Lausunto YK:n taloudellisten, sosiaalisten ja sivistyksellisten oikeuksien (TSS-oikeudet) sopimuksen toteutumisesta Suomessa [ENG]

Finland: Implementation of the International Covenant on Economic, Social and Cultural Rights 

Submitted for the consideration along with the sixth periodic report of states parties due in 2010 under articles 16 and17 of the Covenant by Finland and for the attention of the Pre-sessional working group

September 26, 2013

Submitted by:

Seta – LGBTI Rights in Finland
Pasilanraitio 5, 00240 Helsinki
Finland

http://www.seta.fi
Telephone +358(0)503098108
Contact person: Secretary General Aija Salo, email paasihteeri@seta.fi

 

Introduction

This information is submitted by Seta [1] to the Committee on Economic, Social and Cultural Rights in order to draw the attention of the Committee to human rights concerns affecting lesbian, gay, bisexual, transgender and intersex (LGBTI) people in Finland. This compilation is based on published as well as unpublished data, such as information received by the submitting organizations from their members.

In the report submitted to the Committee by Finland[2] the measures adopted and factors affecting the fulfillment of obligations under the Covenant are discussed in considerable detail. The rights that LGBTI people should be able to exercise under the Covenant, however, are hardly mentioned.

Seta considers that the article 2.2 is crucial in the implementation of the Covenant. LGBTI people must enjoy all the rights guaranteed by the Covenant without discrimination of any kind. This view is confirmed by comments by the Human Rights Council[3] as well as by the Committee on Economic, Social and Cultural Rights[4].

Seta asks the Committee to include in the List of Issues questions related to the enjoyment of all rights without discrimination based on sexual orientation, gender identity or gender expression. Particularly, Seta submits for consideration issues relating to the discrimination of LGTBI persons in work, social security, health and education. These issues should be addressed not only under article 2.2 but also under the relevant thematic articles.

Article 2 – Exercise of rights without discrimination

The Non-Discrimination Act of Finland does refer explicitly to sexual orientation, but in the act different grounds for discrimination are dealt with in an unequal way.

Work to revise the Non-Discrimination Act has been going on since 2006 and a government proposal is supposed to be given to the parliament in 2013 together with a proposal to include gender identity and expression and intersex in the gender equality act. These reforms are anticipated to be positive to their content but so far there is a lack of sufficient funding to the equality bodies monitoring the implementation of the laws.

That LGBTI people are not able to enjoy all the right guaranteed to them in Finland has been pointed out many times, e.g. by the Human Rights Council[5] and the Human Rights Committee[6].  Finland also has to a high extent failed to adopt comprehensive strategies on protecting the human rights of LGBTI people, contrary not only to the HRC recommendations, those of the European Union Agency for Fundamental Rights (FRA), of the Committee of ministers of the Council of Europe  and of the Commissioner for Human Rights of the Council of Europe. The scope of specific actions taken by Finland to combat discrimination on the grounds of sexual orientation and gender identity and promote the human rights of LGBTI people have been limited.

Articles 6 and 7 – Right to work and to just and favorable conditions of work

LGBTI people experience discrimination at work[7]. There have been several cases of discrimination against transgender people in the media recently. Also cases of discrimination based on sexual orientation have come to the knowledge of NGOs. It can be assumed that few people experiencing employment discrimination due to sexual orientation or gender identity take their case further due to fear of further discrimination in the workplace and being “outed” in one’s social environment. The lack of an ombudsman with a mandate to investigate LGB discrimination cases in recruitment and employment is another reason for the lack of reported cases.

Articles 9 and 11 – Right to social security and adequate standard of living

LGBTI people experience discrimination in services. Most social and health care services are based on a gender normative and heteronormative system. Professionals within these fields lack adequate understanding about LGBTI people and their family relations and needs. It is for example sometimes difficult for the same-sex spouse of a patient in a hospital to get recognized by the hospital staff as a relative. Many elderly LGBTI people who are dependent of care facilities are afraid to be open about their identities in fear of discriminatory attitudes by the staff. According to a survey conducted by Seta, many staff members working in elderly homes do not see knowledge about LGBTI issues relevant for the profession.

Article 10 – Protection of the family

In families of same-sex parents, when a baby is born to the family, the spouse of the biological parent only receives parental rights after a complicated procedure of second-parent adoption, whereas for married different-sex couples, both parents have the same parental rights from the moment of birth.

Trans persons’ access to legal parental rights is jeopardised in cases where the parent’s legal gender marker does not “correspond” to the sperm or egg. The government is currently reviewing the Paternity Act but it seems that the outlaw status of transgender parents will not be approriately dealth with. This puts children into unequal position depending on the gender identity of their parents as the children of trans persons suffer legal uncertainty in relation to their parents in certain cases. Seta asks the Committee to raise the issue of family rights of trans persons in the List of Issues.

Finnish law grants specific, partly salaried, parental leaves. This right, however, is not quite fulfilled for families of LGBTI people. The spouses of biological mothers or fathers are only entitled to the so called paternity leave after second-parent adoption has been approved, which may take more than half a year since the birth of the child. Legal fathers living in a separate household from the legal mother are not entitled to full rights or compensations, although they may be very involved in the care of the children.

Seta asks the Committee to pose questions to Finland about the equal treatment of all families in parental allowances and leaves and parental rights.

