LGBTI Antidiscrimination Legislation | Lessons from Kyiv Pride 2016 | The Time for LGBTI Inclusion | Transparency | Recommendations
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Meet the Author
Khrystyna Rybachok is a member of the Professional Government Initiative and a program assistant with USAID/ ENGAGE implemented by Pact, Inc. She is also the coordinator of the alumni organization of the Victor Pinchuk Foundation’s Worldwide Studies Community.
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In Ukraine, historically negative attitudes towards lesbian, gay, bisexual, transgender, and intersex (LGBTI) people are grounded in both traditional clericalism and a lingering Soviet mentality. Homosexuality was condemned during Soviet times and prohibited by the Criminal Code of the USSR. Although Ukraine was the first country of the former Soviet Union to decriminalize homosexuality in 1991, the stigma surrounding LGBTI people is largely due to the lack of human rights awareness and education. In fact, homosexuals are one of the most stigmatized groups in Ukraine. According to research by the Ukraine National Initiatives to Enhance Reforms (UNITER) project, 45% of the population would not like to have homosexuals as their neighbors (this category is considered the least tolerable after drug addicts and heavy drinkers).[note]Pact, GfK, “Citizen Awareness and Engagement of Civil Society (November 2015 – January 2016), ” GfK, January 2016. uniter.org.ua/upload/files/PDF_files/TK_final_Presentation%20for%20web-site_March%2030.pdf.[/note] According to a February 2016 poll conducted by the Kyiv International Institute of Sociology and commissioned by Nash Svit Center, no more than 4.3% of Ukrainians feel positive or rather positive towards the LGBTI community (see the chart below).
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Figure 1. How do you generally feel about homosexual people? (% of respondents)[note]Kyiv International Institute of Sociology, Nash Svit Center, “Attitude towards Homosexual People: February 2016, Analytical Report,” Kyiv International Institute of Sociology, February 2016 (6). www.gay.org.ua/publications/soc-poll2016.pdf[/note] [/wc_center]
Societal bias against LGBTI people and a weak antidiscrimination legal framework increase the likelihood of hate crimes. For example, in only two criminal proceedings on homophobia-motivated crimes in 2014 — the murder of an LGBTI person in Kharkiv and the arson of the Zhovten Cinema for showing a film on LGBTI-related issues — hate motives were considered by the court as mitigating instead of aggravating circumstances.[note]Nash Mir Center, Council of LGBT Organizations of Ukraine, “The Ice is Broken. LGBTI situation in Ukraine in 2015,” LGBT Human Rights Nash Mir Center, Council of LGBT Organisations of Ukraine, Kyiv 2016. www.gay.org.ua/publications/lgbt_ukraine_2015-e.pdf.[/note]
FIRST STEPS IN DEVELOPING LGBTI ANTIDISCRIMINATION LEGISLATION
Ukraine has made some modest progress establishing an appropriate antidiscrimination legal framework. These steps are largely related to the country’s obligations to the European Union the harmonization of Ukrainian laws with EU norms. In particular, the EU-Ukraine Association Agreement and Visa Liberalization Action Plan required the adoption of legislation combating discrimination of vulnerable groups, which Parliament did pass in 2015.[note]Roman Petrov, “What does the Association Agreement Mean for Ukraine, the EU and its Member States? A Legal Appraisal” in Het eerste raadgevend referendum. Het EU-Oekraїne Associatieakkoord, Montesquieu Institute, Den Haag, 2016 (71–88).[/note] This provides a window of opportunity to bring LGBTI-related issues into the spotlight in Ukraine. Moreover, Ukraine’s ability or inability to provide equality on the grounds of sexual orientation and gender identity could be considered by its Western partners as a “litmus test” of Ukraine’s adherence to European values and human rights.
In 2015, Ukraine had two major successes in guaranteeing the rights of LGBTI people. After a few voting attempts, the Verkhovna Rada adopted amendments to the Labor Code on November 12 that prohibit discrimination based on sexual orientation. These amendments are particularly important because a majority of LGBTI organizations report that employment is the sphere in which LGBT people most frequently face discrimination.[note]Equal Rights Trust, Nash Mir Center, “In the Crosscurrents. Addressing Discrimination and Inequality in Ukraine,” August 2015 (63). www.equalrightstrust.org/ertdocumentbank/In%20the%20Crosscurrents%20Addressing%20Discrimination%20and%20Inequality%20in%20Ukraine.pdf.[/note] Despite the fact that these changes were adopted in a rush ahead of an EU assessment, the amendments are considered the biggest success in LGBTI rights since homosexuality was decriminalized in 1991.
