Recognition of sexual orientation: 
The Scandinavian Model
By Steffen Jensen

This paper will primarily summarize the development of the legal situation for gay men and lesbians in Denmark: penal code development, anti-discrimination laws and the law on registered partnership. The relation to EU regulations will be touched upon and the legal situation in the other Scandinavian countries will be mentioned.

Penal code development in Denmark
From 1683 to 1866 male homosexual acts were punishable with the death penalty, which also was the case before 1683, but no Dane was ever executed for homosexuality; in all known cases the penalty was changed to imprisonment. From 1866 the penalty was changed to imprisonment. The ban on male homosexuality was repealed as part of a major penal code reform in 1930. The penal code did still distinguish between homosexual and heterosexual relations in e.g. prostitution, age of consent, rape etc. The age of consent was 18 for homosexual relations (21 in case of seduction) and 15 for heterosexual relations (18 in case of seduction).

In 1961 there was a set back in the sense that a law criminalizing the person who pays in a male prostitution relationship, if the other person is under the age of 21 years was introduced. After much public attention and pressure from the gay community the law was repealed in 1965. The main reason for repealing the article was that it constituted a discrimination of homosexual acts.

In 1967 total equality between heterosexuals and homosexuals in the penal code was reached as far as the regulations on prostitution and seduction are concerned. 

In 1976 the same age of consent (15 years) was introduced for both hetero- and homosexual relations. And finally in 1981 the same penalty was introduced for sex crimes involving two persons of the same sex as for sex crimes involving persons of the opposite sex and after that there is no more any discriminatory regulations on homosexuality or homosexuals in the penal code - or anywhere else in the legislation.

In 1981 homosexuality was removed from the heath authorities' list of diseases and in 1984 the Parliament  decided to set up a commission on investigating the conditions for homosexuals in the Danish society. The commission published a preliminary report on homosexuals and inheritance tax in 1986, leading to a law on reduced inheritance tax for gay/lesbian couples to the same amount as for married couples. The commissions 's final report was published in 1988.

Anti discrimination laws
Denmark has three anti-discrimination laws concerning sexual orientation. 

The anti-discrimination provision in the penal code was changed in 1987 after recommendation of the above mentioned commission to include sexual orientation, so that it now reads:

"Persons who publicly or deliberately disseminate statements or other reports by which any group of people are threatened, ridiculed or degraded on account of their racial origin, skin colour, national or ethnic origin, beliefs or sexual orientation, are liable to fines, short-term detention or imprisonment for up to two years."

At the same time the law forbidding discrimination on grounds of race etc. was changed also to include sexual orientation, so that it now reads:

"Any person who within commercial or other activity declines to treat an individual on the same basis as others on ground of racial origin, skin colour, national or ethnic origin, beliefs or sexual orientation, shall be punishable by fines, short-term detention or imprisonment for up to six month."

These two laws do not, however, cover the private labour market, and it was not until last year before we got a law on anti-discrimination in the private labour market in Denmark.

The law includes sexual orientation as an area of non-discrimination in the private labour market.

The law defines 'discrimination' as any direct or indirect form of discrimination based on race, colour, religion, political belief, sexual orientation, national, social or ethnic origin. According to the law it is forbidden for an employer to discriminate an employee - or a person who seeks employment - at hiring, firing, replacement, promotion, salary or other work conditions. Furthermore it is forbidden to discriminate as far as access to education and training and in-service-training is concerned.

The law is  not valid for companies with an explicit purpose to promote a specific political or religious purpose.

In the remarks to the bill the inclusion of sexual orientation is motivated by the fact that sexual orientation is included in the rest of the Danish anti-discrimination provisions. The law came into force by July 1st 1996. 

Partnership law
The majority of the commission set up by the parliament did not propose regulations for homosexual couples, but a proposal on a registered partnership similar to marriage from a minority of the commission was taken to parliament by a group of parties in the parliament who represented a majority in parliament - in opposition to the then government.

The history of the partnership bill and a description of the political and social environment in Denmark leading up to the worlds first law on homosexual couples is given in an article by two of the leading figures in the process, Bent Hansen and Henning Jørgensen

And thus in 1989 Denmark got a law on registered partnership for two persons of the same sex. 

The law enables two persons of the same sex to register their partnership and gives them apart from some exception the same rights and responsibilities as a heterosexual married couple. 

In 1999 the law was changed so that the provision on citizenship was changed into a provision on citizenship either in Denmark or in a country having similar legislation. And also two foreigners who have lived two years in Denmark can register their partnership.

Furthermore a partner in a registered partnership can now adopt the children of her/his partner.

After these changes the exceptions are

{	a registered couple can not adopt foreign children,
{	there is no possibility of church wedding and
{	one of the partners in a registered partnership must be a Danish citizen or citizen in a country with similar legislation and live in Denmark, or both (foreign) partners must have lived in Denmark for at least two years.

Apart from these exceptions the conditions are exactly the same as for heterosexual marriage. The wedding is the same as for civil marriage and the divorce regulations are the same.
 
The law is not valid outside Denmark, so the condition that one of the partners must live in Denmark is obviously relevant. The condition about citizenship was not in the original bill, but was introduced during parliamentary debate on initiative of the right wing Progress Party.

A committee set up by the Danish bishops released its report in June 1997 recommending to the bishops that gay and lesbians partnerships should have the possibility of some kind of church blessing.

The committee proposed three different ways

{	a blessing similar to the one given to heterosexual couples who want a blessing of their civil marriage
{	another kind of blessing taking into account that the couple is gay/lesbian
{	an intercessory prayer for the couple.

The result has so far been that priests can bless a registered couple in the church, but they may not use the same ritual as for marriage.

