Homosexuality and Anti-Discrimination Legislation

In document Policy contexts and responses to changes in intimate life (Page 100-109)

1. Bulgaria (Mariya Stoilova)

1.7. Homosexuality and Anti-Discrimination Legislation

1.7.1. Is there law against discrimination on the grounds of sexuality/ against lesbians and gay men? What is the history of the

legislation, and its provisions? (e.g. does it relate to employment, the provision of goods and services etc?)

A new Law on Protection against Discrimination (2004) was adopted in 2004 and is one of the few that mention sexual orientation explicitly. The stated purpose of this law is threefold: to ensure each person’s equality before the law, to ensure the equal treatment of individuals and equal opportunities for participation in public life, and to guarantee effective protection against discrimination. The law includes all aspects of possible discrimination mentioned in the Constitution, such as discrimination on the grounds of sex, race, nationality, ethnic origin, origin, religion or belief, education, opinions, political belonging, personal or public status, property status. Some ‘new’ aspects have been introduced into this law, which are citizenship, disability, age, marital status, and also sexual orientation, which here is explicitly mentioned. The law defines

discrimination as direct and indirect. However a few cases are stated not to be considered discrimination; these are stated in Article 7 of the law. For example, this article allows the different treatment of persons on the basis of a characteristic, related to any of the

grounds mentioned above,

‘when the said characteristics, by the nature of a particular occupation or activity, or of the conditions in which it is carried out, constitutes a genuine and determining professional requirement, the objective is lawful and the requirement does not exceed what is necessary for its achievement’ (Article 7).

This text allows some occupations or activities to be open to discrimination (for instance age discrimination for fashion models) but the law does not explicitly define which professions. The law also allows the burden of the proof to be in favour of the victim and the defendant party must prove that the right to equal treatment has not been infringed. The law offers protection of rights the areas of employment, education and training,

provision of goods and services. The balanced participation of men and women in governance and decision-making is to be encouraged, according to the law, as well as representation of ethnic, religious or language minority groups. Sexual minority groups are not mentioned here.

This is the first law in Bulgaria to give legal definition of ‘harassment’, ‘sexual harassment’, ‘persecution’ (‘victimisation’), ‘instigation to discrimination’, ‘racial segregation’, ‘less favourable treatment’ as acts leading to discrimination (Commission for Protection against Discrimination, 2006). The Law is called ‘revolutionary for the Bulgarian judicial system’ (Mihajlova, 2006, p1) because it shifts the burden of proof and because it allows legal non-profit entities to initiate court cases and to be plaintiffs in cases when there are several victims. An example of these is the court case described in the first case study at the end of this chapter.

• Commission for Protection against Discrimination (CPD)

The Commission is created under the LPD law as an independent specialised state body for the prevention of discrimination, protection against discrimination and ensuring equal opportunities. It reports its activities annually before the National Assembly. The

participation of women and men and of ethnic minorities in it is to be protected, but again no requirements to include people from sexual minorities are stated. At the same time the law explicitly states that at least four out of the nine members of the Commission should be jurists, and all with minimum higher education attained.

According to the Annual Report of the Commission (2006) 389 complaints and signals were received during 2006. From these seven were on the grounds of sexual orientation. The investigations of the commission resulted in the conclusion that in only one of these seven cases has there been discrimination. Another two cases were based on

discrimination on multiple grounds including sexual orientation. There is an increase in the overall number of cases reported to the Commission in comparison to the previous

year: in 2005 there were 194 cases altogether.

One of the cases of discrimination in 2006 was in relation to material published in the left-wing newspaper ‘Duma’ (28.12.2005 cited in BGO ‘Gemini’, 2005) dedicated to ‘Gay Culture’. The material contained homophobic statements and was reported to the Commission by the Bulgarian Gay Organisation ‘Gemini’. The organisation and the newspaper reached an agreement that an apology would be published and the paper would not distribute any more homophobic materials (BGO ‘Gemini’, 2005). In another case a 22 – year old gay man from Albania was arrested and harassed by the police. The Commission decided that ‘there was unwanted behaviour which had either the aim or result of offending the dignity of the person and of creating a hostile and offensive or threatening environment’. The defendant was fined. The third case was related to the banning of an event of BGO Gemini by the municipality of Varna. The Commission decided that the argument for the refusal of the event seem to be neutral but in practice had led to less favourable treatment. The municipality had to pay fine of 500 Bulgarian leva.

