Non-discrimination legislation finally complete for LGBTI in Danish legislation. The Danish parliament passed a Bill, which fills the voids in the protection of LGBTI persons. It specifies the categories protected and adds intersex under the provisions.
From a legislation point of view, protection against discrimination involves a number of aspects, including protection in the labour market, protection in relation to goods and services, and access to an administrative complaint body. Denmark has Civil Law (as opposed to Common Law) but in the Scandinavian sense (see ruler of law – how to measure the quality of law). This means that the specificities are codified in the law to a large extent, but there is room for interpretation by the judiciary. Consequently, in Denmark, the legal guidelines are the code together with the preparatory legislative materials (travaux préparatoires), e.g., an extensive commentary to the Bill, which indicate the intentions of the legislature.
This context has played a significant role in the history of legislative protection in Denmark. In general, the development of protection laws in Denmark is driven by international agreements, e.g., UN conventions and EU directives – for LGBTI as well as for all other categories. LGBT komiteen published an analysis – in Danish – of this development (Tøven med beskyttelse mod diskrimination).
Structure of the Danish legislation
Denmark introduced an anti-discrimination provision in 1939 to address anti-semitic persecution. This is a provision in the Penal Code (§ 266 b) and it is the base provision in this area. It criminalises threats and degrading speak directed against a group of persons identified by some characteristics: originally, it mentioned belief, origin, and citizenship. Since then, it has been amended, and in 1987 it came to include sexual orientation. In the comments to the Bill is was stated that also other kinds of sexual orientation than the homosexual were covered, e.g., transvestitism. Because of this comment, the provision was subsequently used successfully in relation to trans cases.
In 1971 a goods and services provision was introduced covering race, skin color, national or ethnic origin, and belief. In 1987 also this provision was amended to include sexual orientation.
The penal code also contains a provision on hate crime (§ 81, nr. 6) stating that it is considered an aggravating circumstance if the offense is based on the victim’s ethnic origin, belief, sexual orientation, etc. This provision was introduced in 2004.
Protection in the labour market was introduced in 1996 and included sexual orientation from the beginning.
An administrative complaint body – the Board of Equal Treatment – was created in 2009. No new protection was created in that context. In relation to the labour market, the Board of Equal Treatment processes complaints regarding gender, race, skin color, religion or belief, political opinion, age, disability, sexual orientation, and national, social, and ethnic origin. Outside the labour market the Board of Equal Treatment processes complaints regarding gender, race, ethnic origin, and disability. Protection in the goods and services space exists in relation to, e.g., sexual orientation, but such cases can be processed only by the courts, not by the Board of Equal Treatment.
Thus, in summary, discrimination on the ground of sexual orientation is prohibited in the Penal Code in the base anti-discrimination provision and the hate crime provision. Furthermore, discrimination is prohibited in the labour market. This can be addressed by the administrative complaint body. Discrimination in relation to goods and services is also protected but can only be treated by the judicial system, not by the administrative complaint body. Gender identity and gender expression are not addressed explicitly but are considered to be included due to the comment to the Bill in 1987. This has resulted in trans related decisions in the Board of Equal Treatment as well as in courts. Though there are no decisions yet related to sex characteristics, it is expected similarly to fall within the current legislation.
The founders of LGBT komiteen were deeply involved in a successful trans case on the labour market a few years back (Michelle var udsat for diskrimination som transkvinde – in Danish).
Road to amendment
For long, we asked for the protection legislation to be amended beyond the labour market and beyond sexual orientation, but the political landscape was not sufficiently receptive. This changed, however, in the last decade. The previous Government (right-liberal) initiated an analysis of the legislation in regard to shortcomings in relation to LGBTI. I was asked to prepare a starting point, which I did. When the analysis was finally published under the current Social-Democratic Government, it followed that layout closely.
In 2020 when the extensive final report from the cross-departmental workgroup was published, it was followed by a list of ten initiatives, four of which were related to equal treatment:
- Gender identity, gender expression, and sex characteristics are to be explicitly included in the protection laws.
- Gender identity, gender expression, and sex characteristics are to be explicitly included in the hate crime provision (aggravating circumstances).
- Sexual orientation, gender identity, gender expression, and sex characteristics are to be generally protected outside the labour market.
- Following the three bullets above, there will be access to file complaints with the Board of Equal Treatment on sexual orientation, gender identity, gender expression, and sex characteristics within as well as outside the labour market.
At the commencement of the current parliamentary year, the Government presented a Bill. A draft of the Bill had been subject to public consultation. We were pretty satisfied with the draft and had but few suggestions. However, one thing that we addressed, and which was accepted, was to change the use of ‘transgender’ (used as a noun) to ‘trans person’. In Danish, the term ‘transgender’ is sometimes used as a synonym for ‘trans person’ and sometimes as a synonym for the obsolete term ‘transsexual’. To emphasise that the law covers the entire trans population the term trans person is preferred.
Furthermore, disability is added to the base provision of the Penal Code (§ 266 b). This is to finish a previous amendment of the protection legislation to cover disability.
Passing the Bill
A Bill must be read three times in the Chamber before it can be passed. In the first reading, the parties present their positions, and after the reading, the Bill will be discussed in a parliamentary committee, in this case, the Gender Equality Committee. Before the first hearing, the parties have discussed the Bill internally, and their positions are usually quite firm, already in the first hearing. The committee debates the Bill in detail and prepares a report, which often contains proposals for amendments.
In the current case, The Conservative Party proposed a thorough revision of the base provision changing it from criminalising discrimination against a group of persons on the ground of some common characteristics such as religion or sexual orientation, to criminalising discrimination against such a group provided this results in disturbing the public order. Such a change would totally undermine the protection against discrimination. It’s interesting that The Conservative Party wanted to knock down the provision introduced to counteract discrimination against Jewish people in the 1930-ies.
LGBT komiteen immediately wrote to the Gender Equality Committee stating the lack of identity: because a Bill has to have three readings in the Chamber, no amendments may be made, which changes the original Bill substantially. Changing the base provision of the anti-discrimination legislation to make disturbance of the public order a condition for protection is a substantial change; evidently, the requirement for identity is not fulfilled.
To our dismay, the amendment was accepted for processing. In practice, it was irrelevant as it was evident that there would be no majority behind it. It was disappointing, though, that The Liberal Party (Venstre) voted in favour of the amendment together with The Conservative Party, Liberal Alliance, and New Right (Nye Borgerlige).
Both the second and the third reading of the Bill were technical without any debate in the Chamber. December 21, 2021, the Bill was passed by the Parliament:
- 85 votes in favour: The Social Democratic Party (S), The Liberal Party (V), The Socialist People’s Party (SF), The Social Liberal Party (RV), The Red-Green Alliance (EL), The Conservative party (KF), The Independent Greens (FG), The Alternative (ALT)
- 15 votes against: The Danish People’s Party (DF), The New Right (NB), Liberal Alliance (LA)
- 0 votes neither in favour nor against
The law comes into force on January 1, 2022.
Source materials in Danish
LGBT komiteen: Konservative vil underminere lovforslag om ligebehandling
LGBT komiteen: analysis of the ant- discrimination legislation in Denmark (Tøven med beskyttelse)
On the amendment of the anti-discrimination provisions in 1987:
Information in English on the Danish parliamentary system (from the web of the Parliament)