Monthly Archives: October 2014

Draft Amendment XXXIII to the Constitution of Macedonia – Protection of Marriage or Limitation of the Right to Private and Family Life?

With this letter, BABELNOR Network calls on the international community and ask for public reactions that would prevent the constitutional definition of marriage and civil unions exclusively as unions between one woman and one man


The Government of the Republic of Macedonia has proposed changes to the Constitution
including Amendment 33 which defines marriage and civil unions, but also any other
form of registered life partnership, exclusively as a union between one man and one
woman.
Below is the text of Amendment 33 that regulates marriage, civil unions and any
other registered form of life partnership:

AMENDMENT XXXIII

1. Marriage shall be a life union solely of one woman and one man.
2. A civil union, or any other registered form of life partnership, shall be a life union
solely between one woman and one man.

macedonia_changesinlow

On the 7th of July 2014, seven proposed constitutional amendments, including the
Amendment XXXIII that was meant to provide for a ‘clearer definition’ of marriage as a
union between one man and one woman entered into Parliamentary debate along with the
other proposed constitutional amendments. These amendments, however, contained only
the definition of marriage as a union between one man and one woman. The definition of
civil union as a union between one man and one woman was not included in the proposal
but was nonetheless included in the draft amendments, which was a flagrant violation of
the procedure for constitutional changes and an audacious abuse of the decision of the
Parliament to proceed with the originally proposed constitutional amendments. On the
27th of August 2014, the seven draft amendments were passed in national Parliament and
there, the proposed Amendment XXXIII contained definitions of civil unions, or any
other registered forms of life partnership
as life unions solely between one woman and
one man.

Therefore, we are writing you to express our concerns regarding the draft constitutional
amendments in Macedonia which include the definition of marriage and civil unions
exclusively as unions between one man and one woman. We are deeply concerned about
LGBTI rights in Macedonia for there are numerous instances of human rights violations
and absence of effective protection and persecution by the state authorities. Therefore we believe that this change will only enhance discrimination, violence, and hate speech
toward the LGBTI community. The exclusive constitutional definition of marriage,
civil unions, and any other form of registered partnership is discriminatory toward
LGBTI people by restricting their right to family life and all the civil and social
rights arising from it.

The contemporary international jurisprudence has already taken a position on this issue.
In the case of Schalk and Kopf v. Austria (No. 30141/04, ECHR 2010), European Court
for Human Rights stated that the relationship of a cohabiting same-sex couple living in a
stable de facto partnership is falls into the category of ‘family life’, just as would be the
case with different-sex couples in a comparable situation. In the case Vallianatos and
others v. Greece
(29381/09 and 32684/09), the court ruled that the legislative exclusion
of registered civil same-sex partnerships presents a violation of Article 14 (Prohibition of
discrimination) taken in conjunction with Article 8 (Right to respect for private and
family life). In its Opinion on the Fourth Amendment of the Fundamental Law
(Constitution) of Hungary, from 14-15 June 2013, the Venice Commission clearly stated
that a formulation with similar restrictions to family life was not aligned with Article 8 of
the European Convention on Human Rights, calling upon the reasoning provided in
Schalk and Kopf v. Austria (see above). In other words, the state is truly completely free
to define marriage as a form of union and the forming of a family (Art.12, ECHR), but as
soon as it begins granting other rights and privileges inherent to marriage to de-facto
partnerships that cannot be considered as ‘married’ under national laws (registered
partnerships), then and sexual orientation and gender identity of such individuals must
not be an obstacle to the exercise of those rights.

If this effort of the Macedonian Government gets voted by the national Parliament and
incorporated into the national Constitution, it will create precedence in European law on
restricting the right of family life through the use of Constitutional mechanisms. This
presents a danger to the development of human rights in Europe, because it is a model
that can easily be later applied in other national contexts. To be more specific, the
constitutional restriction of international human rights standards is not regulated equally
among states in Europe. Those countries that claim supremacy of domestic constitutional
law over international law can impose constitutional restrictions that are not aligned with
international human rights law and standards, and in the same time are superior in the national legal system. In return, this can make the reaction of the International
community much more difficult and much less fruitful.

We call for and encourage all our international friends, human rights and democracy
advocates to demand from the Macedonian Parliament, President and Government not to
support Amendment 33 of the constitutional changes. Also, we call for and encourage all
our partners to inform their respective Governments of the violations that this
Amendment can impose on the right to family life, and the consequences it can have in
other national contexts.


Labris is a member of Babelnor – network for LGBTQ*-youth


LGBTI children have the right to safety and equality

Lesbian, gay, bisexual, trans and intersex (LGBTI) children are often victims of bullying and violence in schools, at home and via social media. This has a serious effect on their well-being and prevents openness about their personal identity. Like all children, LGBTI children are entitled to enjoy human rights and require a safe environment in order to participate fully in society.

