Less sexual discrimination, but more censorship in Switzerland

Spectators observing a Council of States session in 2005

In a national referendum hold on February 9th, 2020 voters in Switzerland backed a proposal to make discrimination based on sexual orientation and gender identity illegal. A decision taken by the Legal Affairs Committee of the Council of States, which represents the Swiss Confederation´s 26 cantons, initiated the process on 7 November 7th 2018.

Switzerland might enjoy a rather conservative reputation, but same-sex sexual acts between adults have been legal since 1942. The age of consent for heterosexual and homosexual sex was lowered to 16 in 1992. Same-sex relationships were legally recognized in 2007.

Interestingly, the initiative to hold such a public opinion poll came from the conservative camp. The Swiss People’s Party (Schweizer Volkspartei, SVP) and the Federal Democratic Union of Switzerland (Eidgenössisch- Demokratische Union, EDU) were both opposed to the tightening of the present legislation. Its leaders basically knew that from their perspective they would fail and wanted to assess the people’s mood anyway.

The result was clearer than expected: 63.1% in favor to 36.9% against widening the existing legislation against discrimination or incitement to hatred on racial, ethnic or religious grounds to include sexual orientation.

Publicly denigrating or discriminating against someone for being gay or inciting hatred against that person in text, speech, images or gestures, will be banned. Defenders of the extension saw “a modernization of rich, but still backward Switzerland”, and argue that freedom of expression in a democracy can only go as far as the individual right to human dignity is protected.

Moreover, according to them nobody would be prosecuted for religious beliefs. However, will traditional Swiss still be able to defend marriage between man and woman only without being harassed? In 2012, a Colorado baker refused to make a wedding cake for a gay couple because of his religious beliefs. The two men successfully complained to the state’s Civil Rights Commission.

Their case went all the way to the US Supreme Court, which after six years ruled that his decision back then was protected by the first amendment to the US Constitution. How does one prove that supposed homophobia is rooted in one’s faith and therefore allegedly exempted from prosecution? What if most of the Muslims living in the country reject this new concept? Could they claim Islamophobia for their part if they get into legal trouble?

How many Swiss restaurants, hotels, transport companies, cinemas or swimming pools did actually reject homosexuals during the last decades?

Does anybody believe that criminals who physically attack homosexuals are going to be deterred from doing so by this amendment? The Left has kept watering down the persecution of violent and/or antisocial behavior in all of Western Europe. Will it suddenly get tough again when it comes down to this question?

The Swiss central government stated that it will still be possible to have opinionated debates on same-sex marriage, which from now on clearly is only a question of time. Furthermore, theoretically incitement to hatred needs to reach a certain level of intensity in order to be considered criminal in Switzerland. What will happen in the future if it can be shown that, under the cover of artistic production, someone is in fact engaging in incitement? Three years of imprisonment might await!

Although the new law specifically doesn’t ban gay jokes, experience tells us that the end it matters who tells them. Also, the argument that private comments at home or among friends will not constitute a legal issue isn’t really one. That sounds like reaffirming a basic right and selling it as a big achievement. Should Swiss be happy that they don’t have a Stasi yet?

Local gay rights campaigners were divided over the disputed legislation, with smaller groups pointing out that no special protection is needed. Indeed, as this means creating new privileges for tiny minorities. No wonder that opponents are convinced that the much-trumpeted social progress will lead to censoring free speech, just like in other countries.

As seen around the world, those that preach tolerance the most are those least willing to practice it. Switzerland three months ago finally became a full member of the global community. “People should be allowed to think and say what they like, even if it’s a bit stupid or tasteless.» Since 2020, that’s highly unlikely, if not impossible near the Alps!


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