Ukrainian LGBT+ couples can’t legalize their relationships, visit each other in the intensive care unit or register rights to the partner’s child who they are raising together. The law “On Civil Partnership”, the draft of which was supposed to be developed by the Cabinet of Ministers of Ukraine three years ago, should legislate their relationships. However, no significant steps in this direction have been taken until today. What circumstances determine the adoption of this law and what stands in the way?

 

LGBT+ movement in Europe: steps forward and back

In December 2020, the Swiss parliament passed the law on “marriage for all”, becoming the thirtieth country in the world to legalize the registration of same-sex relationships.

Earlier that month, the Hungarian National Assembly passed a law effectively banning adoption by same-sex couples. According to the new norms of the constitution, adoption is possible only for married and, with special permission from the state, single people. Since same-sex marriage is banned in Hungary (however, registered partnerships are allowed), and the necessary approval should be given by the Minister of Family Affairs, who promotes the conservative model of a traditional family, LGBT couples will no longer be able to become parents through adoption only by one of the partners.

The deterioration of the rights of the LGBT+ community in our western neighbor is no exception among European countries. Despite the general progress in the region, negative trends are noticeable in some countries. This is stated in the FRA survey, where FRA stands for the EU Agency for Fundamental Rights, published in May 2020. The survey was conducted among a record 140,000 LGBT+ people in 27 EU countries, the United Kingdom, Serbia and North Macedonia.

In Poland and France, the majority of respondents said that intolerance towards the LGBT+ community in their countries had increased (68% and 54% respectively). In total, six out of ten respondents avoid holding hands with their partner in public for their own safety.

These facts show that even in democracies where the LGBT+ movement has already achieved some positive changes, the struggle for equal rights continues. However, the fact that these changes are present in conservative and religious societies gives hope that one day they’ll become possible in Ukraine, too.

 

To condemn or to support: day-to-day realities of the LGBT+ community in Ukraine

The life of the LGBT+ community in Ukraine is still determined by legal and social prejudices. Its members regularly suffer from physical and psychological abuse, discrimination by law, human rights institutions and the church, and intolerance of Ukrainian society.

Thus, a survey conducted in 2016 by the Kyiv International Institute of Sociology on behalf of the LGBT Human Rights Center Nash Mir (Our World) showed that 60% of Ukrainians have a negative attitude towards LGBT people, and only 4% – positive; 45% believe that there should be certain restrictions of their rights. Of course, these figures are unlikely to remain the same today. However, from January to August 2019 alone, there were registered 279 cases of homophobia and transphobia, discrimination and other violations of the community members’ rights. In the first eight months of 2020, only 108 such cases were documented, as many events had to be canceled due to the coronavirus pandemic, which made the community less active and, consequently, reduced the number of attacks.

Insults, threats, harassment, acts of mild and moderate violence, obstruction and attacks on LGBT rallies and organizations, damage to their property, extortion, blackmail and even hate killings are documented in reports on the LGBT situation in Ukraine by the monitoring network of the Nash Mir Center.

“Murders can occur, for example, as a result of a quarrel between acquaintances over the sexual orientation of one of them,” says the Center’s expert Andriy Kravchuk. “There are also murders with self-interested motives, when a person invites a stranger on a date to their apartment, and they turn out to be a criminal,” the expert added.

A hate crime is any criminal offense committed on the grounds of intolerance, which should be considered a crime even without this motive. However, the mechanism of prosecution for hate crimes in Ukraine isn’t regulated. Article 161 of the Criminal Code of Ukraine (“Violation of citizens’ equality based on their race, nationality, religious beliefs, disability and other grounds”), doesn’t work in cases when LGBT people’s rights are violated, according to public activist Sofia Lapina.

“It’s almost impossible to prove that a person was beaten on the street not just to steal their wallet, but because they’re gay or lesbian,” the human rights activist argues.

 

“Right” and “wrong” families

In addition to security, another urgent problem for LGBT people is unequal rights. Lesbian and gay couples can’t legalize their relationship, don’t have joint property rights, can’t adopt children or register the rights to their partner’s child who they are raising together.

Article 21 of the Family Code of Ukraine defines marriage as a “family union of a woman and a man”, thus effectively making same-sex marriage impossible.

“LGBT families in Ukraine are deprived of basic spousal rights,” says Sofia Lapina. “In particular, in the medical field, they don’t have access to family insurance, visits in the hospital, in intensive care; and when the partner dies – they don’t have the right to decide what happens to their body and execute their last will,” the activist adds.

