| Click here for a summary of Germany’s review at the second cycle and/or the third cycle. |
4th UPR session
Date of review: 2 February 2009
Date of report adoption: 4 March 2009
Document number: A/HRC/11/15
|
SUMMARY SOGIESC issues during Germany’s 1st UPR review |
I. SOGIESC issues/recommendations identified by NGOs
Equality and non-discrimination
15. JS2 [Forum Menschenrechte joint submission] and GIHR [German Institute for Human Rights] reported that the Government has introduced a General Equal Treatment (GET) Act in 2006 which prohibits discrimination on the grounds of “race” and ethnic origin, gender, religion and belief, disability, age and sexual orientation. However, GIHR expressed concern about the possible negative impact of an exception clause concerning the access to rental housing, with the possibility that the unclear wording become a pretext for racist discrimination. Moreover, GIHR considered that limiting legal claims against incidents of discrimination to a period of two months will likely have negative consequences for the effectiveness of legal remedies. COE [Council of Europe] recommended that Germany remove or clarify the exceptions to the principle of equal treatment regarding access to rental housing from the GET Act and consider extending the time limit for claims based on the Act.
16. JS2 considered that the ADS [Federal Anti-Discrimination Office] should work comprehensively on both federal and State levels, and that gender-differentiated research and gender-sensitive evaluation of studies be encouraged and access to better data facilitated, on matters such as gender equality, levels of full and part time employment, income levels by sector and gender, racist discrimination, ethnic origin, age, religion and beliefs, disabilities, and sexual orientation. COE recommended that Germany screen relevant legal and administrative provisions at federal and Länder levels to establish whether they comply with the GET Act.
20. JS2 stated that despite the introduction of the Act to Revise the Registered Partnership Act (Gesetz zur Überarbeitung des Lebenspartnerschaftsrechts) in 2004, same-sex partnerships still face discrimination in many essential respects compared to heterosexual partnerships. GIHR and Campaign Transexuality and Human Rights (JS3) expressed concern about still widespread stereotypes and discriminatory attitudes towards lesbian, gay, bisexual and transgender (LGBT) people in all parts of the German society. JS2 reported violent attacks and desecration or damage of memorials as the memorial for lesbian and gay victims of the Nazi regime in Berlin’s district Tiergarten in August 2008.
Migrants, refugees and asylum-seekers
39. […] COE recommended that Germany apply the grounds for providing protection to refugees to cover persecution on the account of outward manifestations of religion as well as sexual orientation; and review practice of revoking refugee status to ensure that revocations only take place when the circumstances related to the original decision to grant refugee status have undergone such a fundamental change as to clearly remove the basis for the fear of persecution in a sustainable manner.
II. Excerpts on SOGIESC issues from the national report
Xenophobia, racism
34. In 2001 a new system for the differentiated recording of “Politically motivated crimes” (PMK) was introduced in Germany. Under this system crimes linked to the nationality, ethnic origin, race, skin colour, religion, origin, external appearance, disability, sexual orientation, or social status of the victim will also be recorded separately under the term “hate crimes”. […]
V. NATIONAL PRIORITIES
Anti-discrimination policy
78. The Federal Government will also continue to press for the combating of racism, xenophobia and Anti-Semitism, as well as of any discrimination based on ethnic origin, gender, religion or ideology, disability, age or sexual identity. The adoption in 2006 of the Anti-Discrimination Act (AGG) aiming to prevent or eliminate discrimination was an important element of this campaign. Inter alia, the AGG contains as an important legal instrument the “relaxation of the burden of proof”. This means that in future presumed victims of unequal treatment will no longer have to provide absolute proof. More importantly, the other side will in future have to provide evidence that they are not guilty of unjustified discrimination. This legal instrument is intended to provide those affected with greater encouragement to assert their rights.
79. Another result of the AGG was the establishment in 2006 of the Federal Anti-Discrimination Office. The Federal Anti-Discrimination Office sets out to more effectively emphasize the right to non-discrimination as a universal human right and to place the concept of equal treatment firmly at the centre of society. It fulfils its function of raising awareness not only through its advisory service for those affected, but also through its research and public work. Every four years commencing in 2009 the Federal Anti-Discrimination Office, together with the Federal Government Commissioners and the Parliamentary Commissioners of the Bundestag, is to submit a report to the Bundestag on cases of discrimination and make recommendations for its elimination and avoidance.
80. The Civil Partnerships Act which has been in force since 2001 also enables homosexual couples to establish a civil partnership. This will also be recognized as a civil status as from 2009.
III. Excerpts on SOGIESC issues by UN agencies
Equality and non-discrimination
8. In 2008, CERD welcomed the adoption of the General Equal Treatment (GET) Act which prohibits discrimination on the grounds of race and ethnic origin, gender, religion and belief, disability, age and sexual orientation. […]
IV. References to SOGIESC issues during the Working Group review
18. As regards racially motivated crimes, the Government informed that such criminal acts have been listed in a separate statistic since 2001 and that a range of different activities aimed at combating such crimes, as well as violence against homosexuals, are implemented.
32. France welcomed, inter alia, the establishment of the Federal Anti-Discrimination Office to combat discrimination although some areas are not covered. It asked about, inter alia, the measures that will be taken to reduce inequality of treatment between married couples and persons who are in a registered homosexual partnership to ensure full access to health insurance and allowances in the event of widowhood.
46. On the question of the equal treatment of persons living in same-sex relationships, or “registered partnerships” and why they do not enjoy the full rights and privileges that married couples have, the delegation stated that these matters have been discussed in the Constitutional Court and in the European Court of Justice (ECJ). The latter has accepted the legal situation prevalent in Germany because registered partnerships and marriage proper are not entirely compatible in every respect. Despite these rulings there is a debate whether the rights of people living in a registered partnership may not be extended.
55. Regarding the widespread stereotypes and discriminatory attitude towards lesbian, gay, bisexual and transgender including violent attacks and damage to the memorial for lesbian and gay victims of the Holocaust, the Netherlands welcomed Germany’s positive steps to protect them from hate crimes and recommended that Germany continue its efforts and take further initiatives to combat hate crimes based on sexual orientation.
71. New Zealand recommended that Germany strengthen measures to counter discriminatory attitudes, for example by including sexual orientation and gender identity in public education and equality programmes and initiatives. It further recommended that German law on transsexuality be modified promptly to facilitate registration of a change of gender on official documents, without requiring transsexuals to divorce, in line with the decision of the Constitutional Court.
V. Conclusions and/or recommendations
Germany accepted the following recommendations:
81.22a Continue its efforts and take further initiatives to combat hate crimes based on sexual orientation (Netherlands);
81.22b Strengthen measures to counter discriminatory attitudes, for example by including sexual orientation and gender identity in public education and equality programmes and initiatives (New Zealand);
81.22c Modify promptly the law on transexuality to facilitate registration of a change of gender on official documents, without requiring transsexuals to divorce, in line with the decision of the Constitutional Court (New Zealand).
VI. Further information
You will find all documents relating to Germany’s first review at UPR-Info and OHCHR’s websites.