Switzerland (2nd cycle)
|For a summary of Switzerland’s review at the first cycle please click here.
14th UPR session
Date of review: 29 October 2012
Date of report adoption: 14 March 2013
Working Group report: A/HRC/22/11
Recommendations: Take necessary measures to expand the provisions of the Criminal Code on hate speech in order to include grounds which go beyond hatred based on race, religion or origin of the individual, integrating such factors as language, colour, sex, mental or physical deficiency, sexual orientation or other similar grounds; Introduce legislation, uniformly across the Confederation, that explicitly protects LGBT persons from discrimination, and take into account the issues faced by LGBT persons when creating a general act on equal treatment.
I. Key issues/recommendations identified by NGOs
- include sexual orientation, gender identity and gender expression in non-discrimination legislation;
- introduce comprehensive sexuality education; remove the sterilisation requirement for change of gender in official documents;
- remove restrictions on same-sex adoption;
- apply the Yogyakarta Principles.
II. Excerpts from input reports
III. Promotion and protection of human rights
A. Equality, non-discrimination (Universal Declaration of Human Rights, arts. 1, 2 and 7) and subjects of specific rights
11. Dignity and equality are the first two rights listed in the series of enforceable rights set forth in the Federal Constitution (arts. 7–34). The constitutional principles of equality before the law and the prohibition of discrimination (article 8 of the Constitution) are reflected in several federal laws such as the Gender Equality Act, the Disabled Persons Equality Act, and the Act on Registered Partnerships between Persons of the Same Sex.
7. Sexual orientation and gender identity
50. On 22 February 2012, the Federal Council endorsed an amendment to the Act on Registered Partnerships between Persons of the Same Sex allowing the adoption by one partner of the natural or adopted children of the other when such children are the issue of, or were adopted during, a prior relationship. The proposed revision of the Nationality Act, however, does not provide for same-sex partners in a registered partnership to benefit from an expedited naturalization procedure.
51. On 1 February 2011, the Zurich Supreme Cantonal Court ruled that an application for a change of sex that had been filed by a person who had undergone long-term hormone treatment but not gender reassignment was admissible. In February 2012, the Federal Government supported this ruling in a similar case. In accordance with the relevant recommendations of the Council of Europe, the Federal Government also ordered registry offices to register legal decisions attesting the sex change of married persons or persons in a registered partnership, if those persons so wished, without requiring them to dissolve the marriage or partnership first.
Compilation of UN information
No references to sexual orientation or gender identity.
Summary of stakeholder submissions
III. Implementation of international human rights obligations
A. Equality and non-discrimination
19. JS1 similarly observed that legal protection against discrimination was still fragmentary. Some individuals and specific groups were exposed to discrimination because they were not specifically protected and did not have the specific legal instruments to claim their rights. In the context of employment, cases of discrimination due to HIV/AIDS were on the rise and LGBTI persons were also still subject to discrimination. JS1 recommended that Switzerland introduce a new federal law that explicitly prevents and combats discrimination and that protects different groups, including explicitly people living with chronic diseases and LGBTI persons. JS3 similarly recommended that Switzerland explicitly consider the issues and violations faced by LGBTI persons when creating a general act on equal treatment.
I. Right to education
46. JS4 recommended the introduction of education on sexuality in all curricula. JS1 called on the Government to guarantee equal access to comprehensive sexuality education for all children and adolescents. A strategy to implement efficiently existing models and standards should be developed together with professional associations and educational institutions. JS3 recommended that Switzerland systematically include education on sexuality and sexual health in the curricula and implement such education in a comprehensive manner.
III. References to SOGI during the Working Group review
Presentation by the State under review
The delegation noted that measures would also be taken in the coming years to improve the legal framework for same sex couples. Starting 2013, registered partnerships will have the same rights as married couples with respect to name. In addition, conditions for the changing of name, sex or civil status will be relaxed.
IV. Conclusions and/or recommendations
The following recommendations were rejected by Switzerland:
123.49. Take necessary measures to expand the provisions of the Criminal Code on hate speech in order to include grounds which go beyond hatred based on race, religion or origin of the individual, integrating such factors as language, colour, sex, mental or physical deficiency, sexual orientation or other similar grounds (Canada);
Explanation: Switzerland complies with its international obligations, as well as the guarantee of freedom of expression and the ban on racial, ethnic and religious discrimination.
123.76. Adopt federal legislation in order to provide protection against all forms of discrimination, including on grounds of sexual orientation and gender identity (Norway);
123.77. Introduce legislation, uniformly across the Confederation, that explicitly protects LGBT persons from discrimination, and take into account the issues faced by LGBT persons when creating a general act on equal treatment (Ireland).
Explanation: Switzerland sees no need to adopt an additional anti-discrimination law (see also 123.27.). Concerning the discrimination on the ground of sexual orientation, the Federal Act on Gender Equality prohibits discrimination in the professional sphere on the basis of sexual identity. The same law prohibits sexual harassment between persons of the same sex at the place of work.
