Dipartimento Diritti di cittadinanza
Ufficio Nuovi Diritti
BUILDING OUR EUROPEAN COMMUNITY
XXI European Conference of ILGA
Pisa, 20-24th October 1999
A shadow on the wall
or a stone in the road?
The treaty of Amsterdam is an important milestone in a civil way of living: it creates opportunities for actions by the EU in the field of human rights, social policies, against social and legal discriminations.
In particular Article 13 for the first time in the treaties covers discriminations on the ground of sexual orientation, for this reason gay, lesbian and transgender people have a new range of opportunities and it is clear that the Community has the legal competence to adopt legislation and policies against gay, lesbian and transsexual discriminations.
The implications of visibility in today’s Europe for gay men, lesbians or trans-persons who no longer wish to hide, differ considerably according to the social and environmental context in which one decides to come out. Each individual who decides to live his or her condition in the light of day is a story unto itself, but there is one aspect that is common to all, namely, the political relevance of this decision, which increases when, besides being the expression of the maturity of the person involved, it becomes a concrete and formidable sign of solidarity to those who, in their home countries, are obliged to suffer derision and prejudice and, at times, even to live with the nightmare of having to undergo criminal proceedings.
A political issue
How can social and cultural change worldwide prescind from the responsibility of all those engaged in bringing about the change? The concrete steps every gay man, lesbian or trans-person in Europe must take are to decide whether to come out, to make others participate in their homosexual condition, to live their gender transition openly. It is impossible, in fact, to change the common perception of homosexuality and transsexuality if, at the end of the day, gay men, lesbians and trans-persons are uncapable of giving themselves an identity, of defining themselves as individuals and not just as an abstraction represented (how effectively and to which point is an open matter) by the militant associations and their members.
The personal right to exist
Which rights are being violated if nobody is prepared to talks about themselves? There are many violated rights, and many people living in a state of personal subjection and constraint, which is unbearable and, at times, unsurmountable. The most urgent matter in Europe, even more than introducing new legal measures, is to promote a process of self-awareness, enabling people to live their sexual condition freely and to assert their gender identity without external conditioning; this is a battle for the entire civilized world, but above all for the homosexual and transgender movements.
How to act
What does it mean to come out? What does it mean to make one’s condition visible in the environment in which one lives? The process of coming out action is complex and must inevitably begin with self-acceptance and the capacity to distinguish between the actual limitations to one’s personal freedom from the outside and any self-imposed limitations. The first task of all those who wish to actively improve the conditions of life of gay men, lesbians and trans-persons, and not only them, is to meditate on the subjective, civil and social importance of visibility. The key question is "how can gay men, lesbians and trans-persons recognise to themselves the right to choose freely where and how to exist?" The reply is always "by freeing oneself to free others: to change from just a shadow on the wall to a stone in the road".
To discriminate means to adopt any difference as a pretext to feel superior to or threatened by another person and so to distance onself from that person, and even to deny that person the possibility of existing. Discrimination springs from an irrational feeling of fear, as well as from a too rational one of self-preservation, for anything that contrasts with tranquilizing social stereotypes or arrangements. Society today is besieged by a violent wave of new conformism, whose aim it is to change individual behaviour in order to build a collective one, with the powerful complicity of the media.
In the workplace, existing EU laws forbid discrimination in employment on two grounds: gender and nationality, but the economic trends, which in Europe are producing few new jobs, in the face of a large demand, enable employers to heavily discriminate. Candidates to a job are selected by eliminating those who do not conform to a specific ideal model, and even among those who already have a job is spreading the conviction that that model is the only acceptable one, resulting in a potentially hostile climate amongst colleagues. As we know the most important points are: harassments, recognition of same-sex partnerhips, exceptions to the discrimination ban.
This being the state of affairs, the concrete risk for homosexuals, who are often already engaged in a hard daily struggle with life, is that they tend to do all they can to hide themselves, imposing on themselves a life of moral and psychological suffering, at times with mortal consequences, while for those who cannot hide their diversity, such as transsexuals, the clash with the rest of society becomes inevitable, resulting in their exclusion from the so-called "civil" society.
The trade unions
Discrimination in the workplace against homosexuals and trans-persons is hardly ever manifest, since there are specific laws protecting workers against discrimination. However, discrimination based on sexual orientation or gender identity, far from making reference to exclusively private facts is only the tip of the iceberg, concealing an infinite range of discrimination opportunities; therefore, it assumes a clear general and collective strategic value, and becomes a specific commitment by the unions. To assert the right of gay men, lesbians and trans-persons to be themselves, and to be accepted as such, means to assert the right of everybody to choose one’s way of life and to improve the quality of one’s life. In the field of employment, the competence of the EU is well established and the debate concerns not whether, but how the EU will prohibit workplace discrimination.
