The evolution of the recognition of specific rights for vulnerable groups always begins with the identification of sources of threat. Obviously, we cannot speak of “special” human rights, as this would relativize human status; consequently, the focus is on examining the sources of threat that endangers vulnerable groups. From the perspective of the common sources of threat of LGBTQIphobia and the exclusions that it entails, there are grounds to talk about LGBTQI causes, which correspond to rights not yet fully guaranteed.
The classification of LGBTQI rights echoes the classic list as it appears in major international law instruments (e.g., the Universal Declaration, the International Covenant on Civil and Political Rights), in their European counterparts (the European Convention on Human Rights, the EU Charter of Fundamental Freedoms) and, of course, in national constitutions. The first systematic inventory of LGBTQI rights, together with recommendations for practical guarantees of their effective implementation, appears in the "Yogyakarta Principles" (2006). This is a text that was agreed between two international non-governmental organizations and which, of course, does not produce any legally binding effects. Nevertheless, it remains, particularly following its update with additional editing in 2017, the most central point of reference for LGBTQI rights internationally. That is why, in 2008, the European Commissioner for Human Rights recommended that the Member States of the Council of Europe apply the “Yogyakarta Principles” in all their political, administrative and legal procedures. Two years later, the Council of Europe published Recommendation R (2010) 5 on combating discrimination on grounds of sexual orientation and gender identity. This Recommendation became the first European instrument to summarize the common sources of threat to LGBTQI rights and to indicate measures that the Member States must take. The text is not formally invested with legally binding effect, but the Council of Europe is committed to regularly monitoring Member States' compliance with the Recommendation and to publishing the results.
In Greece, the primary guideline for the recognition and institutionalization of LGBTQI rights is the Report on the National Strategy for LGBTQI+ Equality, a text drafted by an ad hoc commission set up by the Prime Minister, following the corresponding Action Plan on LGBTQI Equality of the European Commission (2020). In addition to this guideline, there is also the Memorandum of the National Commission for Human Rights, which summarizes the problems that still exist in legislation and in administrative measures, and also recommends ways in which the State can resolve these problems.
Based on these classifications and categorizations of LGBTQI rights, by reviewing the existing legislation we can straight away reach a general conclusion: there are no comprehensive guarantees of these rights by thematic category. The existing guarantees are piecemeal, partial, and incomplete. Rights are guaranteed in special laws either with prohibitions on fields of freedom, or by refusing to cover entire areas corresponding to the scope of each right, or by denial and carelessness as to the interaction of national guarantees with Greece’s conventional obligations or even with the constitutional imperative for equal treatment.
2. A discriminatory civil partnership
Greece is the first country internationally to initially legislate the possibility of entering into a civil partnership exclusively for heterosexual couples. Following an application by same-sex couples, the European Court of Human Rights condemned Greece for this exclusion, holding that the exclusion of same-sex couples from the possibility of entering into a civil partnership violated the right to respect of private and family life (Article 8 ECHR) in conjunction with the prohibition of discrimination (Article 14 ECHR). Of great interest is the defense that Greece put forth in an effort to justify this exclusion to the European Court of Justice: the only new aspect that the civil partnership law (2008) introduced to the legal status of a couple was the automatic recognition of paternity for children born during the period that the civil partnership agreement remained in force. That is, Greece argued that since the presumption of paternity works only in heterosexual couples, it followed that same-sex couples did not need this specific legal seal of their relationship!
As outrageous as this excuse may sound, it seems that Greek legislators continue to apply it faithfully to this day. Following the country’s conviction by the ECtHR, in 2015 a law was passed, which extended the possibility of entering into a civil partnership agreement to same-sex couples, while all the legal effects that exist for the couple now correspond to those of marriage. Except for one: the right to parenthood. That is, under the Greek law on civil partnerships, couples in such partnerships (heterosexual or same-sex) do not have the right to jointly adopt. Also, in cases where one member of the civil partnership has a biological child from a previous relationship, parental rights are not granted to the second non-biological parent. Finally, the law on medically assisted reproduction allows recourse to surrogacy only for heterosexual couples and only for medical reasons (physical inability to procreate), that is, not for social reasons such as non-gender heterogeneity. However, in the law on civil partnership agreements, the provision on the “presumption of paternity” is maintained, which pertains exclusively to heterosexual couples and leads to the automatic recognition of the paternity of children born to heterosexual couples in the context of a civil partnership.
The 2015 law on civil partnerships was heavily criticized for this large gap, as it contains no provision whatsoever for the fate of already existing children being raised by same-sex couples. However, in 2018, a small alternative possibility opened up, with the law on fostering children. Same-sex couples can now be recognized as foster parents in the context of a civil partnership. Of course, foster care does not establish a legal relation between the children and the foster parents, it has a limited duration and is in no way the same as adoption. But it was a first, timid step towards recognizing a form of same-sex parenthood.
3. An incomplete legal recognition of gender identity
The process for the legal recognition of gender identity concerns transgender persons who want the personal data that appear in their legal identification documents to correspond to the individual experience of their gender and to the name they use in their everyday lives. Already since 2016, the Greek courts have recognized that the harmonization of the legal recognition of gender identity is not predicated on a person having undergone surgery in their reproductive organs, thus dissociating the concept of gender from anatomical stereotypes.