The second success was President Poroshenko’s August 2015 announcement of the National Human Rights Action Plan, which includes language envisaging the adoption of legislation that would combat discrimination on the grounds of sexual orientation and gender identity.[note]“Action Plan of the National Human Rights Strategy,” Uryadovyi Portal, November 2015. www.kmu.gov.ua/control/uk/cardnpd?docid=248740679.[/note] The Action Plan foresees introducing LGBTI-related amendments to the law “On the Principles of Preventing and Combating Discrimination,” developing legislation for the registration of same-sex partnerships, improving regulations concerning the treatment of transgender people, amending the Criminal Code to treat homophobia as an aggravating factor, and lifting the ban on adoption by transgender people.
The National Human Rights Action Plan includes language envisaging the adoption of legislation that would combat discrimination on the grounds of sexual orientation and gender identity.
While the adoption of the antidiscrimination amendments to the Labor Code was a success in itself, there is no guarantee that any provisions of the National Human Rights Action Plan will be adopted. Nonetheless, simply introducing these issues to national-level policy discussions in Ukraine is a significant step forward, as both of these legislative efforts were positively assessed in the EU Progress Reports on the EU Visa Liberalization Action Plan.[note]“Report from the Commission to the Council and the European Parliament. Sixth Progress Report on the Implementation by Ukraine of the Action Plan on Visa Liberalization,” European Commission, December 2015. https://ec.europa.eu/transparency/regdoc/rep/1/2015/EN/1-2015-905-EN-F1-1.pdf.[/note]
LESSONS FROM KYIV PRIDE 2016
Since 2012, the Kyiv Pride March — commonly referred to as the March for Equality — has been one of Ukraine’s primary LGBTI-related events and a symbol of the solidarity with the LGBTI community. On June 12, 2016, a record 1500–2000 participants marched in the city center in Kyiv’s first-ever peaceful Pride March.[note]“Press Release ‘Equality March 2016 Passed Peacefully for the First Time,’” Kyiv Pride, 12 June 2016. [/note]
Several factors made the 2016 Kyiv Pride successful. First, a set of key stakeholders supported having a successful and peaceful march, including international community, Ukrainian politicians and public figures, law enforcement bodies, the media, and mainstream human rights NGOs. Organized according to the theme of security as a human right, Kyiv Pride urged the police to demonstrate their defence of the people’s right to peaceful assembly. On the eve of the march, the then Head of National Police Khatia Dekanoidze assured the public of the police’s commitment to defend the security to the protestors.[note]“Dekanoidze: Police will Strictly Defend Equality March,” Kyiv Pravda, 5 June 2016.[/note] The scale of the security measures was unprecedented, as 6000 policemen protected 1500–2000 protesters, encircling the marching column and carefully controlling entry to the march.
In addition, an important factor in the march’s success was the role of international diplomats and organizations working in Ukraine. In the public statement released on the International Day Against Homophobia and Transphobia, the ambassadors of thirteen countries appealed to the police and Kyiv authorities to protect the right for peaceful assembly of LGBTI people and their allies.[note]“Joint Statement on the International Day Against Homophobia and Transphobia,” Embassy of the United States. , 17 May 2016. For more, see https://ukraine.usembassy.gov/statements/joint-statement-05172016.html.[/note] Members of the European Parliament, namely Rebecca Harms, Ana Homes, and Sophie Welt, visited Kyiv to attend the demonstration. Ambassadors of EU countries in Ukraine also joined the demonstration. The United Kingdom’s new Ambassador to Ukraine Judith Gough, an openly gay diplomat, is a strong supporter the Ukrainian LGBTI community and speaks often at LGBTI events.[note]“British Ambassador to Ukraine Spoke for the First Time About her Orientation and Helping LGBT,” Radio Svoboda, 19 March 2016.[/note] Finally, the support of Ukrainian politicians was more audible than in previous years. A number of young members of Parliament attended Kyiv Pride, including representatives of Euro-optimists caucus Serhii Leshchenko, Svitlana Zalishchuk, and Mustafa Nayyem. These MPs were key backers of the adoption of antidiscrimination amendments to the Labor Code in November 2015.