The close cooperation which is developing between the ETUC and the Platform of European Social NGOs will be particularly significant in this respect.
In Europe there is a broad and varied range of associations. There are some problems in understanding precisely how many initiatives are related to the protection of gay men, lesbians and trans-persons in the workplace, since there is no information network or data collection centre. Many organizations provide advisory and guidance services, often dealing with employment and labour issues, ranging from how to keep one’s job to how to protect one’s individual rights. These associations, especially in the larger cities, often also attempt to set up formal or informal support networks for job-seekers and give advice for the implementation of positive actions; these organizations have been recognized as representative interlocutors in the case of a number of administrative and political initiatives aimed to protect the rights and interests of homosexuals and trans-persons.
Which positive actions?
Which sectors require a greater effort to improve working conditions for gay men, lesbians and trans-persons in Europe?
Several positive actions are outlined in the following paragraphs:
The principal and most obvious peculiarity of the transsexual condition is visibility; transsexualism, in fact, is a condition that cannot help becoming public. The "aesthetic revolution" that the transsexual choice inevitably engenders almost often has an immediate effect on all personal relationships: one’s affections, the family, the workplace. The specific nature of this condition is such that one cannot escape coming face to face with the problem of discrimination.
Discrimination in the workplace
The age of discretion varies from individual to individual and depends on variables such as one’s personal character, culture, family, social background. Probably, those who begin the gender transition at 20 are still looking for a job, while those who make the decision later on (at 30, 40 or even 50) probably already work. The two situations have both common and distinct characteristics.
Those who are undergoing a gender transition, in most of Europe and, indeed, worldwide, are confined to a sort of legal "limbo". The transsexual condition as such is simply not contemplated, except after the gender reassignment has been legally acknowledged, and this is one of the most important issues for which a solution must be found. Obviously, it can be extremely difficult to find a job until this state of uncertainty under the law persists, or until the new gender is specifically assigned.
National legislation modelled on the case of Germany, which also provides for an intermediate solution, the so-called "lesser solution" (i.e. the possibility to change one’s name immediately upon commencing the hormone therapy), would certainly help transsexual job-seekers, who are in the process of finding a certain balance through the hormone therapy, the changes to their personal appearance, etc. The possibility of not having to disclose to one’s potential employer one’s transsexual condition, or the fact that this condition is contemplated and protected by the law, preferably in combination with general anti-discrimination legislation, would undoubtedly constitute a formidable weapon against the existing ostracism.
More favourable legislation cannot be considered per se a universal remedy against discrimination or hostile attitudes against trans-persons; however, it would undoubtedly be an enormous step forward, enabling people to better defend their workplace rights by introducing legal remedies and, in this case, new legal provisions would also have favourable social effects, not only for trans-persons, but for society as a whole.
For those with a job
When a person who already has a job decides to make the gender transition the risk of discrimination considerably increases, from the point of view of both human relations in the workplace and keeping one’s job. To disclose to one’s colleagues, or to the management, or to one’s clients, if one is self-employed, a change of such magnitude entails risks that may even go beyond simple marginalisation, they may break a career or even lead to dismissal, even if this is forbidden by the law, or to the loss of most of one’s clients. In cases such as this there are no end of possible outcomes, depending on the job, position, size of the company, and the extent to which one’s job may affect the corporate image (working with the public, for example).
Moreover, gender transition may also entail periods of lower performance and increased absence from work, due to the medical exams, surgery and the side-effects of the hormone therapy. Obviously, if one adds to the pre-existent difficulties with one’s family or friends, the hostility of one’s colleagues and the ostracism of one’s superiors, the anxiety due to the lowering of one’s performance at work and the awareness of maybe not earning enough to modify one’s primary and secondary sexual characters, at a certain point trans-persons might feel overcome and self-marginalise themselves, throwing in the towel and deciding to resign or stop working.
