Recognition of same-sex unions in Estonia

Estonia has recognised same-sex unions since January 1, 2016 by allowing same-sex couples to sign a cohabitation agreement (Estonian: kooseluleping), the first ex-Soviet state to do so.[1]

Marriage
LGBT portal

In addition, in December 2016, a same-sex marriage performed in Sweden was recognised by a court and entered into the population register.[2][3][4][5][6] In September 2018, following a ruling by the European Court of Justice, an Estonian court ruled that same-sex couples must be treated the same way as opposite-sex couples in the issuance of residency permits,[7] confirmed by the Supreme Court in June 2019.

Registered partnerships
Laws regarding same-sex partnerships in Europe¹
  Marriage
  Civil union
  Limited domestic recognition (cohabitation)
  Limited foreign recognition (residency rights)
  Unrecognized
  Constitution limits marriage to opposite-sex couples
¹ May include recent laws or court decisions that have not yet entered into effect.

History

In December 2005, the launch of a new family law bill by the Estonian Ministry of Justice, explicitly defining marriage to be a union of a man and a woman, initiated a public debate on the issue of recognition of same-sex unions. The public debate was called by the Ministry of Social Affairs, which expressed reservations about the draft law.

The public debate attracted a significant response from LGBT rights groups, who opposed the family law bill and urged the Estonian Government not to discriminate between same-sex and opposite-sex couples in marriage, stating that, "We call on the government to drop a clause in the draft law on the family, which does not allow the registration of same-sex marriages or partnerships". On January 4, 2006, five Estonian NGOs supporting LGBT rights issued a press release calling for a new partnership law to give same-sex couples equal rights with opposite-sex couples.[8]

On the other hand, a number of conservative politicians claimed that Estonia was not yet ready for same-sex marriage, and that there was no need to create a separate law on same-sex unions since existing laws already implied the protection of some of these unions, despite not mentioning same-sex unions explicitly. Väino Linde, the chief of the Constitution Commission of the Riigikogu (Estonian Parliament), stated that he was "glad to see the conservative views in the Parliament and in the Commission of Constitution".[9]

As of 2005, the Social Democratic Party was the only political party to publicly affirm its support for same-sex marriage. The Centre Party and the Reform Party said that they would tolerate such a law. Various right-wing parties, particularly the Pro Patria and Res Publica Union, stated their opposition to same-sex marriage.[9]

Registered Partnership Act

In July 2008, the Ministry of Justice announced that it was drafting a law on registered partnerships for same-sex couples. The law, initially expected to come into force in 2009, was intended to provide a number of rights for same-sex couples, such as inheritance and shared property ownership. The law had the support of most parties in the Riigikogu.[10][11]

The Ministry of Justice studied proposals for the registration of unmarried couples, including same-sex couples. A comprehensive report was released in July 2009 examining three options: the recognition of unregistered cohabitation; the creation of a partnership registry; and the extension of marriage to same-sex couples. It left the decision over which model to implement to the Riigikogu and other "stakeholders".[12][13] On July 1, 2010, a new family law was passed, defining marriage as between a man and a woman and declaring unions between members of the same sex "null and void". Prime Minister Andrus Ansip was quoted as saying, "I do not believe that Estonia, Latvia and Lithuania will soon accept same-sex marriage in the eyes of the law".[14]

On May 25, 2011, Chancellor of Justice Indrek Teder requested that the Ministry of Justice introduce a civil partnership law.[15] He ruled that the non-recognition of same-sex relationships was contrary to the Constitution of Estonia. Thereafter, partnership recognition again became an active political discussion in Estonia.

The Reform Party and the Social Democratic Party supported introducing a partnership law, against the opposition of the conservative Pro Patria and Res Publica Union. The Centre Party supported a discussion on the issue.[16] The bill was drafted in August 2012 by the Minister of Justice and was under consultation until October 1, 2012.[17][18][19] In March 2014, a parliamentary group began to examine the draft bill.[20] The legislation, entitled the Registered Partnership Act (Estonian: Kooseluseadus), was submitted to Parliament on April 17, 2014.[21][22][23][24] On May 22, the bill was backed by the Rõivas Government.[25] On June 19, 2014, Parliament rejected a motion to kill the bill at its first reading, in a 32-45 vote.[26] The second reading took place on October 8, where a motion to hold a referendum on the bill was defeated in a 35-42 vote and another motion to kill it was defeated in a 41-33 vote.[27] The bill passed its final vote on October 9 in a 40-38 vote. It was signed into law by President Toomas Hendrik Ilves the same day and took effect on January 1, 2016.[28][29]

October 9, 2014 vote in the Estonian Parliament (Riigikogu)
PartyVoted forVoted againstAbstainedAbsent
     Estonian Reform Party
     Estonian Centre Party
     Pro Patria and Res Publica Union -
     Social Democratic Party -
Total40381013

