Al Jazeera (among others) is reporting on a Swiss referendum to amend laws banning racist or religious public discrimination or “incitement to hatred” to include incitement to hatred on the basis of sexual orientation. Switzerland is considerably backwards on issues of sexual orientation and struggles with how to address gender in public policy just as significantly (though in different ways) as, say, Italy and other neighbors. There is no general anti-discrimination law in Switzerland and the relationship between Canton governments and the federal government is not as independent as one will find in Canada’s provinces or the states of the USA (thought don’t ask me for more than that general characterization – Swiss law is far beyond me), which means that few cantons have strong anti-discrimination protections. Geneva enacted some, but only as recently as 2017.
This doesn’t mean that Swiss culture is more hostile to QTIs than other places in Europe. Rather, they have a constitutional structure that more generally protects against legal discrimination and laws against private sector discrimination are less used than in nearby countries and less reliant on specifying in statute particular classifications as off-limits in decisions regarding employment, housing, public accommodations, etc. General legal principles rather than specific protections have been thought to be enough.
Laws providing a very strong protection of freedom of association, for example, have been held out by legal scholars in Switzerland as sufficient to ban discrimination based on queer relationships. Yet these provisions are rarely actually used, and at least some reporting says that they are never or almost never used as the basis for a suit seeking remedy for discrimination based on sexual orientation. The provisions against public discrimination are intended to remedy this recent situation in which rights of association protect queer people in theory but not practice.
Switzerland, it seems, has been coasting on inertia. Actual queer fucking has been continuously legal in Switzerland since the 1940s while statutes making queer sex a felony in the US weren’t overturned until Lawrence v. Texas in 2003. Other locations in Europe still criminalize queer sex. Distinctions like this allowed Switzerland to believe it was ahead of its peers and not in need of legislation addressing sexual orientation (much) in public policy. But as other jurisdictions in other nations have surpassed Switzerland over the past two decades in terms of guarantees of personal freedom in the areas of sex and relationships, the Swiss have come to believe that action is necessary.
Believe it or not, that does not include passing legislation permitting equal access to state-sanctioned marriage, but as of today it includes the amendment I referenced in the first paragraph. It has long been illegal in Switzerland to engage in “incitement to public hatred” on the basis of race of religion. These laws are designed to prevent what is sometimes labeled “stochastic terrorism” – non-violent persons encouraging others to perform violence without entering into any specific conspiracy. If one speaks sufficiently hatefully about a group to enough people over time, sooner or later words will reach someone who finds in them a justification to commit violence. This statistical certainty makes hate speech literally dangerous. In the United States it is still protected constitutionally, but the USA is an outlier on this issue and most democracies in Europe have some form of law against incitement to hatred, as do Canada, New Zealand, and South Africa.
For these countries, a decision has already been made about the extent to which speech is protected by the constitution, but even if the constitution does not protect such hate speech, it is still not against the law unless a specific statute bans it. That’s what this most recent referendum did. It took the existing statute and simply expanded the banned bases for incitement to hatred, adding sexual orientation to race and religion. In other words, the types of speech banned are not expanded, but the targets protected are expanded.
As in other laws of this type, straight people are protected equally against being singled out for being heterosexual as queer folk are for being queer. Nonetheless, since straight people have no idea what it’s like to be targeted for being straight, they tend to undervalue this protection and overvalue the freedom to denigrate all the big scary queerbos in their midst. Fortunately many straight people are overcoming this tendency and the referendum passed with 60.5% approval. But this referendum was only necessary because of that tendency.
In 2018 this amendment was originally passed by the Swiss parliament. The largest political party in Switzerland, the SVP, is a center-right to not-quite-far-right party. With the number of parties in a parliamentary system this doesn’t mean that they have a majority (far from it), but their plurality status gives them a large amount of power. Unable to block passage of the bill entirely, they instead forced it into limbo until it could be ratified by popular referendum. That happened today.
As you may imagine, the SVP were not pleased: SVP MP Eric Bertinat gave the quote of the day to Agence France-Presse when he said that the amendment to the incitement to hatred law was “part of an LGBT plan to slowly move towards same-sex marriage and IVF” for gay couples. (In countries where health care is a right and straight couples’ health benefits include assisted reproduction, many right wingers protest queer folk accessing the same benefits since they are not infertile, just perverted.) Other right-wingers were also unhappy, though not as unintentionally funny. Marc Frueh, and MP from a minor party of Christian conservatives known as the EDU stuck with characterizing it as a pro-censorship amendment.
The anti-discrimination provisions in the law are still somewhat weaker (if I understand them correctly) than similar provisions in US law. For instance, it may not protect against employment, housing, and lending discrimination unless the discrimination happens in a public way that tends to humiliate or denigrate the target. In this way it is similar to certain provisions of Canadian provincial Human Rights Codes that provide remedy for denial of human dignity that operates somewhat differently to statutory provisions that simply ban discrimination on specific bases. They also do not protect against discrimination or incitement to hatred on the basis of sex, gender, gender identity, or gender expression.
Still, this is a pretty big step for Switzerland. Who knows. Maybe Bertinat is correct and somewhere, someone is secretly plotting to someday legalize queer marriages in Switzerland. Quelle horreur.