| Click here for a summary of Switzerland’s review at the first cycle and/or the second cycle. |
28th UPR session
Date of review: 9 November 2017
Date of report adoption: 15 March 2018
Document number: A/HRC/37/12
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SUMMARY SOGIESC issues during Switzerland’s 3rd UPR review |
I. SOGIESC issues/recommendations identified by NGOs and other stakeholders
Equality and non-discrimination
13. JS1 noted that during the 2012 UPR, Switzerland had not supported recommendations calling for new comprehensive legislation on discrimination. It referred to a study indicating considerable gaps and deficits related to the legal protection from discrimination, especially in the context of private law and with regard to LGBTI persons.
14. The Office for Democratic Institutions and Human Rights (ODIHR) indicated that Switzerland’s Criminal Code does not contain hate crime provisions although such crimes are prosecuted under discrimination and hate speech provisions.
15. JS1 recommended that Switzerland: close protection gaps by adopting new and/or adapting existing legislation at federal and cantonal level aimed at creating effective and comprehensive protection against discrimination with explicit provisions for vulnerable LGBTI persons; adapt criminal law in order to provide effective and explicit protection from hate speech against different groups including women, LGBTI, persons with disabilities, refugees and others. AI and JS2 made related observations and recommendations.
17. AI noted that a bill, allowing marriage for homosexual couples, was under discussion in Parliament. Moreover, though persons in same-sex relationships should soon be allowed to adopt the children of their partners, same-sex couples did not have access to adoption in general. It recommended that Switzerland take the necessary steps to put an end to discrimination faced by same-sex couples, in particular, by ensuring that they can marry and adopt children.
18. Transgender Network Switzerland (TGNS) indicated that trans people were still a highly-stigmatized group at the margin of Swiss society and recommended training and awareness raising about trans people and their rights especially for decision-makers at all levels of the state. JS1 was concerned that in many cases, the courts force transgender people to undergo medical interventions and to prove their infertility as a requirement for legal gender recognition, though there was no legal base for this and recommended ensuring that in legal gender recognition procedures, the civil courts do not force trans persons to undergo involuntary medical treatment.
19. JS1 noted measures recently initiated to ensure the respect of the human rights of persons with variations in sex characteristics but indicated that in practice, recommendations by the Swiss National Advisory Commission on Biomedical Ethics, endorsed by the Federal Council in 2016, were not yet implemented. JS1 recommended that Switzerland take all necessary measures to protect the bodily integrity, autonomy and self-determination of intersex persons.
Right to life, liberty and security of person
27. TGNS observed that Trans people in detention, whether because they were convicted for having committed a crime or asylum seekers pending deportation, were especially vulnerable.
Right to health
60. JS5 stated that though declining, suicide was still an important issue and encouraged Switzerland to present its suicide prevention mechanisms and ways to improve them during the UPR session. TGNS highlighted the high risk of suicide of trans people and recommended including trans people in suicide prevention plans and actions
Migrants, refugees and asylum seekers
78. AI recommended guaranteeing that persecution based on sexual orientation or gender identity was recognised as a valid asylum ground. TGNS highlighted the situation of trans people seeking asylum and difficulties faced in their asylum procedures and recommended a more careful evaluation of their specific situation.
II. Excerpts on SOGIESC issues from the national report
Sexual orientation and gender identity
48. The amendment to legislation on adoption adopted by the parliament on 17 June 2016 establishes a procedure that, in similar fashion to the adoption of a spouse’s child in a married couple, will enable persons living in a registered partnership or de facto union to adopt the child of their heterosexual or homosexual partner.
49. In a report of 25 March 2015, the Federal Council addressed the modernization of family law and concluded that it was necessary to adopt laws equating registered partnerships with marriage or allowing homosexual couples to marry. The Legal Affairs Committees of the two houses of parliament have in the meantime decided to proceed with parliamentary initiative No. 13.468 on civil marriage for all and will submit proposals for putting it into effect. Moreover, homosexual couples in a registered partnership have been able to use the same family name since 1 January 2013.
50. The Federal Council has expressed its readiness to address the issue of the legal protection of transgender persons and, against that backdrop, to consider acting on the recommendations made in resolution 2048 (2015) of the Council of Europe. The Federal Civil Status Office issued a legal opinion requesting the cantonal civil status authorities not to make surgical sterilization or reconstruction of opposite-sex genital organs a prerequisite for a legal change of sex. This opinion also argues that legal recognition of a sex change should not require dissolution of the marriage or registered partnership of the persons concerned against their will.