Just a few days after the report to the bishops was released the Danish Parliament banned assisted insemination for lesbians.

The bill was originally proposed in a form including no constraints as for who could be treated. During the second hearing in the parliament on the law a change was passed claiming marriage or marriage-like partnership between man and woman in order to obtain assisted insemination. 

The National Danish Organisation for Gays and Lesbians made a huge lobbying campaign in the parliament, and in the third and final hearing three amendments were put forward. One would remove the article introduced, whereas another would narrow down its applicability to insemination where the conception is made exterior to the body. This would make it possible to provide artificial insemination to lesbians. A third amendment would make available treatment to lesbians if the identity of the male donor was known. All of the three proposals fell. 

Thus from October 1st  1997 assisted insemination  in a medical environment is no longer available to lesbians, neither in public hospitals nor in private clinics. Several doctors have already said publicly that they will not ask questions about the private life of women seeking their assistance in insemination. The law does not, however, regulate non-clinical treatment. Thus artificial insemination in private is not criminalized. 

This was the first time since 1961 the Danish parliament has voted against the interests of lesbians and gay men.

After the election to the parliament in the spring 1998 some members of parliament tried to amend the law to allow lesbian couples and single women to get assisted insemination in hospitals, but a majority in parliament were still against it.

Greenland and the Faro Islands are independent parts of Denmark, and the local parliament make their own laws or adopt Danish laws. The partnership law is also valid in Greenland, but not in the Faro Islands.

The Other Nordic countries
The legal situation for lesbians and gay men in the other Nordic countries are quite similar to the situation in Denmark.

Norway, Sweden and Iceland do not have any discriminatory measures in their legislation, while Finland still has a prohibition on "promoting" and "encouraging" homosexuality - but the law is in the process of being changed right now.

Finland, Norway, Iceland and Sweden do all have anti-discrimination laws, but the Swedish and the Norwegian do not cover the private labour market and the Swedish law do not cover incitement to hatred.

Norway, Sweden and Iceland have partnership laws similar to the Danish one. The Swedish law includes a clause that means that similar partnerships founded in other countries are automatically recognised in Sweden. The Icelandic law gives the possibility of common custody of children for a registered couple.

The Nordic ministries of justice have agreed that in practice partnerships from one of the countries will be recognised in the other, but as all four laws do have the citizen prerequisite some rather odd situations can occur. E.g. an actual case exists of two Swedish gay men, who have been living together in Norway for 25 years and can not register their partnership either in Norway (because both are non Norwegian citizens) nor in Sweden (because they do not live in Sweden).  In all other aspects Nordic citizens are treated exactly as citizens of the country in question. A common Nordic labour market and totally free movement of people within the Nordic countries are the basis of the Nordic co-operation.

As mentioned above a bill to change the Danish partnership law has been forward in the fall of 1998 so that this problem will be solved, and similar legislation is being prepared in Sweden.

Relations to EU treaties and regulations
One of the basic elements in the foundation of The European Union is the free movement of people, and according to the Union treaties discrimination based on nationality is prohibited (where the treaty is applicable).

The citizen clause in the Nordic partnership laws is in contradiction with these fundamental provisions in the European Union treaties. A gay or lesbian couple from another EU country living in Denmark cannot obtain the same rights as if one of the partners was Danish - and that is discrimination based on nationality.

The other way around, a Danish registered couple cannot move to another EC member state and obtain the same rights as a married couple - as they can in Denmark. Even though there is a provision of bringing a spouse with you if you as an EC citizen go to another EC country to have a job, your same sex spouse is not in general permitted to stay in the country. Only one positive exception to this is known: A Danish lesbian who got a job in the Netherlands, was allowed to bring her partner.

When formally registered spouses cannot be brought, then of course other same sex partners can either. This is a main obstacle for the free movement of gay people.

The above mentioned possible change of the law on registered partnership so that the partnership will be open to all resident in Denmark will only solve the problem partly, as the partnership will still not be recognised outside Denmark - or other countries having similar legislation.

However, with the introduction of a Dutch partnership law - and the inclusion of an anti-discrimination clause in the treaty of Amsterdam - the avenue to mutual recognition of gay/lesbian marriage within the EU is opening up.

The concept of family
One of the basic elements of society in all EU member states is the family. And the family is traditionally considered as man, woman and children. Any other grouping of people living together are some places seen as a threat against the concept of family and against society itself.

If full equality shall be obtained and homosexuals be respected and considered as citizens of the society, the concept of family must be challenged. Efforts must be taken to establish a new definition of the family, the homosexual family consisting of man and man or woman and woman with or without children must be introduced.

It is essential that we not only obtain legal recognition of the homosexual family, but also a social and cultural recognition of gay/lesbian families. This is a huge task, and it will demand much work, openness and visibility.

Bibliography
w	Homosexuality: A European Community Issue (Ed. Kees Waldijk and Andrew Clapham) , Dordrecht, Boston, London 1993.
w	Registreret Partnerskab, Samliv og Velsignelse, Århus 1997 - also available on the Internet at http://www.folkekirken.dk/udvalg/partnerskab - including summaries in other languages.
w	Third Pink Book, New York 1993.
w	Homoseksuelle og Arveafgift, Betænkning nr. 1065, Copenhagen 1986
w	Homosexuelles Vilkår, Betænkning nr. 1127, Copenhagen 1988
w	Wilhelm von Rosen: Månens Kulør, Copenhagen 1993.
w	EuroLetter, http://inet.uni-c.dk/~steff/eurolet.htm
w	Linda Nielsen: Family Rights and the Registered Partnership in Denmark, International Journal of Law and Family 4, 1990.