As of 2020, some implementing acts required for the law to enter into force have yet to be passed, requiring the support of a majority of MPs. The conservative Pro Patria and Res Publica Union (IRL), which joined the Rõivas Government after the March 2015 elections, said that these acts should be passed in Parliament rather than by the cabinet, creating a dispute with the Reform Party and the Social Democrats.[30] On November 25, 2015, Parliament rejected a motion to kill the implementing bill at its first reading, in a 41-42 vote.[31] On December 10, the chairman of the Legal Affairs Committee announced that the committee would not finish work on the bill and asked Parliament to begin the second reading before December 17, before it adjourned on January 11. This meant that the Registered Partnership Act would take effect without implementing measures, causing a number of legal loopholes and problems.[32][33] Further readings were scheduled for the end of January 2016.[34]

Because the Riigikogu has yet to adopt the implementation acts, same-sex couples in Estonia have been in legal limbo, and have increasingly turned to the courts in order to have their rights recognised. Numerous partnerships have been performed in Estonia, but these couples were initially not registered in the population registry.[35] In August 2016, a same-sex couple filed a complaint with the Tallinn Administrative Court.[36] On April 10, 2018, the Supreme Court ruled that the law is in effect and should be enforced, despite the lack of the implementing measures.[37]

In January 2017, the Chairman of the Legal Affairs Committee of Parliament, Jaanus Karilaid (Centre Party), said that the implementing acts for the registered partnership law were unlikely to be adopted in the current term of Parliament, as passing these laws "would only result in new confrontations". At the same time, Karilaid suggested that Parliament did not have the numbers to repeal the underlying partnership law.[38] Prime Minister Jüri Ratas echoed his suggestion, saying that the law would not be repealed by neither the current nor the subsequent Riigikogu.[39] One month later, responding to a complaint filed in August 2016 (see above), the Tallinn Administrative Court ordered the Estonian Government to pay monetary damages for failing to adopt the implementing acts. The state later appealed the ruling.[40] In September 2017, President Kersti Kaljulaid criticised the Parliament for failing to accept the implementing acts.[41]

In February 2017, the Tallinn Administrative Court ruled that the Interior Ministry had to correctly register the stepchild adoption of an Estonian same-sex couple, as mandated by the Registered Partnership Act. The Ministry stated that it had no plans to appeal.[42] In January 2018, the Tartu Circuit Court ruled that a lesbian couple in a registered partnership may adopt. The court overturned a lower court's ruling which had rejected the couple's adoption application.[43]

During the public debate about the bill, a number of public figures came out as gay, including choreographer Jüri Nael,[44] actor Risto Kübar,[45] fashion designer Aldo Järvsoo,[46] and singer Lauri Liiv.[47]

Statistics

29 same-sex partnerships had been performed by August 2016.[36] By October 2017, 59 cohabitation agreements had been entered into.[48]

Same-Sex Partnership Bill

In February 2016, several politicians (mostly from the Estonian Free Party) introduced the Same-Sex Partnership Bill, aimed at repealing the Registered Partnership Act and creating a separate law for same-sex couples. Andres Herkel, who spoke on behalf of the Free Party, justified the need for the bill and criticised the partnership act, arguing it had brought legal confusion to include same-sex couples and opposite-sex couples in the same law: "The including of the regulation concerning different-sex couples and same-sex couples in one Act is the basis of very many conceptual confusion." The bill was opposed by the Conservative People's Party, the Reform Party and the Social Democrats, and ultimately failed 14-55 in Parliament.[49]

Bill to Repeal the Registered Partnership Act

In October 2017, the Riigikogu voted against a bill[lower-alpha 1] which sought to repeal the Registered Partnership Act.[50] The repeal bill, supported by the Conservative People's Party and the Pro Patria and Res Publica Union, was rejected by a vote of 19-47 at the first reading on 17 October. The Social Democrats, the Reform Party and the two independents opposed the bill, arguing it would "take rights away". The Centre Party was split with some voting against the bill and others abstaining, whilst the Free Party mostly abstained.[51] Lawmakers supporting the bill claimed that the Registered Partnership Act had brought division within Estonian society.

17 October 2017 vote in the Riigikogu[52]
PartyVoted forVoted againstAbstainedAbsent
     Estonian Reform Party
 G  Estonian Centre Party -
 G  Social Democratic Party - - -
 G  Pro Patria and Res Publica Union -
     Estonian Free Party -
     Conservative People's Party of Estonia - - -
     Independent - - -
Total19472015
a. Both MPs were formerly members of the Pro Patria and Res Publica Union.