Article 12 – Right to health

For the legal gender reassignment a person must have a medical certificate verifying sterility. This can be seen as a form of forced sterilization. Council of Europe Commissioner for Human Rights has taken a strong stand against sterilization as a prerequisite for gender reassignment.  Also the Committee of Ministers of the Council of Europe has questioned requirements of physical changes as prerequisites for gender reassignment. The United Nations Special Rapporteur on Torture recently defined the sterility requirement of trans persons as a form of torture. The National Ethical Board of Social and Health Sector, ETENE, has stated in May 2013 that the sterility requirement may constitute a human rights violation.

The government of Finland has founded a working group to examine the prerequisites fo gender marker change but at this stage it is impossible to foresee the result of that work. Seta asks the Committee to pay attention to the human rights violations against transgender and gender variant persons.

Considerable local variation is found in the level and quality of treatment and support for transgender people, especially gender variant children and transgender teenagers. Thus these young people do not have equal access to essential health care services. They are often treated by professionals who do not have sufficient knowledge on gender variance. The services should be equally efficient and of high quality throughout the country. Trans youth have also been denied referral to proper professional guidance and treatment preparing for gender reassignment even as the law on gender reassignment includes no age limit for access to investigation and treatment. The access of young people to gender identity investigation was discussed in 2011 by the National Ethical Board of Social and Health Sector, ETENE. It stated[8] that young people should have access to proper support and treatment by experts in accordance to current legislation.

Intersex children have been exposed to non-medically based surgery which may cause serious mental or physical complications in later life. There is  only very limited support or counseling to the parents of intersex children. So far no comprehensive, high-quality data on the experiences of intersex persons of the treatment has been gathered in Finland. Seta asked in 2011 together with a range of NGOs that monitoring the care of intersex children would be chosen as one of the projekcts included in the first National Human Rights Plan of Action but the topic was omitted by the government.

The National Institute for Health and Welfare recently amended the ICD-10 classification of diseases and health problems as applied in Finland and excluded classes on transvestism (F64.1 & F65.1), but maintained transsexualism as a mental disorder, contrary to, e.g., the standpoint of the European Parliament  and of the Council of Europe Commissioner for Human Rights.

Article 13 – Right to education

Children and youth of various gender identities suffer from the predominant gender normativity in schools and from the lack of proper and sensitive support systems. The risk of LGBTI people committing suicide is high according to international data and the same is supposed to be true in Finland. This concerns especially young people who, in several previous studies made in other countries, have been found to have a higher risk of suicidal behaviour. Even though the general suicide rate in Finland is high in international comparison, so far no suicide prevention program has had an explicit LGBTI angle.

A recent study[9] revealed that some 36 percent of the young respondents had been targets of bullying in schools because their sexual orientation or gender identity. Similarly, according to another study[10] only 12 percent of teachers believed that a student’s openness about sexual orientation in school would be accepted by her mates. Harassment and uncertainty of acceptance as well as invisibility in school life and curricula may furthermore significantly raise the risk of suicides among children and youths belonging to sexual and gender minorities. There have been plans to amend legislation and some special programs by the education authorities[11]  to fight discrimination and violence in schools, but they don’t include references to sexual orientation or gender identity. According to a study that is soon to be published by the Human Rights Center, systematic human rights education is lacking in Finland.

Seta asks the Committee to raise the lack of comprehensive human rights education in Finnish schools and educational institutions. Human rights education should always include references to the universality of human rights and information about specificities related to vulnerable groups, such as LGBTI people. The Yogyakarta principles, although dating back to 2006, are still a relevant document ot highlight the meaning of human rights from the point of view of sexual orientation and gender identity.

 


[1] Seta ry – LGBTI Rights in Finland is a national LGBTI rights non-governmental organization, founded in 1974. Seta has 21 member organizations and numerous supporting members throughout Finland.

[2] Consideration of the sixth periodic report of States partiesdue in 2010 under articles 16 and17 of the Covenant, Finland, E/C.12/FIN/6

[3]  Report of the HC – Study documenting discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, A/HRC/19/41

[4] See general comment no. 20 (E/C.12/GC/20), para. 32, no. 18 (E/C.12/GC/18) (right to work), para. 12 (b) (i); No. 15 (E/C.12/2002/11) (right to water), para. 13; No. 19 (E/C.12/GC/19) (right to social security), para. 29; and No. 14 (E/C.12/2000/4) (right to the highest attainable standard of health), para. 18.

[5] Report of the Working Group on the Universal Periodic Review, Finland, A/HRC/21/8

[6] Concluding observations on the sixth periodic report of Finland, CCPR/C/FIN/CO/6

[7] Charpentier, Sari ”Heteronormativity and Working Life Course in the stories of  People over the Age of 45” in Lehtonen, Jukka & Mustola, Kati (2004) “Straight people don’t tell, do they…?” Negotiating the boundaries of sexuality and gender at work. Research Reports 2b/ 04. Ministry of Labor 2004. Available at: http://www.valt.helsinki.fi/sosio/tutkimus/equal/wwweng/publications.htm

[8] http://www.etene.fi/fi/aineistot/tiedotteet/tiedote/view/9979

[9] Huotari, K., Törma, S. & Tuokkola, K. 2011. Discrimination in education and leisure time. Ministry of the Interior publication 11/2011 [in Finnish].

[10] Puustinen, M. & Tikkanen, T. 2010. Moninaisuus ei mahdu kouluun. Opettaja lehti 3: 14-22. [in Finnish, ’Diversity doesn’t fit in the school’].

[11] Antibullying program KiVa koulu [’cool school’], Finnish Ministry of Education and Culture, http://www.kivakoulu.fi/there-is-no-bullying-in-kiva-school

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