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Responses to bullying

According to a survey carried out by the EU Agency for Fundamental Rights (FRA), at least 60%  of LGBT respondents had personally experienced negative comments or conduct at school because of their sexual orientation or gender identity. 80% had witnessed negative comments or conduct as a result of a schoolmate being perceived as LGBT. Given the frequency of negative behaviour directed at LGBT students, it is not surprising that the survey also found that two out of three LGBT children hid their LGBT identity while at school.

This situation is unacceptable. It puts a heavy burden on LGBTI children, many of whom are at high risk of suicidal behaviour. According to an Irish study, over half of LGBT respondents aged 25 or younger had given serious consideration to ending their lives. It is clear that bullying affects LGBTI children’s educational achievement and impedes their right to education without discrimination, in addition to their right to enjoy the highest attainable standard of health.

School should be a safe environment for all students. The European Court of Human Rights has made it clear that homophobic speech in educational settings is not protected by the European Convention’s guarantees of free expression. Confronting homophobic and transphobic intimidation requires continuous and focused attention from schools and educational authorities. UNESCO and the International Lesbian, Gay, Bisexual, Transgender and Queer Youth and Student Organisation (IGLYO) have provided detailed guidance on effective responses. Ireland has introduced legal requirements and a mandatory policy for addressing homophobic and transphobic bullying in schools, along with a concrete action plan.

Right to information

Children have the right to receive factual information about sexuality and gender diversity. Anti-bullying efforts should be supported by education on equality, gender and sexuality. The UN Special Rapporteur on the right to education has highlighted children’s right to comprehensive sexual education without discrimination on grounds of sexual orientation and gender identity. It is necessary to question stereotypes about gender and sexuality in schools. The European Committee of Social Rights has found a violation of the European Social Charter with reference to teaching materials which were “manifestly biased, discriminatory and demeaning, notably in how persons of non-heterosexual orientation are described and depicted”.

The protection of children is sometimes evoked as an argument to block the availability of information about LGBTI people to children. The Venice Commission has stressed that such arguments fail to pass the essential necessity and proportionality tests required by the European Court. There is no evidence that dissemination of information advocating a positive attitude towards LGBTI people would adversely affect children. Rather, it is in the best interests of children to be informed about sexuality and gender diversity.

Family and homelessness

Many LGBTI children experience prejudice and violence within their own families. The acceptance of LGBTI children is still difficult for many parents and other family members. The FRA survey found out that 35 per cent of young adults were not open about being LGBT within their family.  In Montenegro, I visited a shelter and a social centre for LGBTI persons where I met young people who had been rejected by their families and forced to leave their homes. The NGO running the facility was engaged in mediating between the families and LGBTI persons, and had achieved family reconciliation in some cases.

When they are forced to leave their families, young LGBTI people are at high risk of becoming homeless.Research from the UK suggests that up to 25% of homeless youth are LGBT. The current economic crisismakes it even harder for homeless young people to find a job and shelter. When LGBTI youth cannot rely on the support of their families, the result can be long-term marginalisation with a high cost to individual health and well-being. The Albert Kennedy Trust in the UK runs both temporary shelters and more permanent accommodation options for young LGBTI persons along with social and vocational support. Municipal and state-funded services for homeless people should also strive to welcome homeless LGBTI youth.

Right to self-determination

Trans and intersex children encounter specific obstacles when exercising their right to self-determination. As minors, trans adolescents can find it difficult to access trans-specific health and support services whileintersex children are often subjected to irreversible “normalising” treatments soon after birth without their consent. The legal recognition of trans and intersex children’s sex or gender remains a huge hurdle in most countries. Children are rights-holders and they must be listened to in decision-making that concerns them. Sex or gender assigning treatment should be based on fully informed consent.

LGBTI children share many common problems. In their “Vision for 2020, trans and intersex youth in Finland gave high priority to the right to grow up in a safe environment, as well as the right to information. They also stressed “the right to a legally secured life as an equal member of society” and called for inclusive equal treatment legislation.

Empowerment and protection

This vision for the future should be today’s reality. Governments already have a duty to empower and protect LGBTI children. Respect for children’s views and the protection of the best interests of the child are clearly laid out in the UN Convention on the Rights of the Child. Human rights apply equally to LGBTI children without discrimination.

LGBTI children should be able to exercise their participatory rights in all areas of life. Access to information is a basic condition enabling participation and decision-making. At the same time, LGBTI children must be protected from violence and bullying at home, in schools, on the internet, in sports and in public spaces. Child protection services, children’s ombudspersons and the police should make particular efforts to include LGBTI children in their outreach. Governments need to take systematic action to improve the safety and equality of LGBTI children.

Nils Muižnieks

 via coe.int