51. In principle, in cases of intersexuality, an amendment to the sex recorded in the civil register should also, under current law, be ordered by a judge at the request of the parents, the child him or herself or the cantonal authorities responsible for overseeing civil status.The decision will then be recorded in the civil register and the reference to the sex will be changed. The Federal Civil Status Office has issued official statements setting out the conditions for the automatic correction of records by the civil status authorities or for correction by a judge, the aim being to facilitate corrections. In addition, discussions on drafting a law establishing a simplified procedure for recording a sex change in the civil register are currently under way.
52. Where criminal law is concerned, the parliament decided to proceed with a parliamentary initiative to expand the scope of article 261 bis to include discrimination based on sexual orientation. It has extended the deadline for addressing the initiative to the spring 2019 session.
III. Excerpts on SOGIESC issues by UN agencies
Equality and non-discrimination
17. The Committee on the Rights of the Child was concerned about incidents of hate speech against lesbian, gay, bisexual, transgender and intersex persons and recommended that Switzerland adopt comprehensive legislation against discrimination on the grounds of sexual orientation and gender identity.
18. The same Committee, the Committee on the Elimination of Discrimination against Women and the Committee against Torture recommended that Switzerland ensure that no one was subjected to unnecessary medical or surgical treatment during infancy or childhood, in line with the recommendations of the National Advisory Commission on Biomedical Ethics on issues relating to intersexuality.
IV. References to SOGIESC issues during the Working Group review
68. Canada welcomed the adoption of a legislative amendment allowing same-sex couples to adopt their partner’s children.
82. As concerned equality between men and women, Switzerland had introduced measures on, among others, combatting discrimination in wages, improving the life-work balance, encouraging women into working life and improving women’s representation in leadership, politics, training and research. However, the necessary majority had not been achieved in support of targeted budgeting for gender equality. The same was true for persons who suffered discrimination on grounds of their sexual orientation or gender identity.
83. For lesbian, gay, bisexual, transgender and intersex persons, the revision of the right to adopt had made it possible for a partner in a married couple (whether heterosexual or homosexual) to adopt a child, and Parliament had decided to follow up on the Civil Marriage for All initiative, agreeing that the penalties attached to racial discrimination should be extended to discrimination based on sexual orientation or identity. The planned reform of the Civil Code would introduce a simplified procedure for the registration of a sex change in the civil register.
126. New Zealand welcomed that Swiss persons in same-sex relationships would be able to adopt the children of their partners from January 2018.
140. The United Kingdom encouraged Switzerland to introduce more comprehensive legislation to protect lesbian, gay, bisexual and transgender persons against discrimination.
V. Conclusions and/or recommendations
Switzerland accepted the following recommendations:
146.45 Provide training to security forces, prosecutors, judges and social workers to prevent discrimination based on sexual orientation and gender identity (Israel);
146.47 Redouble efforts in all the cantons to avoid discrimination based on race, origin and sexual orientation and gender identity (Colombia);
146.48 Adopt legislation to eliminate the sterility prerequisite for legal change of gender, in conformity with the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (Sweden);
147.32 Promote awareness-raising campaigns on preventing discrimination and bullying based on sexual orientation and gender identity to the broader public, and in particular to students and teachers (Israel);
147.34 Take the necessary steps to put an end to discrimination faced by same-sex couples, in particular, by ensuring they can marry and adopt children (Germany);
Switzerland noted the following recommendations:
147.33 Introduce specific legislation prohibiting discrimination based on gender identity or intersex status (Australia);
147.35 Take measures on awareness-raising and education about the lesbian, gay, bisexual, transgender and intersex community, by developing and implementing a concrete national action plan in cooperation with lesbian, gay, bisexual, transgender and intersex civil society organizations for all levels of the State (Netherlands);
147.36 Provide State and cantonal authorities with training on human rights for the protection of the rights of transgender people (Portugal);
147.37 Ensure effective human rights training for the protection of transgender persons (South Africa);
148.42 Introduce legislation uniformly across the Confederation that explicitly protects lesbian, gay, bisexual, transgender and intersex persons from discrimination. In preparing this Act, the issues faced by lesbian, gay, bisexual, transgender and intersex persons should be taken into account (Ireland);
148.43 Take appropriate measures to introduce a law on equality of treatment taking particularly into account the interests of lesbian, gay, bisexual, transgender and intersex minorities, persons with disabilities, women and other vulnerable groups (Greece);
148.44 Adopt a policy and an action plan at the federal level to combat discrimination and violence against lesbian, gay, bisexual, transgender and intersex persons, and in particular include them in national surveys on suicides (Honduras);
148.45 Adapt the surveys conducted by the Swiss Federal Statistical Office in order to include transgender people and reflect the findings in the following universal periodic review cycle (Slovenia);
VI. Further information
You will find all documents relating to Switzerland’s third review at UPR-Info and OHCHR’s websites.