| Click here for a summary of Germany’s review at the first cycle and/or the second cycle. |
30th UPR session
Date of review: 8 May 2018
Date of report adoption: 20 September 2018
Document number: A/HRC/39/9
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SUMMARY SOGIESC issues during Germany’s 3rd UPR review |
I. SOGIESC issues/recommendations identified by NGOs and other stakeholders
Information provided by the national human rights institution accredited in full compliance with the Paris Principles
4. Referring to a relevant supported recommendation from the Universal Periodic Review of Germany (2013 review), DIMR stated that the Federal Government adopted a national action plan to combat racism, which included homophobia and transphobia.
National human rights framework
24. JS1 called for the inclusion of sexual orientation and gender identify as grounds for discrimination in the Grundgesetz für die Bundesrepublik Deutschland (Basic Law).
26. BVT called for a revision of the transsexual legislation in order to make provision for a quick, transparent and accessible process of gender recognition based on self determination.
Equality and non-discrimination
33. Recalling its recommendation from 2013, CoE-ECRI stated that it was regrettable that significant shortcomings remained in the recording and following up to racist, xenophobic, homophobic and transphobic incidents. The police continued to use incorrect terminology and an excessively restrictive definition of hate crime for their statistics. AI also noted inadequacies in the recording of data on hate crime.
34. Referring to a relevant supported recommendation, JS4 stated that crime motivated by the sexual orientation of the victims were either not reported or if reported, were incorrectly classified under “other hate-motivated grounds” by the police. LSVD stated that the different backgrounds and manifestations of hate crime based on sexual orientation, gender identity and expression and sex characteristics, directed against LGBTIQ* persons were ignored.
35. LSVD stated that Section 46 (2) Sentence 2 of the Criminal Code was amended to ensure that hate motivation would play a greater role in determining penalties and to better inform investigations. While an express reference is made to racist motivation, other forms of hate crime are investigated on the basis of “other hate-motivated grounds”. The omission of homophobic- and transphobic-motivated crime from the amended Section 46 (2) Sentence 2 of the Criminal Code was a deliberate, structural exclusion. LSVD stated that a similar problem existed with Section 130 of the Criminal Code, which identifies national, racial or religious groups or groups defined by ethnic origin as potential targets and makes no mention of LGBTIQ* persons and persons with disabilities.
37. LSVD stated that the national action plan against racism was not forwarding looking and sustainable. It marginalized LGBTIQ* persons, failed to offer any specific measures and remained non-committal.
Fundamental freedoms and the right to participate in public and political life
54. While noting that a new law providing for the marriage of same-sex couples came into effect, ADF called for legislative protections for the freedom of conscience in instances where same-sex marriage went against individual religious or moral beliefs.
Right to health
76. BVT stated that Germany should introduce regulation to address the healthcare needs of people with gender-nonconforming identities.
77. OII Germany stated that a lack of knowledge and prejudices of healthcare professionals and the policies of health insurance companies impaired access to general health care for intersex people.
78. OII Germany stated that there was a lack of counselling services available to parents and families of intersex infants, children and adults.
Right to education
80. OII Germany stated that intersex people were not included in any education curriculum. In addition, sex education did not include their existence or their bodily experience and instead, perpetuated the notion that only two sexes existed.
II. Excerpts on SOGIESC issues from the national report
Women
48. Furthermore, in recent years Germany has increased its engagement in protecting women against violence. To this end the obligations from the Istanbul Convention have been fully incorporated into German law. The most recent milestone was the introduction of the principle “No means no!” in connection with sexual offences. The 50th Criminal Law Amendment of 4 November 2016 to improve the protection of sexual self-determination entered into force on 10 November 2016. Normative protection is thus fully guaranteed. The Istanbul Convention will enter into force for Germany on 1 February 2018.
LGBTI
54. Various measures have been implemented to eliminate discrimination against lesbian, gay, bisexual, transsexual and intersexual people:
• On 1 October 2017 the Act introducing the right of persons of the same sex to marry entered into force. Under this, a marriage may take place between two persons of the same sex.
• On 22 July 2017, the Act to criminally rehabilitate persons convicted of performing consensual homosexual acts after May 8, 1945 entered into force. The Act serves to rehabilitate and compensate those affected by Section 175 of the German Criminal Code (Section 151 of the Criminal Code of the GDR).
• The National Action Plan against Racism (see 2.3.2.9) was extended to encompass the subjects of homophobia and transphobia.
• From the start of 2015 to the end of 2019, within the framework of the federal “Live Democracy!” programme, measures are being promoted that are designed to increase acceptance of same-sex, transsexual and intersexual lifestyles, eliminate prejudice towards these groups and take a stand against discrimination and violence based on gender, sexual identity and sexual orientation. Currently, nine pilot projects and two nation-wide NGOs are receiving funding for structural development in the field of homophobia and transphobia.
• Furthermore, the Federal Government supports numerous other projects to reduce discrimination of lesbian, gay, bisexual, transsexual and intersexual people and works for the protection and recognition of sexual diversity.
• In September 2014, an interministerial working group on intersexuality and transsexuality was set up. It focused on national and international research, political decisions, societal debate and findings from hearings with experts and organised participative specialist exchanges.69 The work of the interministerial working group concluded at the end of the 18th legislative term.
