Switzerland: anti-rights challenge overcome – with rainbow colours
In September 2021, 64 per cent of Swiss voters gave their support to the Marriage for All Law, passed by parliament in December 2020, following years of advocacy and campaigning by the LGBTQI+ movement. The referendum had been called at the behest of a conservative religious group that routinely seeks to take advantage of direct democracy mechanisms to slow down the progress of LGBTQI+ rights in Switzerland – one of the last Western European countries to legalise same-sex marriage. The ‘yes’ campaign ensured that the attempt to mobilise an anti-rights backlash backfired and proved that there is a substantial Swiss majority for LGBTQI+ rights.
On 26 September 2021, 64.1 per cent of Swiss voters said a resounding yes to same-sex marriage. They supported an amendment to the Civil Code to replace the traditional definition of marriage with a gender-neutral one. That day, Switzerland became the 29th country in the world – and one of the last in Western Europe – to legalise same-sex marriage nationwide.
Under the new law, expected to go into effect in July 2022, same-sex couples will be able to get married and will be granted the same institutional and legal rights as heterosexual couples, including simplified naturalisation procedures for foreign partners, joint adoption rights and access to fertility treatments.
SAME-SEX MARRIAGE AROUND THE WORLD
The anti-rights challenge
The 26 September vote was an emphatic victory for the Swiss LGBTQI+ movement and its allies – even though this was not a battle of their choosing.
A law amending the Civil Code to include same-sex marriage was passed by the Swiss Parliament in December 2020. This should have been the final hurdle. But those opposed to the change tried to overturn it. In Switzerland, referendums are a frequent part of decision-making, and people can demand one if they submit a petition with enough signatures. That’s what opponents of same-sex marriage did, hoping to mobilise a public backlash.
The referendum initiative was spearheaded by a fringe ultra-conservative party, the Federal Democratic Union (EDU/UDF), which has a long history of mounting referendums against LGBTQI+ rights.
Back in 1992, the EDU/UDF challenged the decriminalisation of consensual same-sex relations; in 2005, it forced a referendum to try to overturn the registered partnership regime, which granted partnership rights to same-sex couples; in 2016, it tried to impose a definition of marriage as ‘a union between one man and one woman’ in the Constitution of Zürich. As recently as 2020, it forced a referendum to try to overturn a law that banned discrimination based on gender identity or sexual orientation.
As with its previous proposals, its initiative to put same-sex marriage to a popular vote found support among the ranks of the right-wing Swiss People’s Party (SVP) and the centre-right Christian Democratic People’s Party (CVP/PDC).
The road to Marriage for All
The Marriage for All initiative, submitted to the Swiss Parliament by the Green Liberal Party in December 2013, called for a constitutional amendment to legalise same-sex marriage. Civil society launched a petition and gathered signatures in support of the move. In February 2015, the Legal Affairs Committee of the National Council, one of the two chambers of the Swiss parliament, voted to proceed. The Legal Affairs Committee of the Council of States, the other chamber, gave its go-ahead in September 2015.
The National Council’s Legal Affairs Committee was then tasked with drafting a bill within two years, but in May 2017 it requested a two-year extension. Published a year later, the Committee’s report recommended amendments to the Civil Code and the Registration Law to replace the traditional, heterosexual definition of marriage with a gender-neutral one, and the review of naturalisation laws to align with the amendment. It also stated that no changes would be required to laws on adoption, which granted access to married couples without further defining marriage.
The Committee concluded that there was no need to amend the Federal Constitution, as a few simple legal changes to statutory law would suffice. This meant that there would be no need to hold a referendum: the Swiss Constitution mandates referendums only to revise the constitution, join an international organisation or introduce emergency federal legislation lasting more than a year.
In July 2018, the Committee recommended that the federal parliament pass the initiative. Despite objections from LGBTQI+ organisations, it did not include the right of lesbian couples to access reproductive services; the Committee argued that this would create an inequality between gay and lesbian couples, while also making the proposal less palatable to conservative legislators and decreasing its chances of approval. A progressive civil society organisation, Operation Libero, started a campaign to push for a positive parliamentary vote, collecting 30,000 signatures within days.
In February 2019, the Committee put two versions of the same-sex marriage bill up for public consultation: its preferred ‘streamlined’ version ensuring equal adoption and citizenship rights, and the one promoted by LGBTQI+ organisations, also granting lesbian couples access to sperm donor services. The public consultation ran from March to June and showed wide support for same-sex marriage among major political parties, with the exception of the SVP, and also among 22 of the 26 canton governments.
