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13th UPR session
Date of review: 23 May 2012
Date of report adoption: 19 September 2012
Working Group report: A/HRC/21/8
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SUMMARY SOGIESC issues during Finland’s 2nd UPR review |
I. Key issues/recommendations identified by NGOs
- Ensure that sexual orientation and gender identity are explicitly included in the mandates of the Ombudsman for Minorities and the Discrimination Board;
- Ensure the right to recognition before the law of transgender persons without infringement on other rights;
- Protect the physical integrity of intersex persons;
- Protect students from bullying and harassment in schools on the basis of sexual orientation or gender identity;
- Accord same sex couples the same rights and recognition as opposite sex couples;
- Ensure the right of persons to seek asylum on the basis of sexual orientation and gender identity.
II. Excerpts from input reports
National report
II. Progress in promoting and protecting human rights
B. Government Human Rights Policy Report
14. The Report finds that international human rights policy must focus especially on the rights of women, children, persons with disabilities, members of sexual and gender minorities, and indigenous peoples. Special attention will be attached to the status of Roma and other ethnic or religious minorities, and to recognising discrimination on multiple grounds. The rights of persons and groups in vulnerable situations, designated as the focus of Finland, will be promoted in a pervasive manner with respect to various human rights issues.
IV. Follow-up of recommendations adopted at the previous review
A. Recommendation No. 1:
1. Measures to eliminate discrimination
65. On the autonomous Åland Islands an independent Ombudsman for Discrimination promotes equal treatment on the grounds of ethnic origin, religion and belief, disability, age and sexual orientation. An Equality Council assists the Ombudsman. The most recent study on discrimination on the Åland Islands (Upplevd diskriminering i det åländska samhället år 2010; ÅSUB report in Swedish) was published in 2010. The results showed that 28 per cent of those who replied to the survey had experienced discrimination. Gender was the ground on which people were most often discriminated against.
B. Recommendation No. 2:
Preventing racism and xenophobia, especially on the Internet
72. An amendment (511/2011) to the Criminal Code took effect in June 2011 providing additional powers to intervene in racist and other hate speech, and in other racist crimes. Public display or dissemination of opinions or other messages that threaten, slander or insult any group on grounds of race, skin colour, national or ethnic origin, religion or conviction, sexual orientation or disability, or on other corresponding grounds is punishable. The amended penal provision now also applies more clearly to hate speech disseminated using information technology (computer systems). The general grounds for increasing the severity of sanctions were also clarified to enable the foregoing grounds to be cited as aggravating circumstances.
F. Recommendation No. 6:
Review of procedures related to asylum-seekers
110. A judgment of the Supreme Administrative Court issued in January 2012 (KHO:2012:1) found that a decision to remove an asylum-seeker from the country must include a detailed analysis of whether the person concerned has reason to fear persecution on the grounds of sexual orientation. The decision clarifies certain concerns, including that of how an asylum-seeker’s risk of persecution in the country of origin is assessed.
G. Recommendation No. 7:
1. Providing the same protection for sexual orientation as for other discrimination grounds and observance of the Yogyakarta Principles
111. Improving the rights of lesbian, gay, bisexual and transgender and intersex persons is a key area in Finnish international human rights policy. Finland seeks to ensure that the UN adopts the Yogyakarta Principles as international recommendations for guiding action to equitably protect the human rights of gender and sexual minorities. Finland supports work to tackle discrimination and violence based on sexual orientation and gender identity within the framework of the United Nations.
112. In February 2012 the Ministry for Foreign Affairs organised a seminar for public authorities and parliamentarians on LGBTI, addressing the obligations of the authorities to promote the human rights of persons belonging to these groups. The seminar also highlighted international recommendations promoting realisation of the rights of members of these groups, such as those of the Committee of Ministers of the Council of Europe and the Yogyakarta Principles.