However, in 2017, the lawmakers who intended to “consolidate” these judicial developments, instead of facilitating the process, loaded it with new exclusions. Firstly, the prohibition for underage trans persons that did not exist under the previous status since parents could ordinarily initiate the relevant proceedings as legal representatives of their child. Under the new law, parental consent is not enough; minors between 15 and 17 years old must also obtain a positive recommendation from an inter-ministerial committee. Next, the law imposed an obligation of celibacy: in order for a person to proceed to the legal recognition of their gender identity, they have to be unmarried or divorced! Indeed, if a person already has children, their new name cannot be substituted on the children’s birth certificates, and as a result the child appears to have as a parent a “dead name”, the name of the transgender parent before they proceeded to the legal recognition of their gender identity.
An additional prohibition imposed by the 2017 law is the possibility of going through the process of legal recognition of gender identity only up to two times. Furthermore, this process does not permit a complete change of a person’s surname – the decision for such a change remains the exclusive competence of the mayor of the municipality where a person is registered in the municipal register. However, the very old ministerial decision regarding a change of surname does not explicitly include gender identity as a reason for the change – e.g., due to the interruption or disruption of relations with the transgender person’s family of origin. Finally, this legislation does not make any provision for the legal recognition of gender identity of people who were not born in Greece (e.g., refugees), as it is structured on the basis of correcting a Greek birth certificate. For this last legal gap, the solution under the proportionality principle was provided by the courts which recognized the need for the application of the provisions in cases of transgender refugees who de facto cannot return to their countries and their Greek documents (decision to grant refugee status) must be modified to reflect their gender identity.
4. A partial prohibition of discrimination
The prohibition of discrimination on the grounds of sexual orientation and gender identity / sex characteristics was established at the level of common legislation with Law 4443/2016. This law defines the concepts of direct and indirect discrimination, as well as the legal recourse for protection against unfair discrimination on a number of grounds, not just on the basis of sexual orientation and gender identity. However, it does not recognize equal protection against discrimination in all areas where such discrimination may occur. In particular, the full protection of the law concerns the labor sector, that is, it prohibits discrimination in the conditions of access to employment, in the conditions under which work is provided, in grounds for promotion and grounds for dismissal, in vocational training and in trade unionism. However, while the same law provides that the prohibition of discrimination on the grounds of national or racial origin is extended to a number of other areas beyond the labor sector, this does not apply to discrimination on the grounds of sexual orientation and gender identity or sex characteristics. Specifically, according to Article 3, this law does not prohibit LGBTQI discrimination in social security, health care, social benefits and tax concessions, in education, and in access to the supply and provision of goods and services that are commercially available to the public, including housing.
5. An inadequate anti-racism law
In 2014, the anti-racism law was amended in order to criminalize hate speech not only on the basis of race, nationality or religion as had been the case until then (Law 927/1979), but to include other categories of racism, such as hostility due to sexual orientation and gender identity. However, the amendment of Law 4285/2014 was also a change for the worst: while in its original form the law also punished the propagation of racist ideas, with the amendment of 2014, in order for a perpetrator to be convicted, they must be guilty of “public incitement to discrimination, hatred or violence” and indeed in a way “that endangers public order or poses a threat to life, freedom, or physical integrity” of vulnerable groups. These additions have made the anti-racism law difficult to enforce, even in obvious cases of public incitement to hatred or violence. In the case of a well-known former bishop who had urged his congregation to spit on homosexuals wherever they encountered them, he was initially acquitted at first instance, and only after an appeal by the Public Prosecutor's Office he was convicted in the second degree, and his conviction was confirmed by the Hellenic Supreme Court.
6. A partial ban on conversion practices
The sad tradition of inadequately guaranteeing LGBTQI rights continues unabated even following the publication of the National Strategy for LGBTQI+ Equality. Recently, legislators passed Law 4931/2022 which bans “conversion practices”, i.e., all unscientific “methods” with which individuals promise to “correct” or “cure” the sexual orientation or gender identity of homoerotic or transgender people.
The banning of such “treatments” has been a consistent demand of the LGBTQI agenda that is also reflected in the National Strategy for LGBTQI+ Equality, without exceptions. However, the final legislative ban had significant gaps. To begin with, the prohibition on advertising and commercial promotion of such practices applies only to “professionals for remuneration” and does not cover the various confessors and priests who may carry out such torture without remuneration. Also, the unjust nature of the act is revoked if it is proven that the adult victim provided explicit consent. An extremely unfortunate provision that completely negates the rationale of the ban itself, which is founded on the premise that, scientifically, sexual orientation is not a disorder. And finally, it does not provide explicit sanctions for so-called “professionals” and also for parents, such as, for example, French law that includes the threat of professional licenses being revoked and losing the custody of minors in the event of a conviction.
7. The right to marriage
Greece does not provide a right to marriage, and even the National Strategy for LGBTQI+ Equality includes just a mild exhortation to legislators in this direction. In 2017, the Hellenic Supreme Court held that although the Civil Code does not explicitly presuppose the otherness of the sex of future spouses, the prohibition of same-sex marriage derives from the interpretation of the term itself, referring to a definition from Roman Law! In any case, the recognition of the right of LGBTQI people to marry, i.e., non-discrimination in marriage, presupposes the avoidance of exclusions: for example, recognizing marriage without recognition of parental rights is pointless. The injustices that were made in regard to civil partnerships must not be repeated in the legislation of inclusive marriage. At the same time, such marriage should not be understood solely as “civil unions”; religious same-sex weddings should also be recognized as having legal effect, for those dogmas and denominations that recognize and perform them.
This article was first published here: gr.boell.org