imprisonment for any term not exceeding two years. Section 81 no. 6 of the Straffeloven.4 The provision now spells out [25]. explicitly that generally when sentencing, it must be considered an aggravating circumstance if an offence is based on the ethnic origin, religion or sexual orientation, etc., of other parties. [26]. The Justitsministeriet (Ministry of Justice) in 2007 established a new reporting system with reference to decisions in criminal cases where the crime has been committed on account of the victim’s race, national or ethnic background, religious beliefs or sexual orientation. The result of the reporting system will be published in spring 2008. [27]. According to guidelines from Rigspolitichefen (Commissioner of Police), the Danish police districts have since 1992 reported to Politiets Efterretningstjeneste (PET) (the Danish Security and Intelligence Service) on criminal acts which are deemed to be religiously or racially motivated. The aim is to monitor possible signs of systematic or organised criminal activity in these areas. No such arrangement has been initiated in relation to criminal acts deemed motivated by the sexual orientation of the victim. 3 The Danish Criminal Code (Act of 1930 No. 126). 4 Inserted by Act No. 218 of 31 March 2004 amending the Criminal Code.. DISCLAIMER: This study has been commissioned as background material for a comparative report on homophobia and discrimination on grounds of sexual orientation by the European Union Agency for Fundamental Rights. The views expressed here do not necessarily reflect the views or the official position of the FRA. The study is made publicly available for information purposes only and does not constitute legal advice or legal opinion.
  • 7. Transgender issues [28]. There is no official legal definition of ‘transgender’, ‘transsexual’ or ‘transvestite’ in Denmark. Section 266 b of Straffeloven5 prohibits the dissemination of [29]. statements or other information by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin, religion, or sexual orientation (introduced by Act no. 357 in 1987, according to the legal commentary probably covering transvestites/transsexualism). This interpretation of ‘sexual orientation’ also covers Section 81 no. 6 of Straffeloven6. This provision now spells out explicitly that generally, in sentencing, it must be considered an aggravating circumstance if an offence is based on the ethnic origin, religion, or sexual orientation, etc. In the Ministry of Health and Prevention’s guidelines7 on castration in [30]. order to undertake a gender reassignment, it is mentioned that besides fulfilment of the requirements in section 115 in Sundhedsloven8 he applicant has to show that his or her wish for gender reassignment are consistent and that the applicant understands the consequences of the gender reassignment. The Administrative Order on Names9 states in section 13 that persons [31]. who have not had gender reassignment surgery but who have been judged transsexual by Sexologisk Klinik (Sexological Clinic) at the National Hospital of Denmark may obtain a name change. [32]. In Denmark there is no specific law regarding gender reassignment operations. Sundhedsstyrelsen (The Danish National Board of Health) handles applications for gender reassignment operations with reference to chapter 33 in Sundhedsloven10 and Administrative Order regarding sterilisation and castration11, including in reference to gender reassignment. In section 115, subsection 1, of Sundhedsloven a person can receive permission for castration. [33]. Ligestillingsnævnet (The Gender Equality Board) has handled two complaints regarding discrimination towards transsexual persons. 5 The Danish Criminal Code (Act of 1930 No. 126). 6 Act amending the Criminal Code, inserted by Act No. 218 of 31 March 2004 7 No. 10077 of 27 November 2006, 8 The Act on Health of 2005 No. 546. 9 No. 328 of 11 May 2007 10 The Act on Health, of 2005 No. 546. 11 No. 14, 10th of January 2006 DISCLAIMER: This study has been commissioned as background material for a comparative report on homophobia and discrimination on grounds of sexual orientation by the European Union Agency for Fundamental Rights. The views expressed here do not necessarily reflect the views or the official position of the FRA. The study is made publicly available for information purposes only and does not constitute legal advice or legal opinion.