113. The recommendations of the Council of Europe include classifying sexual orientation and gender identity as prohibited grounds for discrimination in gender equality legislation, removing infertility and unmarried status as conditions for gender recognition, granting same-sex couples equal adoption rights compared to other couples, and giving LGBTI persons equal access to fertility services. A national interdepartmental working group that also includes representatives from civil society is responsible for implementing these recommendations
114. Gender equality legislation will be revised in the course of reforming non-discrimination legislation by including provisions protecting gender minorities (transgender and intersex persons and other persons belonging to gender minorities) and provisions on multiple discrimination in the Act on Equality between Women and Men, and by introducing the minimum amendments to the statutes and provisions governing monitoring of this Act that the reform of non-discrimination legislation requires
Commitment to the development assistance objective
158. Finland’s new Development Policy Programme emphasises respect for and implementation of human rights, democracy and responsibility. The starting point is a human rights-based approach to development. Particular emphasis is given to the rights of women, children, ethnic, linguistic and religious minorities and indigenous peoples, persons with disabilities, persons with HIV/AIDS, and sexual and gender minorities.
Compilation of UN information
– no references
Summary of Stakeholder submissions
I. Background and framework
B. Institutional and human rights infrastructure and policy measures
4. JS2 noted that the mandates of the Ombudsman for Minorities and the Discrimination Board included discrimination based on ethnic origin, but not on sexual orientation. The Ombudsman for Equality decided that discrimination on the grounds of gender identity and expression fall within her mandate even if not explicitly covered. JS2 stressed the importance of providing an explicit mandate for one or more Ombudsman institutions to act in cases of discrimination based on sexual orientation or gender identity.
III. Implementation of international human rights obligations
A. Equality and non-discrimination
15. While referring to the recommendations put forward to and approved by Finland in the UPR review regarding equal protection of persons based on sexual orientation and gender identity, JS2 stated that Finland failed to a high extent to adopt comprehensive strategies on protecting the human rights of lesbian, gay, bisexual, transgender and intersex people (LGBTI), contrary to those recommendations and that specific actions taken to this end had been limited. AI stated that transgender and intersex people faced discrimination by the authorities and by members of the public. Legislation lacked explicit reference to gender identity and expression as ground for discrimination. OEF considered the fact that the Equality Act contained no specific mention on its application on gender minorities as a significant shortcoming in anti-discrimination legal protection. OEF stated that persons belonging to gender minorities faced diverse problems in the attainment of equality and mentioned receiving cases of alleged discrimination including in the area of labour market, education, the provision of services, and in the gender reassignment process. JS2 noted that LGBTI people experience discrimination in services, including social and health care services and at work.
16. OEF indicated that transgender persons had been denied the right to physical integrity and to private and family life, as the relevant Act prescribed that the gender can be legally recognised only if the person concerned is infertile. AI noted that legal requirements for gender reassignment to be recognized in official documentation still required that individuals be sterilized. JS2 considered such requirement as a form of forced sterilisation. AI recommended that Finland ensure that transgender and intersex people are effectively protected from discrimination, and amend legislation to remove the sterility requirement
17. JS2 referred to studies indicating cases of bullying in schools because of sexual orientation and gender identity of students. JS2 indicated that the Criminal Code was recently amended to incorporate bias against sexual orientation as ground for increasing the punishment for common crimes. Similarly, incitement of hatred, defamation or insulting sexual minorities was specifically criminalized. Gender identity was, however, not included in these reforms. JS2 indicated that there was no systematic follow up on how hate crime cases related to sexual orientation, gender identity or gender expression were dealt with by the prosecutors or decided by courts. Moreover, there were no guidelines or instructions on how police, prosecutors or courts should handle hate crimes or other criminal offences against sexual orientation.
D. Right to privacy, marriage and family life
33. JS2 stated that the privacy of transgender people was violated. There had been problems in acquiring new certificates from schools or employers after confirmation of the new gender marker. According to the population information act amended in 2010, gender reassignment was marked in the population register, causing worries that it might be possible to create a list of transgender persons and their personal data through the population register .
35. JS2 stated that the legal right to parental leave was not fully fulfilled for families of LGBTI people. The spouses of biological mothers or fathers were entitled to paternity leave only if second-parent adoption had been approved, which might take more than half a year since the birth of the child.
