Annual Review 2011

2011


Asylum

  • In February, a gay Iranian man was denied asylum in Switzerland because of a previous drug trafficking conviction and the Federal Administrative Tribunal ruled that “systemic discrimination is not detectable” in Iran, a claim highly contested by LGBT human rights defenders. The Court said that homosexuality is tolerated “when it is not done openly and in an off ensive manner.” A Swiss law passed in 2010 mandates the deportation of foreign nationals convicted of certain crimes, including drug traffi cking. Though the man had previously been granted temporary residency status because his partner is Swiss, his post-conviction application was denied.
  • A trans man arrived in Switzerland with a visa issued by another Dublin II signatory State (European agreement on procedures for asylum claims). According to this agreement, the other State was in charge for the processing of his asylum claim. However, he requested asylum in Switzerland, but was denied because Switzerland did not consider itself to be procedurally responsible in this particular case as he already had a visa from another Dublin II signatory State. This decision was revoked following an intervention by two human rights NGOs which asked the Federal Office for Migration to make use of the Dublin II sovereignty clause because the trans man was neither safe in the other country nor had access to needed gender reassignment treatment.
  • In November, the Federal Offi ce on Migration organised two days of information (one in French, one in German) for their employees on LGBT refugees. Speakers were mainly from Queeramnesty, Transgender Network Switzerland (TGNS) and some psychiatrists. One of the key issues revolved around how the interviews on the request for asylum are to be conducted.

Family

  • Over 200 people attended the National Rainbow Family Conference held in Bern in April. The conference planners defi ned rainbow families as “families in which at least one parent identifi es as lesbian, gay, bisexual, or transgender.” Same-sex couples are currently barred from adopting children in Switzerland, and lesbian couples do not have access to fertility treatment. Participants of the conference, which included politicians, discussed these policies and advocated for change.
  • The Swiss Registered Partnership Act excludes adoption by same-sex couples (including second parent adoption). In 2009, a woman in a same-sex partnership petitioned to adopt her partner’s daughter, but her petition was rejected both by the District Court and the Superior Court of Zurich. In 2011, the Federal High Court ruled against the couple, mainly because they had not been in a registered partnership for a minimum of fi ve years (five years of marriage being a prerequisite to adopting a partner’s child). However, at the time of judgement it would have been impossible for them to have been in a registered partnership for fi ve years given the fact that the Act only entered into force on 1 January 2007.
  • In September, the National Council, the Lower House of Parliament, voted against a petition asking for the entitlement to adopt for registered partners. In November, Christian Democratic President Christophe Darbellay said that he saw no reason to legalise adoption for same-sex couples just because they were already raising children any more than one would legalise cocaine just because people used it. Moves to amend the legislation were set to continue in 2012. Also in November, after Parliamentary elections, the Council of States (the Upper House) voted in favour of adoption by registered partners if it is the best solution for the well-being of the child.

Health

In April, the National Council rejected a proposal to forbid reimbursement for gender reassignment surgery from the basic, compulsory health insurance.

Legal gender recognition

  • In February, the High Court of the Canton of Zurich ruled that trans people can change their legal gender without proving that they had undergone gender reassignment surgery. It is the first court in the country to rule that surgery is not a requirement of legal gender recognition. Infertility is still required, but it can be the result of hormonal treatment and the Court allowed for it to be reversible. The Court held that requiring surgical intervention would be a violation of the fundamental right to personal integrity.
  • In October, the Appeals Body in the Canton of Bern (POM) decided in favour of a trans person in a case involving a legal name change. The administration office in charge of name changes had demanded proof that a person had lived for three years using their new name before allowing a legal name change. The POM found that the requirement was disproportionate and of no additional significance as a diagnosis or medical certificate as proof of trans identity was mandatory.

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