In 2017, the Nash Mir Center conducted an online survey of more than 1,500 members of the Ukrainian LGBT+ community to find out, in particular, how such couples solve problems caused by discrimination against their relationships by the Ukrainian law.

According to the survey, almost a third of the respondents looked for opportunities provided by the Ukrainian law, although this took more time and money.

A recent example of this is the private agreement signed between two women from Kyiv in November 2020. This document granted the women most of the spousal rights, regulating the acquisition of common property and simplifying the way of visiting each other in intensive care or in jail. However, such an agreement can’t recognize the women as a family at the legislative level.

Another 22.5% of those surveyed were forced to resort to illegal methods of solving problems caused by discrimination against same-sex relationships. Thus, often the only way for LGBT+ couples to visit their partner in an intensive care unit is to bribe medical staff.

59.1% of the respondents put up with the fact that it was impossible to solve the problem – even to the detriment of their own interests.

And although this survey, as the authors themselves note, isn’t representative, as it was conducted among more open and socially active members of the community, it still demonstrates the urgent need to address the issue of legalization of same-sex families at the legislative level in Ukraine.

 

Marriage and registered partnership

Today, same-sex marriages are allowed in 30 countries. However, in many countries, LGBT+ couples can also register relationships on different terms through the mechanisms of a registered, domestic, life partnership or civil union.

Usually, marriage and registered partnership imply almost the same rights and responsibilities. However, it’s usually easier to enter into a partnership and to end it. Moreover, civil partners often can’t adopt children together, but it’s possible to obtain parental rights regarding the partner’s child.

What’s more, sometimes heterosexual couples prefer civil partnership to traditional marriage because it’s convenient and modern. Thus, in France in 2014, more than 173,000 “civil solidarity pacts” were registered, which accounted for 77% of marriages concluded in the same year. 96% of couples who entered into a civil partnership were heterosexual.

In 2018, almost 209,000 French couples chose partnership.

Given the conservatism of Ukrainian society and the church, the legalization of same-sex families in our country is more likely to happen due to the law on civil partnership, rather than same-sex marriage.

 

Prospects of the law on civil partnership in Ukraine

The Ukrainian government declares its good intentions, but does nothing to implement them.

Thus, in 2015 the Action Plan for the implementation of the National Human Rights Strategy for the period up to 2020 was adopted. It provided for the development and submission to the Cabinet of Ministers of Ukraine of a bill legalizing registered civil partnership in Ukraine for heterosexual and same-sex couples, covering property and non-property rights, in particular possession and inheritance of property, support of one partner by another in case of disability, the constitutional right not to testify against your partner, with the term of execution by the second quarter of 2017.

However, no progress has been made on the issue of registered partnerships.

In the draft of the new Action Plan for the implementation of the National Human Rights Strategy, effective as of 2021, the task to develop such a bill remains. This time the responsible body was also appointed – the Ministry of Justice of Ukraine.

The largest political force in the current parliament, the party Servant of the People, doesn’t have a unanimous position on same-sex marriage, as Dmytro Razumkov, the party’s chairman at the time, said back in 2019.

In 2020, MPs from the Servant of the People party put forward certain legislative initiatives in support of the rights of the LGBT+ community, as well as a number of homophobic and transphobic bills. However, the Verkhovna Rada didn’t support any of them.

Despite the current government’s lack of interest, some versions of the law “On Civil Partnership” are already developed today.

For example, Andriy Kravchuk’s bill – he’s an expert of the Nash Mir Center. Based on the Danish example, the bill represents the so-called “model of exceptions”, when same-sex couples have all the rights that an ordinary couple has, unless otherwise provided by law. The advantage of this approach is that the law won’t need to be edited after the adoption of new legislation, the author argues.

Another version of the law “On Civil Partnership” was developed by the Ukrainian Helsinki Human Rights Union (UHHRU) and the National MSM Consortium #MSM_PRO, which consists of three organizations: Alliance.Global, the LIGA Association and Gay Forum of Ukraine.

The bill uses a “listing model”, enumerating all the rights and responsibilities of partners. It defines the legal status of civil partnership as a form of family relationship, sets the procedure for its state registration, determines personal non-property and property rights and obligations of civil partners, the consequences of state registration and termination of such partnership.

In particular, the bill provides for the acquisition of guardianship rights to the partner’s child.

However, in order for such a bill not to be “buried” in the Verkhovna Rada, the Government should initiate it, states Andriy Kravchuk.

Credit: https://www.ilga-europe.org/rainboweurope/2020

 

 

 

 

Freedom of choice

According to a study by the independent international non-governmental organization ILGA-Europe, the index reflecting to what extent the rights of LGBT people are observed in laws and state policies in Ukraine as of May 2020 is 22%. For comparison, in Slovakia this index is estimated at 30%, and in the UK it is three times higher than in our country.

In Germany, the LGBT rights index is 51%. This country allowed same-sex marriages in 2017. For three years now, not only German same-sex couples have been using this right, but also LGBT families from abroad. In particular, Ukrainians.

LGBT activist Stas Mishchenko moved to Munich four years ago. After the recognition of same-sex marriage in Germany, he married his beloved husband. In the presence of friends, family and members of the church community, their marriage was blessed during a ceremony in a Lutheran church.

Unlike in Ukraine, here Stas has never personally encountered manifestations of aggression or rejection:

“My husband and I can walk freely around the city holding hands. We don’t have to make up any stories for the landlord. To rent a bigger apartment, we published an ad in the largest Bavarian newspaper with our photo. Like, we are a young newly married family. When we talk about family at work, with new neighbors or someone else, we’re completely open.”

Germany, like any other country, isn’t completely free of homophobia, Stas adds. There are attacks on LGBT+ people, insults. But here these are exceptions rather than the rule. The law protects the community from discrimination, and its members have almost equal rights. However, there are still flaws in the adoption procedure, transgender transition process and intersex issues.

But this is a matter of time, Stas is convinced:

“People from different countries, with different religions and orientations live freely in Germany. Here I have completely new feelings for me: security, confidence in myself and the future, no need to hide something.”

 

Germany’s path to legalizing same-sex families

Despite the rise of the LGBT movement in Germany in the late nineteenth and early twentieth centuries, the brutal persecution of homosexuals by the National Socialists suppressed the community’s activity for a long time. Paragraph 175, which criminalized homosexuality, operated in its Nazi version until 1969.

Sexual relationships between members of the same sex who reached the age of 18 weren’t decriminalized until 1973. The infamous paragraph 175 was abolished in the now-united Germany only in 1994.

Volker Beck, a German politician and activist who co-authored the German “marriage for all” law, recalls that the first significant step towards legalizing same-sex family was taken by the German LGBT community in 1992.

Then, inspired by the adoption of the world’s first registered partnership law in Denmark in 1989, 250 German gay and lesbian couples announced in local councils that they wanted to register their relationships.

“Until then, all protests and mass events had taken place only in big cities. And that was the time when people read in the local press about same-sex couples in their own towns and villages as well,” the politician explains the importance of the event.

The second important factor was the adoption of the Act on Registered Life Partnerships  in 2001 (Lebenspartnerschaftsgesetz in German). This law imposed on registered same-sex couples virtually all the responsibilities related to marriage, but gave very few rights. As a result, the LGBT+ community in Germany was able to criticize the law in the constitutional court and in public in general. This brought closer the legalization of “marriage for all” in 2017, claims his “father” Volker Beck.

This law was adopted on the last day of the then-current parliament before their summer break. After lengthy discussions and delays in its adoption caused by conservative politicians, the authors settled on marriage only for same-sex couples, trying to avoid postponing the vote until the next session. Yes, the law gives full rights to lesbian and gay families, but it doesn’t solve transgender people’s problems.

“Achieved equality is a great victory, because the parliament of the new convocation with the far-right party Alternative for Germany would probably not vote for our bill,” said the politician, who fought for the right to register same-sex marriages for almost 30 years.

Another achievement of the LGBT+ community in Germany is the opportunity to get married in church. Homosexuality was officially excluded from the list of sins in 1991.

“Every love deserves to be accepted,” explains Dr. Christina-Maria Bammel, senior pastor of the Evangelical Church Berlin-Brandenburg-Silesian Upper Lusatia (Berlin-Brandenburg-schlesische Oberlausitz in German). Its Protestant religious community consists of about one million believers.

Christina-Maria Bammel says that in her community, marriages without prejudice to sexual orientation or gender identity became acceptable just before the adoption of the law “marriage for all”. However, many other Christian movements in Germany are still arguing about the marriage of LGBT+ couples. In response to the arguments of those who mention the critique of homosexuality in the Bible, the senior pastor responds that it condemns violence itself. But the wedding ceremony blesses love.