36. JS2 stated that same sex couples living in a registered partnership were not allowed to adopt children together. Trans women can become legal parents of their biological children born after the legal gender reassignment only if living in a registered partnership with the mother of the child and even then only through internal adoption i.e. adopting one’s biological child. MTAR stated that as surrogacy has been banned, gay couples did not have any chance of getting children of their own, which put them on an unequal position with other couples as the legislation allowed artificial insemination to be used for both heterosexual and lesbian couples.
H. Right to health
41. JS2 stated that the National Institute for Health and Welfare had maintained transsexualism as a mental disorder.
42. JS2 reported that intersex children have been exposed to non-medically based surgery, which might cause in later serious mental or physical complications.
43. JS2 noted that considerable local variation was found in the level and quality of treatment and support for transgender people, especially gender variant children and transgender teenagers. The services should be equally efficient and of high quality throughout the country, but no state authority had taken adequate responsibility for ensuring this.
M. Migrants, refugees and asylum-seekers
65. JS2 stated that, while sexual orientation and gender identity were recognised as grounds for granting residence permits on the basis of subsidiary or humanitarian reasons, in some instances the authorities decided to forcibly return to countries where LGBTI people were discriminated and persecuted and where homosexuality was illegal.
III. References to SOGI during the Working Group review
A. Presentation by the State under review
16. The delegation reassured Finland’s commitment to full and effective implemention of the 1951 Geneva Convention related to the status of refugees and to respecting the principle of non-refoulement. When assessing the reasons for persecution, the Finnish Immigration Service took into account, inter alia, certain factors, such as sexual orientation. According to the recent decision of the Supreme Administrative Court, asylum cannot be denied even if the person could have avoided persecution in his home country by hiding his sexual orientation.
B. Interactive dialogue and responses by the State under review
47. With regard to combating bullying and discrimination in schools, the delegation said that Finland had launched an anti-bullying programme with the participation of over 90 per cent of schools. An evaluation of the programme indicated that it had significantly reduced bullying and victimization, including verbal, physical and cyber bullying, with 98 per cent of victims reporting that their situation had improved. Furthermore, a positive effect on academic achievement and motivation levels had been recorded. The programme had won the European Crime Prevention Award in 2009.
71. In respect to discrimination of LGBTI persons, the delegation acknowledged the existing challenges in protection of the rights of this group and that the protection of the rights of LGBTI persons were not visible enough in Finland. In addition to the ongoing reform of the legislation, the Ombudsman for Equality has increasingly been called upon to address the protection of the sexual and gender minorities. The delegation assured its commitment to work closely with the LGBTI community and NGOs to address the protection of this minority.
79. Guatemala welcomed Finland’s programme and policy aimed at the rights of women, children, ethnic and linguistic minorities, indigenous peoples, persons with disabilities, persons with HIV and sexual and gender minorities. Guatemala also congratulated Finland for the ratification of various international instruments and requested information about the steps taken to ratify the ILO Convention no. 169. It praised Finland’s efforts to protect the rights of migrants. Guatemala also requested further information on legislation and practices in the area of migration. Guatemala expressed concern over reported high level domestic violence and encouraged Finland to continue its efforts to protect women and children.
IV. Conclusions and/or recommendations
The recommendations formulated during the interactive dialogue and listed below have been examined by Finland and enjoy the support of Finland:
89.12. Reinforce its efforts, such as the drafted National Action Plan for Reducing Crime, to eliminate the phenomenon of bullying and violence at schools (Slovakia);
90.8. Increase its efforts in the field of discrimination on grounds of sexual orientation and gender identity, inter alia, by review of national legislation and administration with a view to eliminate discrimination against LGBTI people with regard to family and parental rights and the right to security and integrity of the person (Iceland).
A/HRC/21/8/Add.1, on recommendation 90.8 :
16. Non-discrimination legislation protects e.g. members of sexual and gender minorities against discrimination. This legislation is being developed to improve protection against discrimination on different grounds. The National Police College studies annually suspected hate crime directed against sexual and gender minorities and known to the police.