How to reduce the risk of discrimination
Until the transsexual condition becomes widely known, going beyond the vulgar and distorted presentation by the media and public opinion as it is now, it will be difficult to achieve effective emancipation, and until specific legislation is passed introducing guarantees it will be equally difficult to reduce marginalisation at work and in the society. Therefore, key importance is assumed by correct information and the reviewing of the legislation addressing transexualism, per se and in relation with the workplace. The new legislation should provide for the following:
GOOD PRACTISES AND THE PROTECTION OF GAY, LESBIAN AND TRANSSEXUAL EMPLOYEES
The fragmented and diversified legislation in the European Union member countries shows how, in many member states, the protection of the workplace rights of gay men, lesbians and trans-persons is a complex practical issue. From this point of view, the gay, lesbian, transsexual and transgender associations, trade unions and some political parties have become the only instruments for supporting the workplace rights of these persons.
Trade union protection
In several European Union member states the trade unions have been addressing the issue of the workplace rights of gay men, lesbians and trans-persons for a number of years now, with different levels of commitment and initiatives:
HIV – AIDS
To speak of the HIV virus in connection with gays, lesbians and transexuals is a delicate matter. The HIV virus, in fact, must never be associated with so-called sexual "diversity". It may affect anybody, the only prerequisite is coming into contact with infected blood and this may happen in many different ways. The real problem is knowledge and prevention. Unfortunately, people frequently associate diversity and transgression with guilt, and guilt must somehow be punished with disease and death. This is true not only of the more reactionary and integral groups within Christianity, unfortunately it is a deeply rooted conviction in many people, even among those with a more progressive outlook. It is a prejudice that must decidedly be removed: gay men, lesbians, trans-persons do not have a necessary and exclusive relationship with HIV, certainly no more than any other human being has.
This battle is closely connected to that for the defense of the workplace rights of HIV-positive persons, whether gay or not, of people affected by AIDS or of asyntomatic carriers of the virus who, precisely because they are considered guilty or deserving of expiation, are denied the basic rights that are recognized to other persons.
It is in the interest of the entire civilized world to free pleasure from guilt, to re-establish the truth on this issue and to re-iterate that HIV is not necessarily equal to death and, lastly, that when somebody dies young because of a HIV-related disease (today, thanks to new drugs, this is not necessarily the case), whether gay or not, this death, which certainly produces bereavement, is unrelated to guilt and the terrible loss it produces can in no way be spoken of in terms of expiation, reparation, or the price paid for wrongdoing.
In this case also, the social and legal dimension of the matter intertwines with the cultural and psychological one, therefore, it is necessary to fight also for HIV+ persons, people affected by AIDS, or the asyntomatic carriers of the virus, whether or not they are gay.
Discrimination against HIV+ persons
The foremost problem is to guarantee equal opportunities in the workplace for HIV+ persons and, in this case also, equal opportunities means active struggle against discrimination. At the candidate selection interviews for a job persons whose HIV+ situation is known loose marks compared to others. In the case of employees, if the employer comes to know of the situation, the worker may be put under pressure to resign, with actions ranging from veiled threats, demotion, or the offer of sums of money. This may lead to situations where the stress of discrimination is added to the already enormous stress related to the infection.
These attitudes are widespread, more so than one may think, and the absence of publicity is due to the fact that the people concerned often prefer not to disclose their situation, even to the point of refusing to benefit from the existing legal remedies, and the unions rarely have the will, capacity and culture necessary to fully support the employees who decide to go through with the matter. Our task is to build up this will, capacity and culture.
In Italy, for example, the law forbids employers from surrepetitiously carrying out HIV tests or from imposing them on the employees’ against their will, and it also forbids any unfavourable treatment based on the employees’ serological condition. It is on these provisions that effective actions contrasting discrimination may be based, in Italy and elsewhere.
New therapies and new job opportunities
The new available therapies have created a new situation, wherein many people who have been affected by a serious disease wish to and are capable of resuming their previous job, or starting to work, in the case of young patients, for example.
With regard to the protection of the workplace rights of these persons, the following must be taken into account, compared with the past:
These requirements are perfectly compatible with most jobs, unless discriminatory attitudes intervene, mostly related to the lack of adequate information. As always, it is a case of defeating ignorance, the primary cause of racism.
Maria Gigliola Toniollo, CGIL Nazionale – Ufficio Nuovi Diritti
Enzo Peretta, CGIL Liguria – Ufficio Nuovi Diritti
Giuseppe Bortone, CGIL Nazionale – Dipartimento Diritti di Cittadinanza
Mirella Izzo, Arcitrans Crisalide
Piero Pirotto, Informagay
Circolo di Cultura Omosessuale Mario Mieli
MIT - Movimento Identità di Genere