Enjoyment of human rights by LGBT persons

Discrimination on the grounds of sexual orientation, gender identity or gender expression is in violation of the basic principle of equal value and equal rights for all people. Such discrimination is prohibited, explicitly or implicitly, under Swedish and international law.

The international regulatory system
UN human rights conventions are the basis for national and international protection of lesbian, gay, bisexual and transgender (LGBT) people’s enjoyment of their human rights.

Sexual orientation is not stated explicitly as a ground of discrimination in Article 26 of the International Covenant on Civil and Political Rights. The United Nations Human Rights Committee, however, has established that Article 26 also includes lesbian, gay and bisexual people. The UN Committee on Economic, Social and Cultural Rights emphasised in 2009 that both sexual orientation and gender identity were covered by the protection from discrimination in Article 2 (2) of the International Covenant on Economic, Social and Cultural Rights.

The UN Committee on the Rights of the Child has also emphasised that the prohibition of discrimination includes sexual orientation. This interpretation is not generally accepted by all UN Member States, however. Sweden and other EU Member States, nevertheless, strive to ensure that these interpretations become successively more generally accepted by all the nations of the world and that the issue of sexual orientation and gender identity is discussed in various international contexts.

Historic successes
It was therefore an historic success when the UN Human Rights Council adopted a resolution on 17 June 2011 which emphasised the equal value and rights of all people regardless of sexual orientation or gender identity. The resolution also expressed grave concern over the violence and discrimination affecting people as a result of their sexual orientation or gender identity, and at the same time requested a study by the UN High Commissioner for Human Rights. The subsequent report was published on 15 December 2011, revealing that LGBT people the world over are subject to serious hate crimes, such as fatal assault and torture.

In many countries homosexuality is criminalised and people are imprisoned and discriminated against in the workplace and within the education system. The UN High Commissioner for Human Rights stated in the report that “[v]iolence against LGBT persons tends to be especially vicious compared to other bias-motivated crimes” and that “a pattern of human rights violations emerges that demands a response”. In accordance with the resolution, the report is to form the basis of continued dialogue in the UN Human Rights Council.
Read more about the report (PDF, external website)

Sweden has a proactive role
Sweden plays an active role to ensure that all countries decriminalise sexual contacts between consenting adults of the same sex and to ensure that protection against discrimination on grounds of sexual orientation and gender identity is introduced. Sweden highlights the situation for LGBT people in its dialogues with other countries and within the framework of the UN Human Rights Council’s universal periodic review mechanism. Sweden and the European Union also act through representations and public statements against legislative proposals that entail discrimination against LGBT people or persecution of those who defend human rights in connection with these issues.

The European Convention on Human Rights
Sexual orientation is also not explicitly stated as grounds of discrimination in Article 14 of the European Convention on Human Rights and Fundamental Freedoms, which prescribes a prohibition against discrimination that is limited to the guaranteed freedoms and rights stipulated in the Convention and its protocols. From applicable case-law established by the European Court of Human Rights, it is evident, however, that the Article – in combination with other Articles in the Convention – has been considered applicable when a person has been discriminated against on grounds of sexual orientation, as the grounds of discrimination are not exhaustive. The European Convention on Human Rights is legally binding in Sweden.

LGBT issues in the EU
Under Article 13 of the EC Treaty, the Council of the European Union has the option to take measures to combat discrimination on various grounds, including sexual orientation. On 27 November 2000 the Council Directive 2000/78/EC was adopted, establishing a general framework for equal treatment in employment and occupation, which includes a prohibition of discrimination on grounds of sexual orientation. The Community law protection against discrimination on grounds of sex, race or ethnic origin, however, is as yet more far-reaching than the corresponding protection for sexual orientation, for example.

A new directive is being prepared which includes prohibiting discrimination on grounds of religion or belief, disability, age or sexual orientation. The prohibition will apply in several sectors of society, including social security, health and medical care, and education. Sweden is working actively to ensure the anti-discrimination directive is as broad in scope as possible and that it secures the same level of protection against discrimination regardless of the grounds of discrimination.

LGBT issues in the European Parliament
The European Parliament has also become involved in LGBT issues. In a resolution adopted on 18 January 2006, the European Parliament sharply condemned homophobia and all discrimination in Europe on grounds of sexual orientation. The Parliament urged both the Commission and the governments of the Member States to take measures to protect lesbians, gays and bisexuals from discrimination, hatred and violence.

Article 21 in the Charter of Fundamental Rights of the European Union states that discrimination on grounds of sexual orientation is prohibited. The Charter is so far only a political declaration of intent, but if the Treaty of Lisbon enters into force the Charter will become binding.

LGBT issues and the Council of Europe
Sweden is working actively within the Council of Europe for LGBT rights. In 2009, the Council of Europe’s Committee of Ministers appointed an expert committee on discrimination on grounds of sexual orientation or gender identity, chaired by Sweden’s expert, Director-General Hans Ytterberg. The expert committee drew up a proposed recommendation to all 47 Member States of the Council of Europe on measures to combat discrimination related to sexual orientation or gender identity to ensure respect for the human rights of lesbian, gay, bisexual and transgender people and to promote tolerance. The Committee of Ministers of the Council of Europe adopted the recommendation on 31 March 2010. It was the first time ever that an international document explicitly established the rights of LGBT people. Member States are to report on their compliance with the recommendation no later than 2013. 

Council of Europe Commissioner for Human Rights
The Commissioner’s mandate includes identifying any shortcomings in legislation, regulations and practice, with the overall objective of promoting respect for human rights in all 47 member countries of the Council of Europe.
On 23 June 2011 the Council of Europe Commissioner for Human Rights Thomas Hammarberg launched a report on the situation in Europe for LGBT people entitled “Discrimination on grounds of sexual orientation and gender identity in Europe”. In addition to a status report, it also contains recommendations to states regarding measures to improve the situation for LGBT people.
Read the report (external website)

LGBT issues in Sweden
Efforts to secure the rights of LGBT people in Sweden have been and are being carried out through a number of different initiatives in various sectors of society. Despite this, LGBT people are still subject to discrimination and other degrading treatment in Swedish society. This is unacceptable and the Government has therefore intensified and strengthened its efforts to promote equal rights and opportunities regardless of sexual orientation, gender identity and gender expression.

The Discrimination Act
A new Discrimination Act entered into force in Sweden on 1 January 2009, replacing and merging seven pieces of discrimination legislation into one act. To the already existing grounds of discrimination, of which sexual orientation was one, two new grounds were added: age and transgender identity or expression.

At the same time, four previous public authorities, including the Office of the Ombudsman against Discrimination because of Sexual Orientation, were merged into one agency, the Office of the Equality Ombudsman. This agency is responsible for compliance with the new Act.

Through the new Act, protection against discrimination was incorporated into sectors of society where prohibition of discrimination had not previously been legally regulated, such as public employment, national military service and civilian service, all parts of the education system, public meetings and public events.
Read the Discrimination Act

Family law issues
Since 2003, registered partners and same-sex married couples are eligible to be considered as adoptive parents in the same way as married couples of the opposite sex.

Since 2005, women in same-sex relationships also have access to assisted reproductive treatment within the Swedish medical care system. Assisted reproductive treatment using donated sperm may be carried out when a woman is married, a registered partner or cohabiting with another woman. The wife, partner or cohabitee, along with the impregnated woman, is considered a parent to the child that is born, provided she has consented to the treatment and it is probable that the child was conceived by it.

Since 2009, same-sex couples can enter into marriage on the same terms as couples of the opposite sex. The provisions of the Marriage Code are applied in the same manner, regardless of whether the spouses are of the opposite or the same sex.

Current legislative work in Sweden
In its report from January 2007 (SOU 2007:3), the Government Inquiry on parenthood in connection with assisted reproduction proposed that the rules introduced in 2005 on parenthood for women in lesbian relationships be expanded to also embrace children conceived through assisted reproduction outside the Swedish medical care system. It is proposed that parenthood for a registered partner be presumed in the same manner as fatherhood for the husband in a marriage. New measures to make it easier for children born through assisted reproduction by sperm or egg donation to learn about their biological origin were also proposed. The report has been circulated for comment and these proposals are currently being processed by the Government Offices for a decision.

The Government Inquiry on gender recognition (Könstillhörighetsutredningen) proposed new legislation in a report in March 2007 (SOU 2007:16). The National Board of Health and Welfare published a report in 2010 on the legal conditions for declaration of gender, as well as care and support for people with transsexual and other gender identity disorders (Transsexuella och övriga personer med könsidentitetsstörningar – Rättsliga villkor för fastställelse av könstillhörighet samt vård och stöd). The National Board of Health and Welfare’s report contains proposals for amended conditions for the declaration of changed gender. The matter is currently being processed by the Government Offices.

Equal rights and opportunities regardless of sexual orientation or transgender identity or expression
A fact sheet can be downloaded or ordered from the Government’s website concerning the work for equal rights and opportunities regardless of sexual orientation or transgender identity or expression. The right to protection against discrimination on grounds of sexual orientation has been strengthened in recent years.

The fact sheet presents a selection of initiatives to combat discrimination on grounds of sexual orientation or transgender identity or expression and to promote equal rights and equal opportunities regardless of sexual orientation or transgender identity or expression.