17. Under the Government’s new gender equality programme 2012–2015, the Act on Equality between Women and Men is being supplemented with provisions promoting equality and protecting members of gender minorities against discrimination. In developing equality policies, the position of gender minorities is taken into account. A working group will be appointed to examine the need to amend the Act on Legal Recognition of the Gender of Transsexuals. The possible need to amend family legislation will be discussed.
90. The following recommendations were not accepted:
90.25. That development aid must not be tied to conditionalities that do not take into account the traditional values of recipient countries (Namibia).
A/HRC/21/8/Add.1, on recommendation 90.25 :
41. Development policy is a central part of Finland’s foreign and security policy, which aims at strengthening international stability, security, peace, justice and sustainable development, and promoting the rule of law, democracy and respect for human rights. The Finnish approach to development issues is based on human rights in line with the idea of the Universal Declaration of Human Rights that all human beings are born free and equal in dignity and rights. This value-based development policy promotes the universality of human rights, everyone’s right to make their choices in life independently, non- discrimination and equality. Finland emphasises the rights of women, children, ethnic, linguistic and religious minorities and indigenous peoples, persons with disabilities, persons with HIV/AIDS, and sexual and gender minorities.
V. Adoption of the Report
The draft report of the Working Group was adopted at the 21st session of the Human Rights Council in September 2012, on Wednesday 19th September.
Presentation by the delegation of Finland
As the UPR recommendations illustrate, racist, discriminatory and xenophobic attitudes continue to be part of everyday life in Finland. Violence against women remains one of the most fundamental obstacles to the full realisation of women’s rights. The rights of persons belonging to minorities, LGBTI people, asylum seekers, refugees and migrants as well as of persons deprived of their liberty are not always fully realised. Part of the population is in danger of being marginalised. There are just a few of the challenges to be mentioned.
Statements by States and other stakeholders
ILGA-Europe and Seta Ry
We commend Finland for accepting the recommendation to increase its efforts in combating discrimination on grounds of sexual orientation and gender identity. We are looking forward to an effective and comprehensive implementation of the commitment.
Whilst we welcome this progress, significant challenges still remain. Transgender and intersex persons face serious discrimination. Gender nonconforming children face transphobic bullying in schools. Discrimination in the employment market is common, and many transgender persons remain unemployed. Intersex children sometimes suffer mental and physical complications due to surgical operations that lack medical grounds.
The government states that a working group will be appointed to examine the need to amend the Act on Legal Recognition of the Gender of Transsexuals. We urge the government to proceed with this commitment very soon. Persons applying for gender marker change currently face degrading conditions such as the infertility requirement. This shows the legislators’ lack of understanding of the everyday lives of transgender persons, many of whom already have children and families.
The government states that a possible need to amend family legislation will be discussed. Currently there are several legislative procedures where the equal treatment of families of lesbians, gay men, and bisexual, transgender and intersex persons should be taken into account. Children should not be treated unequally depending on their parents’ gender or sexuality.
The recently adopted National Action Plan for Human Rights has very few references to LGBTI people. The government must show concrete commitment to creating policies to improve the human rights of LGBTI people. While many authorities are already addressing these issues of equality there is a need for a more coherent and coordinated policy. We suggest drafting a comprehensive LGBTI policy action plan and defining responsibilities for implementation and monitoring the plan.
Finally, we thank Finland for a constructive dialogue during the UPR process and stand ready for further interaction to ensure that all LGBTI people can enjoy their citizenship in full equality.
VI. Further information
UPR Documentation
For first cycle reports of Finland, please see here
National report 1 : A | C | E | F | R | S
Compilation of UN information 2 : A | C | E | F | R | S
Corrigendum 1 : A | C | E | F | R | S
Corrigendum 2 : A | C | E | F | R | S
Summary of stakeholders’ information 3 : A | C | E | F | R | S
Corrigendum : E only
Questions submitted in advance : E
Addendum 1 : E
Outcome of the review: