Somehow I do not see any elation concerning the latter clarifications of the High Specialized Court of Ukraine on Civil and Criminal Cases.
Briefly about the history of the issue. On May 7th this highly respected establishment sent out to the courts of appeal (or rather to its heads) a document, the essence of which interpreted as follows: when considering cases concerning employment relationships, in particular – discrimination at the workplace – sexual orientation should be included in the list of characteristics based on which this same discrimination is prohibited.
Hurrah, dear friends! Generally speaking it is all we could depend upon. All the fuss over this non-discrimination of LGBT had started exactly when Ukraine started to move towards liberalization of visa regime with the EU. One of the requirements from the European side was to ensure that Ukraine guaranteed non-discriminative legislation according to a number of features, including sexual orientation.
It was initially planned that Ukraine should take the same path as Moldova, which solved a similar puzzle by the adoption of a complex antidiscrimination legislation mentioning sexual orientation in the Labour Code. The same applies to Georgia – with some variation on a theme, – however the same principle was observed: they adopted a new law.
Meanwhile, Ukraine has decided to wriggle out by appealing to its Constitution, in which the prohibition of discrimination on grounds of sexual orientation supposedly has been already mentioned. In the paragraph "according to other features". And then the High Specialized Court shared a document, wherein referred to labor issues.
All of it is not as good as we would like to. Because it is incorrect to be only limited by the sphere of employment – it would be not so bad to have an effective anti-discrimination law instead. But in the current situation – and we have already written about it – it would be difficult and dangerous to demand from the Verhkovna Rada of Ukraine adopting regulations, which pro-Russian provocateurs would immediately proclaim as "the law legalizing gay people". Naturally, it not an option – every time look back at Russia and listen to what it and its henchmen are singing along. But, in general, it has been managed to avoid unnecessary special effects. And thanks to God!!
In fact, the requirement of the European side has been fulfilled. Ukrainian Justice has officially confirmed the fact that it holds a sufficient legal framework for preventing any discrimination based on sexual orientation at the workplace. To receive the official interpretation and precedents for other areas – is a matter of technique.
Therefore now Ukrainian LGBT movement needs to make all the efforts to guarantee that this document won't remain a dead letter. The laws should work. And to make them real lawsuits related to actual cases of discrimination are needed.
There is no guarantee that before the official explanation of the High Specialized Court the Ukrainian judicial system refused to recognize inadmissibility of discrimination on grounds of sexual orientation. There's always been another problem: very few representatives of the LGBT community ready to fight for their rights in a court. Unlike in the same Russian, where the community actively appeals to the courts, during its independence there have been only a few cases in Ukraine in which at least at any side figured discrimination of homosexuals.
It is highly doubtful that the situation will significantly change after the 7th of May – the date of fateful clarification by High Specialized Court. The community has extremely low level of trust in the judicial system, the state, and even the LGBT movement itself. Providing that Ukrainian gays and lesbians today can even be called a community. Well, they will not go to the court! They will endure, or try to solve problems on their own.
That's why LGBT movement should focus on conduction of explanatory work, raising the political consciousness of Ukrainian homosexuals and on creating the conditions for a painless passage of all circles of hell of our pre-trial and judicial systems. On the stage of preparing strategically important lawsuits and obtaining decisions on them with the subsequent control over its implementation.
Legislative support of non-discrimination – is an achievement, undoubtedly the important one, but it is not a goal in itself. It is an additional tool to fight for LGBT rights, and the task for Ukrainian gay movement to use this tool most effectively.
It's just the beginning!
Truly Yours,
Larson Sobieski
Photo by Сorbisimages.com
Автор: Gay Alliance Ukraine