Racism
59. Germany sees the fight against racism as an ongoing task for society as a whole. The action areas involved are thus wide-ranging and extensive:
• Since 2015, the Federal Government has been promoting civic engagement and democratic conduct at municipal, Land and federal level through the federal programme “Live Democracy! Active against Right-wing Extremism, Violence and Hate”. This programme provides support to clubs, organisations, projects and initiatives focused on promoting democracy and diversity and combating right-wing extremism, racism, anti-Semitism, Islamist extremism, other forms of anti-democracy and hate (e.g. homophobia and transphobia), violence, hate and radicalisation. In addition, it supports municipalities all over Germany as local “partnerships for democracy”, democracy centres in the Länder, the structural development of nation-wide NGOs and pilot projects on selected phenomena involving hatred against particular groups in rural areas and on preventing radicalisation in the fields of right-wing extremism, Islamist extremism and leftwing militancy. Since 2017, support has also been provided to organisations active in the programme areas of engagement and diversity in working life and corporate culture, fostering democracy in the education sector, living together in a society of immigration, strengthening endeavours to combat online hate, and prevention and de-radicalisation among prisoners and people on probation.
62. In addition, the following measures to eliminate racism have been carried out in the police and judiciary:
• In order to do more to prevent racist activities and to be able to combat them decisively, hate crimes are defined under eleven specific categories in police statistics on politically motivated crimes, namely as anti-Semitic, anti-Gypsy, xenophobic, anti-disability, anti-Christian, discrimination on the grounds of social status, anti-Islam, racially motivated, or motivated on the grounds of other ethnicity, other religions or sexual orientation. Since 1 January 2014, there has been a separate section for statistics on crimes against shelters for asylum seekers, under the main heading of foreigners/asylum issues.
III. Excerpts on SOGIESC issues by UN agencies
Equality and non-discrimination
9. While noting the justified concerns of Germany and the action it had taken to combat anti-Semitism, the Committee on the Elimination of Racial Discrimination was concerned that Germany was not adequately addressing other forms of racial discrimination, including institutional racism against Muslims. It was also concerned at the discrimination experienced by women from minority groups and the intersection between discrimination against lesbian, gay, bisexual, transgender and intersex persons and racial discrimination. The Working Group of Experts on People of African Descent was concerned about the human rights situation of people of African descent, whose lives were marked by racism but who were not officially recognized as a group particularly exposed to racism.
Right to life, liberty and security of person
26. [The Committee on the Rights of Persons with Disabilities] was concerned about the use of compulsory and involuntary treatment, particularly for persons with psychosocial disabilities in institutions and older persons in residential care, and the lack of data on involuntary placement and treatment. It was also concerned by the practice of forced sterilization and coercive abortions for adults with disabilities on the basis of substituted consent. It was further concerned by the fact that the bodily integrity of intersex children was not upheld. It recommended that Germany repeal section 1905 of the Civil Code, explicitly prohibit in law sterilization without the full and informed consent of the individual concerned and eliminate all exceptions, including those based upon substituted consent or court approval. The Committee also recommended that Germany ensure all psychiatric treatments and services were always delivered with the free and informed consent of the individual concerned and that it conduct an investigation into human rights violations in psychiatric and older persons’ care settings in all Länder.
IV. References to SOGIESC issues during the Working Group review
9. The National Action Plan against Racism, adopted by the Cabinet in 2017, had been expanded to include homophobia and transphobia. The Plan was connected to the Federal Government Strategy to Prevent Extremism and Promote Democracy.
22. Germany was keen to create a society that welcomed, respected and accepted sexual and gender diversity. In June 2017, marriage was made possible for same-sex partners.
87. It was important for Germany to work towards a society that accepted, supported and promoted sexual and gender diversity. Following rulings from the Federal Constitutional Court and the Supreme Court of Germany, the Government had intended to introduce into law the option of a third gender. Intersex children were better protected against irreversible and unnecessary medical interventions.
100. Luxembourg commended Germany for its efforts to combat extremism through preventive initiatives and for introducing same-sex marriages.
113. The Netherlands welcomed the importance given by Germany to anti-discrimination based on sexual orientation and noted the adoption of legislation allowing for same-sex marriages.
V. Conclusions and/or recommendations
Germany accepted the following recommendations:
155.48 Develop a comprehensive national action plan to promote gender equality, including to address intersecting forms of discrimination, ensuring its effective monitoring through concrete targets and indicators and the identification of pertinent accountability mechanisms where remaining gaps for equality prevail (Finland);
155.56 Increase effort to eradicate incitement to hatred, racism, xenophobia, homophobia and transphobia, condemning discourses that motivate intolerance and crimes based on prejudice (Uruguay);
155.109 Continue supporting projects to reduce discrimination of lesbian, gay, bisexual, transgender and intersex persons and working for the protection and recognition of sexual diversity (Greece);
155.110 Continue efforts aimed at combating discrimination based on sexual orientation or gender identity, including by ensuring resources for the autonomy of the Federal Anti-Discrimination Agency and by strengthening anti-discrimination laws (Netherlands);
155.111 Further enhance the protection of lesbian, gay, bisexual, transgender and intersex persons from discrimination and violence domestically by introducing a third gender category for people who do not identify as either male or female or who are born with an ambiguous sexual anatomy (Australia);
155.254 Adopt legislative and administrative measures to avoid the detention of migrants and allow the early identification of migrants in situations of vulnerability, including transsexual persons and victims of torture, with a view to their being considered in the asylum application processes, as well as in the terms of appeal before the expulsion (Mexico);
Germany noted the following recommendations:
155.112 Adopt measures for the protection of the fundamental rights of lesbian, gay, bisexual, transgender and intersex persons, and update the care guide in the health sector, ensuring the inclusion of the rights of trans people (Uruguay);
155.113 Consider introducing in legislation a third gender option for intersex and non-binary trans people based on self-determination (Israel);
155.114 Set up a national compensation fund for transsexual persons who were coerced into sterilization or unwanted gender reassignment treatment in the years 1981–2011 (Sweden);
155.167 Recognize under family law unmarried couples in established relationships, both opposite-sex and same-sex (Canada);
VI. Further information
You will find all documents relating to Germany’s third review at UPR-Info and OHCHR’s websites.