The effectiveness of the Commission has been criticised by members of the NGO sector. For example, the Bulgarian Helsinki Committee, in its report on Human Rights in

Bulgaria (2007), stated that the Commission against Discrimination did not start working

until 2006 although the law became into power in January 2004 and its activities are described as not completely efficient. The most rigorous criticisms are regarding the inability of the members of the Commission to distinguish between the different forms of discrimination, including direct and indirect, and between discrimination and other forms of unlawful behaviour which results, according to the report, in ‘dilution of the concept discrimination’ (Bulgarian Helsinki Comettee, 2007: 30).

• Sexuality in Other Legislation

The Constitution (1991) at present does not include sexuality as grounds for

discrimination. The formulation is: ‘all persons are born free and equal in dignity and

rights. All citizens shall be equal before the law’ (Article 6). The constitution does not allow any privileges or restriction of rights on the grounds of race, nationality, ethnic self-identity, sex, origin, religion, education, opinion, political affiliation, personal or social status or property status. There have been several occasions when debate about the necessity of the changes in the Constitution was initiated. In 1992 after a suggestion from the President, the Constitutional Court revised the grounds of discrimination and the conclusion was that: ‘the social grounds on which discrimination or privilege are not allowed are exclusively mentioned in article 6’ and changing these grounds will create discrimination against or privileges for some social groups (cited in Huf and Stoichkova, 2006, p 6).

New discussions in Parliament were initiated in relation to Bulgarian EU accession. There is concern that the grounds of discrimination in the Constitution do not correspond to the Charter on Human Rights. The discussions are based around the question of whether the grounds in the Constitution have to be expanded or the membership will be enough for the direct implementation and protection of these rights (Temporary

Commission for Preparation of Proposals for Changes in the Constitution, 2004). A report submitted by the working group ‘Necessity for Constitution Changes’ formed at the Ministry of Justice recommended changes in accordance with the EU law in the Chapter of Fundamental Rights. According to the report of the Working group, the basic rights stated in the Constitution have to be extended to include genetic features, language, membership of a national minority, disability, age, and sexual orientation.

The proposed changed would make the Constitution compatible with the Charter of Fundamental Rights of the European Union (2000/C 364/01) where in article 21 states that:

Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. (Euro Parliament, 2000: 13) However, no changes in this direction have been made so far. Discrimination on the grounds of sexuality is also covered in other pieces of legislation, such as:

The Labour Code regulates labour relationships between employees and

employers, as well as other relationships immediately related to them. Article 8 of this law (in force since 01.08.2004) prohibits discrimination based on many grounds among which sexual orientation, sex, race, skin colour, age, are explicitly mentioned. The law states that ‘during the exercising of labour rights and duties no direct or indirect discrimination shall be allowed’ (Art.8) [my translation].

• The Health Law (SG 70/10.08/2004) states that the principles of provision of

healthcare are: equality in the use of healthcare; provision of accessible and quality healthcare, with priority for children, pregnant women and mothers of children up to one year old (Art.2). Article 85 provides for the assessment of the patient’s health condition, which cannot be based on sexual orientation, and also on race, sex, age, ethnic belonging, origin, religion, education, cultural level, beliefs, political belonging, personal and social status, and property status.

• According to the Bill on the Rights and Obligations of Patients (2006) every patient has the right to be respected as a person, to be treated with humanity and respect of his/ her dignity (Art. 5). Every patient has the right to self-definition (Art. 6), physical and spiritual wholeness, personal safety, and protection from economic, sexual or other form of exploitation, from physical and moral abuse and humiliation (Art. 7) and respect for her/ his personal life, moral and cultural values, and religious beliefs (Art. 8). The right to personal (intimate) sphere while treated in hospital is also recognised by this law (Article 27: 2). The same law grants the right to personal life and confidentiality (Art. 85), and to support from family, relatives and friends (Art. 56:1) while in hospital care. Access to

healthcare institutions is equal for everyone (Art.30: 2), patients with HIV, AIDS, with infectious diseases or mental disabilities have the same rights to health treatment and respect for their human dignity (Art.30: 3).

• The Professional Ethics Code (SG/79/29.09.2000) proclaims the necessity for respect of the intimate sphere of patients (Art. 27). Among the values of the doctors’ profession are: tolerance of religious beliefs, ethnic traditions, political orientation and affiliation (Art. 2:7); equal attitude towards patients with different social and material status (Art.2:8). Interestingly tolerance of different sexual orientations is not included. The code also states that all doctors have equal opportunities for practicing the medical profession, preparation and improvement regardless of their race, religion, origin, sex, age or political affiliation (Art.7). Doctors have the right to refuse to perform an abortion in cases of normal pregnancy due to his/ her moral, religious and other beliefs (Art.32).

• According to the provisions of the Judicial Ethics Code (SG 60/22.07.2005) lawyers in all their actions cannot discriminate on the grounds of sex, sexual orientation, family status etc.