  • 8. Miscellaneous [34]. Faroese legislation only prohibits hate speech based on religion and ethnicity. However, in 2006 a proposal was adopted by the Lagting [Faroese Parliament] to include sexual orientation in the provision prohibiting hate speech in the Faroese Criminal Code. [35]. In 1994, Justitsministeriet (the Ministry of Justice) in Denmark, in consultation with the Landsstyre [cabinet of the Greenland home rule government], appointed a joint Danish and Greenland commission to review the Greenland justice system. Den Grønlandske Retsvæsenskommission (The Commission on Greenland’s Judicial System) proposed in 2004 that the section on hate speech in the Greenlandic Criminal Code should be amended to include ‘sexual orientation’, corresponding to the parallel section of the Danish Penal Code. Good practices [36]. Amendment to Lov om kunstig befrugtning i forbindelse med lægelig behandling, diagnostik og forskning m.v.12 Prior to the amendment, single women and lesbian couples were not able to receive treatment by a physician with a view to conceiving a child by artificial insemination. This proposed amendment has now been adopted by the Folketing [Danish national parliament]; henceforth, women will have the same access to artificial insemination regardless of their marital status and sexual orientation. The Act entered into force on 1 January 2007. [37]. A Parliamentary proposal is underway to allow adoption by homosexual couples. It seems that at the moment there is a majority in Parliament who support this. 12 Act 1997 No. 460; Act on Artificial Insemination in connection with medical treatment, diagnosis, research, etc. (extent of treatment in regional hospitals; assessment of parental unfitness; relaxation of the rules regarding egg donation; and extension of the storage of frozen human eggs). DISCLAIMER: This study has been commissioned as background material for a comparative report on homophobia and discrimination on grounds of sexual orientation by the European Union Agency for Fundamental Rights. The views expressed here do not necessarily reflect the views or the official position of the FRA. The study is made publicly available for information purposes only and does not constitute legal advice or legal opinion.
  • 9. Implementation of Employment Directive 2000/78/EC [38]. In March 2004 the Danish Parliament adopted an amendment to the Lov om forbud mod forskelsbehandling på arbejdsmarkedet m.v.[Act on the Prohibition of Differential Treatment in the Labour Market, etc.], in order to implement anti-discrimination directives 2000/43/EC and 2000/78/EC13. The Act on the Prohibition of Differential Treatment in the Labour Market, etc now prohibits direct and indirect discrimination because of race, colour of skin, religion or faith, political conviction, sexual orientation, age, disability and national, social or ethnic origin. The Act prohibits discrimination in connection with recruitment, dismissal, transfer and promotion as well as discrimination with regard to pay and working conditions and also provides protection against harassment. Similarly, it is prohibited to discriminate against employees as regards access to vocational education and training, continued training and retraining. The same prohibition applies to people providing guidance and training as well as people involved in work placement activities and people who are involved in the formulating rules and making decisions about the right to perform activities in professional trades and membership of workers’ and employers’ organisations. The above-mentioned amendments adopted in 2004 introduced protection against discrimination based on religious conviction (a precision in the legislative text compared to an earlier formulation) as well as the possibility of shifting the burden of proof in cases of alleged discrimination14. A victim of discrimination can bring the case before the ordinary courts unless the prohibition of differential treatment is mentioned in a collective agreement and the victim is a member of a trade union. The complaint then has to be handled by the labour market system. The above- mentioned amendments should be perceived as complete implementation of the Employment Directive 2000/78/EC. [39]. The LO - Hovedorganisation for fagforeninger (Danish Federation of Trade Unions (LO)) initiated a survey whose aim was to analyse the conditions for homosexuals on the Danish labour market. CATINET Research was responsible for the practical part of the survey.. The survey showed that only one per cent of homosexuals – whose 13 Act No. 253 of 7. April 2004 Act on the Prohibition of Differential Treatment in the Labour Market, etc. 14 Fifth Periodic Report of Denmark concerning the International Covenant on Civil and Political Rights (April 2007) DISCLAIMER: This study has been commissioned as background materi
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