 

“The sin of Sodom” of the Ukrainian church

In Ukraine, the church is one of the most active opponents of the LGBT+ movement. And, unlike far-right organizations, which often use physical violence against the community but have no social or political influence, the church’s position is much stronger.

“Ukrainian churches are much more conservative and reactionary than their Western counterparts. Through representatives in parliament, they block all our initiatives to legally improve the situation of the LGBT+ community in Ukraine. In particular, churches oppose the criminalization of hate crimes on the grounds of sexual orientation and gender identity,” explains Andriy Kravchuk.

One shouldn’t also underestimate the church’s influence on the attitude of ordinary Ukrainians towards the community.

Thus, in 2018, Metropolitan Onufriy, head of the Ukrainian Orthodox Church (OCU), appealed to the Kyiv City Council requesting to ban the Equality March. Onufriy called KyivPride public and outright propaganda of sin, in particular sexual perversions. “Scripture strongly condemns the sin of Sodom and any other unnatural deviations,” he said in his statement.

In 2019, the now-head of the OCU Epiphanius claimed that LGBT and gender issues were “imposed by the West” and added that LGBT people “commit a sin”.

In March 2020, honorary patriarch of the OCU Filaret claimed in an interview that the Covid-19 pandemic was caused by same-sex marriages.

Such statements made by religious leaders are very dangerous, as they can lead to increased attacks, aggression, discrimination and approval of violence.

“Today, the attitude towards LGBT+ people in modern Christianity has become even more important than faith in God. Our Christians are ready to accept the spread of atheism, but strongly oppose the change in meaning of the word ‘marriage’, which seems to be the foundation of their doctrine,” says Andriy Kravchuk.

However, the human rights activist hopes that the church will change along with the gradual change of society.

 

Human rights and the court

Of course, German realities differ from the ones in Ukraine. However, positive developments in Eastern Europe show changes in societies more similar to ours.

Among the most encouraging recent events, Andriy Kravchuk mentions the European Court of Human Rights considering same-sex couples’ lawsuits against the states in our region because there’s no form of registration for same-sex relationships. For example, lawsuits against Romania and Poland.

The trial of these cases may take several years, but the decision will have a huge impact on the situation of the LGBT+ community throughout Eastern Europe, and in Ukraine as well, as the human rights activist emphasizes.

What’s important here is the indirect impact of the ECHR decision. This international judicial body determines whether the Convention for the Protection of Human Rights and Fundamental Freedoms has been violated and, if so, determines the amount of compensation the state should provide for the violation. That is, the court states that a legal problem exists and recommends that the state should take steps to resolve it. However, after such a decision, other same-sex couples from the same state can apply to the ECHR, and in a similar situation, the decision of the body should be corresponding.

After the ECHR confirmed such violations in the Greek and Italian legal systems, the governments of these countries stopped ignoring the problem and passed same-sex partnership laws to avoid damaging their reputations and paying compensation. And while in fact the majority of the population didn’t support the registration of LGBT families, the new legislation addressed existing problems and didn’t create new ones.

It’s worth noting that the ECHR takes into account the political situation in the country, i.e. analyzes whether the society is ready for certain decisions. However, if lawsuits against our neighbors keep developing in a similar way, it’s likely that in some time the ECHR will consider the cases of same-sex couples against Ukraine, which have been waiting their turn for several years.

 

The equality issue

The number of recorded violations of the community members’ rights has been growing steadily in recent years. However, this doesn’t mean a rapid increase in the violations of LGBT+ rights in the country. This reflects the growing awareness of one’s human dignity in the LGBT+ environment, the gradual transition from silence on human rights violations to active opposition.

Human rights actions raise equality issues, cause a public outcry and become a catalyst that contributes to a reassessment of attitudes towards LGBT+ people in the society.

Together with legislative initiatives, this enables the changes that Ukraine sorely needs on its way to democratic reforms, to become a state where all people are equal and their rights are guaranteed by law.

 

The Ukrainian version of this article can be found at the link.

 

This material is prepared as part of the Covering LGBT issues in transnational journalism project with the support of the Eastern Partnership Program of the German Federal Foreign Office

 

Oksana Chorna

Ukrainian journalist; Student of the Masters’ Degree Program Democracy Studies at the University of Regensburg