• The Employment Promotion Act came into power in 2002 and according to it no

direct or indirect discrimination, privileges or restrictions are allowed based on sexual orientation, sex, ethnicity, origin, race, colour of the skin, age, political or religious affiliations, membership in trade unions and other public organizations and movements, family, social or property status, or on the basis of mental and physical disorders. The same law prohibits the establishing of conditions for employment applicants related to sex, age, nationality, ethnicity, and health status. The omission of sexual orientation here means that it is not against this act to announce a position for heterosexual people only. This however, will be

considered discrimination under the general provisions of the act or the Law on Protection against Discrimination. Still, the omission is important because it makes the legislation unsystematic.

• The Social Security Act (SG.110/17.12.1999, last amendment SG.12/13.02.2004)

has similar general provisions that do not allow insurance companies to refuse

additional voluntary insurance to individuals based on numerous grounds among which are sex and sexual orientation (Art.283).

• Sexual orientation and sex are explicitly mentioned as grounds on which

discrimination or privilege is not allowed by the Regulation of the Procedures for

Selection of State Servants (SG 6/23.01.2004)[Наредбазапровежданена

конкурситезадържавнислужители]. According to it all candidates need to

have equal access to state positions.

• The Law on the Ombudsman (2004) came into force in January 2004. The

Ombudsman intervenes when citizens' rights and freedoms have been violated by actions or omissions of the state and municipal authorities and their

administrations, or by the persons assigned with the provision of public services (Article 2). The law explicitly states who can submit complaints and signals in the following way: ‘natural persons, irrespective of their citizenship, sex, political affiliation or religious beliefs’. There is again omission of overt mentioning of sexuality.

• In the Criminal Procedure Code (SG 86/28.10.05, last amendment June 2007) there is a general provision of anti-discrimination through the formulation: ‘All citizens who take part in criminal proceedings shall be equal before the law’ (Art.1) and ‘the court and pre-trial bodies shall proceed accurately in applying the law equally to all citizens’ (Art.11). However, in the explicit mentioning of ground of discrimination or privilege sexuality is not mentioned.

• The NGO Queer Bulgaria suggest that the procedures of the Pre-Army

Commissions still treat homosexuality as ‘diversion’ based on the old formulation

of the medical standard which is still in power (Queer Bulgaria, 2004). At present the procedures create curious situations of false/ pretended homosexuality where heterosexual men pretend to be homosexual during the health expertise of the Pre-

army Commission, so that they will be freed from military service10. The health examinations include tests for AIDS and Syphilis, examinations for mental disorders and for haemorrhoids (Regulation of the Conditions, Sequence and Organisation of the Military Health Expertise, 2005, SG 24/22.03.2005).

1.7.2. Is there recognition of the problem of anti-gay violence/ hate crimes? Are there policy initiatives to combat it?

There is very little discussion of anti-gay violence and no policy initiatives whatsoever to combat it, or even to raise awareness of it. In a special report on the Bulgarian Legislation about Homosexuals (2001) The Bulgarian Helsinki Committee points out that

homosexual people are victims of police violence but no record of this is collected. Some of the discriminatory practices of the police include: collection of personal information from homosexual victims of violence that does not relate to the case; police officers refuse to register acts of violence towards homosexual people; there are unprovoked actions of the police in clubs that are frequented by homosexuals. More recent reports of the Committee (2007) outline violence in prisons and during arrests as some of the most significant violations of human rights in Bulgaria. However, all examples relate to ethnic minorities and not to anti-gay violence.

Violence is a topic raised by Bulgarian LGBT organisations. The Bulgarian Gay Organisation ‘Gemini’ published material about meetings of LGBT people in several towns in the country where violence was one of the main topics rising from the discussions. The comment on the situation is that ‘it was very often [the case that]

everyone we met preferred and accepted becoming reconciled [with violence] rather than defending their rights and looking for legal protection’ (BGO ‘Gemini, 2004, my

translation). Very little anti-gay violence gets publicity or reaches court. BGO ‘Gemini’ started a project ‘Deafening Silence: the Case in My School’ in August 2007 that will look at discrimination in 15 schools towards ‘different’ children – gay, Roma, and

10 For more information on ‘false homosexuality’: ‘Sega’ 19/01/2007 Last Calls for the Army in March;

‘Show’ 22.09.2006, pp14-15, Dr. Ilia Vrabchev: I Released Dim Dukow from Military Service.

disabled in attempt to give more publicity to these issues and to popularise good anti- discrimination practices. This campaign is not targeted at violence but hopefully some violence-related issues will be raised.

In document Policy contexts and responses to changes in intimate life (Page 100-109)