Furthermore, the provisions of Swiss labour laws with regard to the protection of the personality and unfair dismissal apply equally in cases of discrimination based on sexual orientation. Protection also exists in the case of a rental contract. A contract cannot be lawfully rescinded on the basis of the sexual orientation or gender identity of one of the parties. Moreover the family domicile is protected both for married couples and for registered partners.
V. Adoption of the Report
The report of the working group was adopted at the 22nd regular session of the Human Rights Council in March 2013.
Presentation by the State under review
[...] Un autre exemple est celui des nombreuses recommandations qui demandent à la Suisse d’adopter une loi générale contre les discriminations. La Suisse est consciente de l’importance de la lutte contre les discriminations et a adopté de nombreuses mesures en ce sens. L’interdiction de la discrimination est inscrite dans la Constitution. Notre analyse a toutefois montré que chaque motif de discrimination présente des caractéristiques propres et demande des réponses spécifiques. La Suisse a ainsi privilégié une approche sectorielle, en adoptant des mesures ciblées afin de réagir de manière appropriée aux différents problèmes qui se posent. Permettez-moi d’illustrer ceci en me référant à trois lois contre la discrimination différentes :
[…] Dans un tout autre domaine, la loi sur le partenariat enregistré offre dans une large mesure aux couples homosexuels les droits dont bénéficient les couples mariés. Le Parlement débat actuellement d’une modification de cette loi, qui permettrait à une personne en partenariat enregistré d’adopter l’enfant de son partenaire. Ici aussi, il s’agit d’un instrument spécifique, destiné à répondre à une situation particulière.
Même sans loi générale contre les discriminations, il existe ainsi en Suisse une protection étendue contre les discriminations. L’opinion prédominante dans notre pays est que ce procédé sectoriel offre une protection plus efficace qu’une loi générale contre les discriminations. Toutefois, les autorités sont ouvertes à une réflexion à ce sujet. Pour cela, le Gouvernement suisse a mandaté le Centre de compétence suisse pour les droits humains de préparer une étude sur les moyens existants pour réagir en cas de discriminations. Le Parlement a également demandé au Gouvernement de présenter un rapport sur l’efficacité de la protection contre les discriminations en Suisse. [...]
Comments by States and other stakeholders
ILGA-Europe, Pink Cross, LOS, Rainbow Families, Transgender Network Switzerland and LGBT Youth Switzerland – delivered by Sandrine Cina
This declaration is made on behalf of the five Switzerland-wide LGBT organisations Pink Cross, LOS, Rainbow Families, Transgender Network Switzerland and LGBT Youth Switzerland.
We regret Switzerland’s wholesale rejection of all recommendations regarding sexual orientation and gender identity. With its sectoral approach, Switzerland does not provide comprehensive protection for its LGBT citizens.
LGBT persons in Switzerland are exposed to multiple forms of discrimination. They are targeted for physical and verbal violence three times as often as heterosexual persons. Hate speech against the LGBT community in the public sphere is not indictable. This climate of violence creates significant stress, which can lead to depression or suicide; as a matter of fact, LGBT persons are five times as likely to attempt suicide as the rest of the population.
The Registered Partnership Law discriminates against same-sex couples in the areas of facilitated naturalisation, adoption and access to medically assisted reproduction. Additionally, the children of registered partners are disadvantaged in matters of custody and visitation rights, alimony, inheritance rights and orphan benefits.
Employment law, on the other hand, doesn’t mention discrimination based on sexual orientation or gender identity at all, even though those situations are common. Transgender individuals in particular have to contend with rejection and dismissal for reasons directly linked to their identity.
This lack of legal protection is directly linked with how young LGBT persons view their future.
The Swiss LGBT organisations call on the Confederation to provide comprehensive protection for its LGBT citizens and to adopt a general law against discrimination that explicitly includes sexual orientation and gender identity. The Swiss authorities need to demonstrate their willingness to combat any and all forms of discrimination – this is an indispensable condition for societal cohesion in Switzerland and the well-being of every citizen.
Action Canada for Population and Development, Sexual Rights Initiative and Sexual Health Switzerland
We congratulate Switzerland for accepting a number of important recommendations. However, we are concerned that it has chosen to reject recommendation 123.76 which would have obligated the State to adopt explicit federal legislation to provide protection against all forms of discrimination, including on grounds of sexual orientation and gender identity. [...]
VI. Further information
For first cycle reports of Switzerland, please see here
National report 1 : A | C | E | F | R | S
Compilation of UN information 2: A | C | E | F | R | S
Summary of stakeholders’ information 3: A | C | E | F | R | S
Questions submitted in advance : E
Addendum 1 : E
Addendum 2 : E
Addendum 3 : E
Outcome of the review
Report of the Working Group: A | C | E | F | R | S
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