In January 2020, the Federal Council – the seven-member Swiss federal executive – gave its support to the bill, but expressed the view that the fertility issue should be addressed separately later. However, the bill the National Council approved by a 132 to 52 vote in June 2020 contained amendments granting access to fertility treatments for lesbian couples. This cost many CVP/PDC votes, on top of most of SVP votes.
In the meantime, in a referendum held in February 2020, 63.1 per cent of Swiss voters – similar to the share that would go on to back same-sex marriage – supported a ban on hate speech and discrimination on the grounds of sexual orientation, extending the anti-discrimination protections established in the Criminal Code, which had only applied to race, ethnicity and religion.
On 1 December 2020, the Council of States passed the same-sex marriage bill with minor amendments, and also narrowly defeated a motion to deem the law a constitutional matter and therefore trigger a mandatory referendum – an obvious last-minute attempt to send the whole process back to square one and delay it by several years.
Barely a week later, the National Council approved the changes, and a final parliamentary vote took place on 18 December 2020. The Council of States approved the law with 24 votes in favour, 11 against and seven abstentions, while the National Council passed it with 136 votes for, 48 against and nine abstentions. While liberal and progressive parties voted unanimously for the bill in both chambers, centre-right and right-wing parties were divided: most of their legislators voted against, but some supported it.
In December 2020, the Swiss parliament passed a separate bill establishing legal gender recognition procedures based on self-determination, so that a simple declaration at the civil registry office will now suffice for trans and intersex people to change their legal name and gender markers. Unlike the change on same-sex marriage, this reform passed silently and was not subsequently challenged.
While the anti-rights camp collected the required signatures to trigger the referendum, civil society group Operation Libero also ran a campaign that collected more than 100,000 signatures supporting Marriage for All, aimed at showing that the majority was on the side of equal rights.
By the three-month deadline, the anti-rights initiative had collected 61,027 signatures, comfortably over the 50,000 threshold, which meant that Marriage for All would be subjected to a popular vote. This put many LGBTQI+ activists in an uncomfortable situation, as they were convinced that the rights of minorities should never depend on the will of the majority. But however unwillingly, they were already on the dance floor, so they danced – and as it turned out, they stole the show.
VOICES FROM THE FRONTLINE
Reto Wyss is an International Affairs Officer with Pink Cross, Switzerland’s national umbrella organisation of gay and bisexual men.
To enshrine same-sex marriage, all that was needed was a law like the one parliament had passed in December 2020, amending the Civil Code to extend marriage to all couples beyond those of a man and a woman.
No referendum was necessary: the one held on 26 September was an optional referendum launched by opponents of the law, who intended to show that parliament’s decision was not welcome by the Swiss people and overturn it. To have this referendum called, they campaigned actively to gather the 50,000 signatures required. LGBTQI+ organisations would have been largely pleased with letting the decision made by parliament stand, rather than asking everybody whether they agreed with granting us the same rights as everyone else.
We wanted to gain as much visibility as possible, so we campaigned with thousands of rainbow flags hanging out of balconies throughout the country and posted many great videos online. This was a very broad grassroots campaign with many activists taking part, both online and in person. Our main message was that the same rights must be recognised for everybody, with no discrimination, and that in Switzerland it was about time.
The recognition of marriage to all couples will eliminate the inequalities in legal treatment that still exist regarding facilitated naturalisation, joint adoption, joint property, access to medically assisted reproduction and legal recognition of parent-child relationships in cases of medically assisted reproduction.
This is an edited extract of our interview with Reto Wyss. Read the full interview here.
Das Referendum gegen die #Ehefüralle ist offiziell zustande gekommen und die Abstimmung wird voraussichtlich im Sept. oder Nov. stattfinden. Wir sind bereit und werden im Abstimmungskampf der Schweiz zeigen, dass unsere Liebe stärker ist, als die Intoleranz der Gegner*innen!♥️ pic.twitter.com/V6DRfbWnzY— PINK CROSS (@pinkcross_ch) April 27, 2021
A win with rainbow colours
In November 2020, a poll conducted by the LGBTQI+ organisation Pink Cross found that 82 per cent of people backed same-sex marriage, 72 per cent supported joint adoption by same-sex couples and 70 per cent agreed that lesbian couples should have access to assisted reproduction.