Immigration and residency rights

In June 2017, the Estonian Supreme Court ruled that same-sex couples have a right to the protection of family life. Clarifying the courts' jurisdiction in the matter of applying legal protection in residence permit disputes, the court ruled that Estonian law does not forbid issuing a residence permit to same-sex spouses.[53]

In November 2017, the Tallinn Circuit Court ruled that an American woman, who was in a same-sex relationship with an Estonian woman, could not be issued a residency permit. The couple appealed to the Supreme Court,[54] which dismissed their case in April 2018.[55] The couple then entered into a cohabitation agreement, as the Supreme Court had ruled that same month that the partnership law was in effect. This enabled the American partner to reside in Estonia.[56] Following a ruling by the European Court of Justice in June 2018 relating to the rights of same-sex couples in the European Union, an Estonian court ruled that same-sex couples must be treated the same way as opposite-sex couples in the issuance of residency permits.[7][57]

On 21 June 2019, the Supreme Court of Estonia ruled in two cases that the refusal to grant a residence permit to a foreign same-sex partner of an Estonian citizen was unconstitutional. The court ruled that the section preventing the granting of temporary residence permits to same-sex partners registered in Estonia was unconstitutional and invalid in respect of the Aliens Act (Estonian: Välismaalaste seadus). In accordance with the principles of human dignity and equal treatment guaranteed by the Constitution of Estonia, the Supreme Court found that family law also protected the right of people of the same sex to live in Estonia as a family. As a result of the ruling, registered partners from abroad are now entitled to apply for residence permits.[58][59][60]

Same-sex marriage

A same-sex marriage was recognised by a court in December 2016.[61] The couple, two men who had originally married in Sweden but now live in Estonia, had their marriage officially registered in late January 2017.[62][2] Initially, a court in Harju County refused to register their marriage, but the couple appealed the decision. In December, the Tallinn Circuit Court ruled that the marriage must be entered into the Estonian population register.[2] Much uncertainty followed the ruling, concerning whether the ruling applied universally to all couples or only to this specific case. According to several Estonian jurists and lawyers, whether a same-sex marriage will be recognized must be assessed on a case-by-case basis.[3] Others argue that the Private International Law Act (Estonian: Rahvusvahelise eraõiguse seadus), the law which applies when the validity of foreign marriages needs to be assessed, does not explicitly prohibit the recognition of same-sex marriages.[6][63]

In March 2017, Martin Helme of the Conservative People's Party, speaking in the Riigikogu, threatened the judges who made the December 2016 ruling, saying he wanted their "heads to roll". Many criticised his comments, including President Kersti Kaljulaid, Chief Justice Priit Pikamäe and Speaker of Parliament Eiki Nestor.[64]

In November 2017, Archbishop Urmas Viilma of the Estonian Evangelical Lutheran Church argued that the Estonian Constitution should define marriage as being between "a man and a woman". This proposal is supported by the 2019 campaign platforms of both the Conservative People's Party,[65] and Isamaa.[66] Speaker of Parliament Eiki Nestor rejected his call, saying "that not even the Bible made such a specification, and neither should the Constitution".[67]

Public opinion

A poll conducted in June 2009 indicated that 32% of Estonians believed that same-sex couples should have the same legal rights as opposite-sex couples. Support was 40% among young people, compared to 6% among older people.[68]

A poll conducted in September 2012 found that 34% of Estonians supported same-sex marriage and 46% supported registered partnerships (with 60% and 45% opposed, respectively). The poll found an ethnic divide, with 51% of ethnic Estonians supporting registered partnerships, compared to 21% of ethnic Russians.[69]

A similar poll conducted in 2014 during the parliamentary debate on registered partnerships found that support had dropped significantly, with 29% of respondents supporting same-sex marriage and 40% supporting registered partnerships; opposition had increased to 64% and 54%, respectively.[70]

The 2015 Eurobarometer survey showed that 44% of Estonians supported gay, lesbian and bisexual people having the same equal rights as heterosexuals, while 45% were opposed. 40% of Estonians agreed that there was nothing wrong with homosexual relationships and 49% disagreed, while 31% of Estonians supported same-sex marriage and 58% were against.[71]

A poll conducted between March and April 2017 found that, while support for same-sex registered partnership legislation was almost unchanged in three years, support for same-sex marriage had increased to 39% with 52% against (compared to 60% against in 2012 and 64% against in 2014).[72][73][74] It also found that acceptance of homosexuality had increased from 34% in 2012 to 41% in 2017, with 52% against. At the same time, support for joint adoption rights remained unchanged, with 66% opposed.[75]

Support for cohabitation agreements is strongest among young people (over 70% according to a 2017 survey) and Estonian speakers (56%).[48]

The 2019 Eurobarometer found that 41% of Estonians thought same-sex marriage should be allowed throughout Europe, 51% were against.[76]

See also

Notes
  1. Entitled the Bill to Repeal the Registered Partnership Act (Estonian: Kooseluseaduse kehtetuks tunnistamise seaduse eelnõu)

References
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  3. Aili Kala. "11 - CHAPTER The situation of LGBT persons". Human Rights Centre.
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  41. President chides MPs for shunning Partnership Act's implementing provisions
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  45. Ei ebanormaalsusele ehk kuidas Varro Vooglaid mind tappa tahab
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  51. Committee to send registered partnership repeal bill to first reading
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