Forty human rights organizations issued a joint statement supporting Kyiv Pride, which shifted the perception that the march was solely connected to LGBTI issues but rather connected to overarching ideas of human rights, equality, and non-discrimination. Importantly, the church condemned threats of violence from right-radical movements, calling instead for peace and tolerance.[note]“Ukrainian Church Urges Against Fighting at the ‘Equality March’ in Kyiv,” 5.ua, 10 June 2016.[/note]
THE TIME FOR LGBTI INCLUSION
Both the successful adoption of LGBTI non-discrimination legislation and the success of the Kyiv and Odesa Pride marches created broader visibility of the LGBTI community and the difficulties its members face. Research repeatedly shows that the level of acceptance of LGBTI people, as well as the acceptance of other minorities, is positively correlated with the level of awareness of and personal contact with that minority.[note]Yuriy Pryvalov, Olesya Trofymenko, Oksana Rokytska, Maksym Kasyanchuk, “Research Report: ‘Opinion Poll to Setermine Public Perception of LGBT and Ways to Improve it,’” Center of Social Expertize of the Institute of Sociology of the National Academy of Sciences of Ukraine, 2013. upogau.org/netcat_files/192/224/h_b922b7f45346af6ed06dccc645f0550a. [/note] It is key for Ukraine to further develop a non-discrimination legal framework, as well as monitoring the implementation of legislation already adopted, like the amendments to Labor Code and the National Human Rights Action Plan. However, the next challenge for Ukraine’s LGBTI community will be to turn the success of the Kyiv Pride march and a mobilized support network into viable policy change, a problem shared by much of Ukraine’s post-Maidan civil society.
Chapter 105 of National Human Rights Action Plan, called “Establishing an Effective Framework for Preventing and Combating Discrimination,” contains a set of legislative initiatives concerning LGBTI people. One initiative is a bill on the registration of civil partnerships for hetero- and same-sex couples that should be developed by the Cabinet of Ministers of Ukraine by the second quarter of 2017.[note]“Action Plan of the National Human Rights Strategy,” Uryadovyi Portal, November 2015. www.kmu.gov.ua/control/uk/cardnpd?docid=248740679.[/note] The Action Plan prescribes that draft law should consider proprietary and non-proprietary rights of civil partners, including ownership and inheritance rights, alimony rights, and the right not to be called as a witness against one’s partner.
Discussing the legalization of same-sex unions is likely premature until widespread homophobia and transphobia are overcome, according to LGBTI activist Hanna Dovgopol.[note]Anna Dovgopol, personal interview with the activist, 13 October 2016.[/note] That said, the difficulties faced by non-recognized same-sex partners have been exacerbated recently due to annexation of Crimea and the militarization of the country, according to analysis by Nash Mir.[note]Nash Svit Center, “Collection of Materials on Introduction of Registered Partnership in Ukraine,” Nash Svit Center, 2016. gay.org.ua/publications/civil_partnership_propositions2016.pdf. [/note] Same-sex couples who find themselves internally displaced persons (IDPs) have no right to common shelter, no right to state support if a partner dies in the Donbas War, no inheritance rights, etc., since their union is not recognized by the state.
CONCLUSION AND RECOMMENDATIONS
For years, LGBTI people have been among the most stigmatized parts of society. Unwillingness to recognize the rights of LGBTI people is largely connected with not knowing who they are and the absence of personal connections with them. As in many countries around the world, there is much work to be done to make society more inclusive LGBTI people, not least because the way they are treated often serves as a “canary in the coal mine,” warning of possible discrimination against other groups in society.
Together with the adoption of the Labor Code amendments and the National Human Rights Strategy, the large-scale peaceful Kyiv and Odesa Pride marches provide some hope that the non-acceptance of LGBTI people might give way to greater inclusion. However, Ukrainian legislation remains far behind the progressive Western antidiscrimination laws, and the words “same-sex partnership” are fully absent from Ukrainian legislation. For these reasons, U.S. policy toward Ukraine regarding LGBTI issues should focus on the following:
- The U.S. should provide support to public outreach programs that expand societal dialogue on LGBTI issues. American donors like USAID should continue funding communication activities targeted at those people who have progressive pro-European views but who do not necessarily know of or support the LGBTI rights movement. This focus will help persuade the doubting majority.
- The U.S. should continue to apply the best U.S. public diplomacy tools to provide support to the LGBT community in Ukraine. The U.S. should use creative and non-confrontational means to counter anti-LGBT messaging. Artistic events — such as the concert of the gay men’s chorus Potomac Fever on the stage of Lviv Philharmonic — have the capability to produce tremendous shifts in public opinion.
- The U.S. should support programs focusing on advocacy for non-discrimination legislation on the grounds of sexual orientation and gender identity. U.S. government grant programs should support the adoption of antidiscrimination legislation envisioned by the National Human Rights Action Plan[note]Attachment to the Decree of Cabinet of Ministers of Ukraine. Action Plan to Implement the National Human Rights Strategy of Ukraine, 23 November 2015. www.kmu.gov.ua/document/248740672/R1393.doc[/note] (Chapter 105, point 6) concerning, among other things, legislation recognizing same-sex partnerships, improving regulations concerning transgender people, and amending the Criminal Code to treat sexual orientation or gender identity hatred motives as aggravating, not mitigating, circumstances in criminal proceedings.
- The U.S. should encourage Ukraine to adopt even a minimal same-sex partnership law. Legal recognition of same-sex unions would secure the rights of same-sex couples in the face of military hostilities in Ukraine and annexation of Crimea.
The views above are those of the author.