Based on the conviction that a substantial majority supported the extension of rights, the ‘yes’ campaign insisted that it was time for Switzerland to live up to its international reputation and catch up with its neighbours. The issue at stake was a basic human rights demand. Switzerland looked behind the curve. It was time for that to change.
The Marriage for All campaign went out of its way to present the change as non-controversial: its efforts focused on emphasising that LGBTQI+ people were and had always been a part of every society, and that same-sex love was simply love and deserved identical respect and legal protections as those already afforded to love between people of the opposite sex. ‘Gleiche Liebe. Gleiche Rechte’ – ´The same love. The same rights’ – was the slogan that reflected this conviction.
Far from presenting its position as hate speech, however, the ‘no’ camp hijacked the human rights discourse, presenting its opposition to equal marriage as a reflection of their concern for the welfare of the most vulnerable of all: children. They were particularly upset by the law recognising the right of lesbian couples to access sperm donations, viewed as somehow forfeiting the best interests of the children conceived as a result. They also feared that this would pave the way to the legalisation of surrogacy to make fatherhood an option for male same-sex couples as well.
The ‘yes’ campaign was therefore compelled to talk about child rights and argued that universal marriage offered the highest legal protection to the thousands of children who were already part of families formed by same-sex partners; that this was a matter of basic human equality and recognition for them too.
VOICES FROM THE FRONTLINE
Jessica Zuber co-led the Marriage for All campaign of Operation Libero, a civil society movement that advocates for more transparent, accountable and inclusive politics.
We launched our campaign six weeks before the vote. It focused on the motto ‘same love, same rights’. Our campaign complemented that of the ‘official’ committee led by the LGBTQI+ community, showing real same-sex couples on their posters. To set ourselves apart and appeal to a more conservative target, we showed same-sex couples alongside heterosexual couples.
For the launch of our campaign, we staged a marriage and the pictures of this ceremony provided the visuals for media coverage during the campaign. Some of our main concepts were that fundamental rights must apply to all people, and that no one loses when love wins. It was a feelgood campaign, as we intentionally refrained from being too controversial – for instance, by highlighting that homophobia is still a phenomenon very present in Swiss society.
During the campaign, around 150,000 of our flyers were handed out, 13,000 coasters ordered and 10,000 stickers distributed. Our main financial income to pay for this was the sale of our special socks, of which we sold almost 10,000 pairs. We organised boot camps to prepare voters for debates and launched a poster campaign in train stations and public buses. The joint flyer distribution event with members of the right-wing populist party – who, against the official party line, supported marriage for all – attracted media attention and succeeded in showing how broad support for the law was.
A week before the vote we held an event where 400 people lined up on either side to applaud newlywed couples – same-sex and different-sex – as they ran through. This was a very inspiring event, the biggest of its kind in Switzerland.
This is an edited extract of our interview with Jessica Zuber. Read the full interview here.
Gleiche Liebe. Gleiche Rechte. ♥️— Operation Libero (@operationlibero) September 22, 2021
Gleicher Meinung? Dann wirf JETZT dein JA zur Ehe für alle entweder per A-Post oder direkt bei deiner Gemeinde ein. Gleichberechtigung geht uns alle etwas an. 🗳https://t.co/6qngVwABrg#abst21 #ehefüralle #ehefüralleja pic.twitter.com/5O5GIcExym
Shortly before the referendum, tens of thousands turned up at the Zurich Pride March, which in 2021 mobilised under the banner ‘You can do it. Marriage for everyone now’. Some 20,000 people and over 70 LGBTQI+ organisations took part in the event, with many holding signs that read ‘Ja, ich will’ (‘Yes, I do’), one of the slogans of the Marriage for All campaign. In a country where referendums are routinely held in batches about four times a year, this one was described by Pride organisers as ‘the most important socio-political vote in decades’.
The rest is history. The Swiss LGBTQI+ movement confirmed at the ballot box that the spirit of the times is on their side. The anti-rights attempt to use a referendum to block progress failed. Switzerland has shown that it has a sizeable majority that supports equal rights. Now civil society will work to capitalise on that support to ensure that legal recognition translates into lives free of discrimination and violence for all LGBTQI+ people.
OUR CALLS FOR ACTION
Swiss civil society groups should monitor the implementation of the new law and be ready to campaign against any anti-rights backlash.
Swiss LGBTQI+ groups should continue to push for trans rights and the protection of trans people from violence and discrimination as the next steps in their rights struggle.
Swiss civil society should support campaigns to recognise same-sex marriage in other European states – including Italy – where it is not currently recognised.