Sunday, 18 March 2012

Georgian Legislation on LGBT Issues - “Regional Network Against Homophobia” book chapter

As of now, Georgia is clearly the most advanced country in the South Caucasus in terms of legislative provisions on LGBT issues. (consider also the latest developments: Parliament of Georgia to adopt anti-discrimination amendment in the Criminal Code and Georgia is going to take the hatred towards LGBT into the scope of crime)

Ahead of the 2nd Regional Network Against Homophobia in Ankara, “Regional Network Against Homophobia” book with a separate chapter on Georgia has been published.

Below is Georgian Legislation on LGBT Issues chapter, via Kaos GL.

By Giorgi Gotsiridze
Georgian Young Lawyer’s Association
Tamta Melashvili
Diversity Research and Community Activism Association

Constitutional Guarantees
* Article 14 of Georgian Constitution prohibits discrimination on the basis of several grounds.
* The sexual orientation is not directly mentioned in the article. Unlike European convention on human rights, Georgian constitution gives exhaustive lists of the ground on which discrimination is prohibited.
* Constitutional Court of Georgia is the competent body to interpret Constitution. Court took broad interpretation of Article 14. The Court stated that discrimination was prohibited on the ground which might not be directly mentioned in Article 14.
* The court has not dealt with the case concerning the discrimination on the ground of sexual orientation.

Labor Rights
*Since the amendments were introduced in the Georgian Constitution on 15th of August 2010, Labor rights should have been regulated by the organic law. This is superior law than the ordinary one.
*Ordinary Labor Code introduced in 2006 was replaced by the organic labor code on 16th of December 2011.
* There has not been reflected any significant changes in the new code. The relevant provisions on the prohibition of discrimination have been kept.
* Article 2 of this code prohibits discrimination, inter alia, on the ground of sexual orientation
* Article 38 enables an employer to fire employee without invoking any reason. The motivation of the contract breaking could be the sexual orientation of the employee.
* If the employee fired were not afforded with the reasoning explanation, he or she would be unable to produce any reliable evidence to the court in order to prove that the employer had treated him//her in a discriminatory manner.

* A same-sex partner is entitled to have short-term visit with the person incarcerated. The short-term visit lasts from 1 to 2 hours. The meeting should be taken place by the visual control of the prison administration.
* While the draft amendments in the prison code were being discussed by Georgian parliament, the right to long term visits was declined for same-sex partner due to the plain homophobic approach.
* Long-term visit gives possibility for the prisoner to live in the separated compartment of the prison facility with his or her spouse for 3 days.

Right to Marriage
* Defining meaning of the marriage, Article 36 of Georgian Constitution does not mention that only opposite-sex couples could get married.
* However Civil Code of Georgia defines marriage as “relationship between a man and a women”.
* Georgian Constitution keeps the issue open whether the prohibition of same-sax marriage is constitutional.
* Georgian legislation does not guarantee for same-sex couples to enter into the registered partnership relationship.

Parental Rights
* A single member of the LGBT community is entitled to adopt a child
* A single women, including lesbians, can use artificial insemination and be recognized as a parent of the child given a birth through the artificial insemination.
* Couples, not being necessary to be the spouses, are entitled to use extracorporeal fertilization in order to have their own children.

Prohibition on Blood Donation
* Order of the Minister for Labor, Social and Health Protection prohibits risk groups of HIV/AIDS from being a blood donor.
* Homosexuals are directly listed as the risk groups of HIV/AIDS. LGBT people are clearly stigmatized as homosexuality in itself has been exposed to be the risk factor as a cause of HIV/AIDS.

Right to Change Identity
* Transgenders are entitled to change their first names, family names and paternal names after their gender have been reassigned resulting from surgeon intervention.
* However transgenders who have not been reassigned their gender yet are entitled to change only their first names.

Hate Crimes
* Criminal Code of Georgia considers hate crimes as an aggravated circumstances of a particular crime. The racial, religious and ethnic hatred are the motives which are punishable under criminal code of Georgia. Homophobia as a possible motive of particular crime has been excluded from the list of hate crimes.
* A criminal who kills a person because of the victim’s ethnic origin, should be punished from 13 to 17 years of incarceration, while the killing motivated by the victim’s sexual orientation should be punished only from 7 to 14 years of incarceration.

Hate Speech
* There is no criminalization of hate speech in Georgian Penal Code; however, it is regulated by the law on broadcasting. Under the Article 56.3, any television or radio station should avoid broadcasting programs that stir up hatred, discrimination or the offensive content to any person or group on the basis sexual orientation.
* The complaints on the alleged homophobic programs should be addressed by the internal review mechanism of the broadcasting company concerned.
* The courts as well as National Communication Commission are prohibited from considering complaints on alleged homophobic sentiments in media.