Rights of LGBTIQ persons
In recent years, significant developments have taken place regarding the rights and protection of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) persons in Switzerland.
These legislative and administrative advances strengthen the rights and protection of LGBTIQ persons.
Discrimination and incitement to hatred based on sexual orientation
Since 1 July 2020, public incitement to hatred or discrimination against a person or group of persons based on their sexual orientation has been punishable under Article 261bis of the Swiss Criminal Code. This provision prohibits public incitement to hatred or discrimination (first paragraph), denigration (second paragraph), propaganda (third paragraph) and statements that violate human dignity (fourth paragraph, first sentence). Furthermore, it prohibits the refusal to provide a service on the grounds of race, ethnic origin, religion or sexual orientation when that service is intended to be provided to the general public (fifth paragraph).
Marriage for all
Same-sex couples have been able to marry in Switzerland or convert their registered partnership into a marriage since 1 July 2022.
Following its entry into force and the resulting revision of the Civil Code (de, fr, it), same-sex couples can now marry on an equal footing with opposite-sex couples.
The new legislation replaces the registered partnership, established in 2007, which provided a limited legal framework for same-sex couples without granting them the same rights as marriage, particularly regarding facilitated naturalisation, kinship and adoption.
Married same-sex couples can now jointly adopt children and have access to medically assisted reproduction (MAR) in the form of sperm donation for married women.
Simplification of the procedure for changing gender and first name
As of 1 January 2022, any person aged 16 or over who has a deep and enduring conviction that they do not belong to the sex entered in the civil register may request a change to their gender and first name in the civil register (de, fr, it) by simply making a declaration to the civil registrar, without the need for medical justification. Those under 16 may do so with the consent of their legal representative. This option is provided for in Article 30b of the Swiss Civil Code.
Revision of the Civil Status Ordinance
In June 2024, the Federal Council approved a revision of the Civil Status Ordinance (CivStO), introducing a new Article 35a (de, fr, it) concerning children exhibiting variations in sexual characteristics. This revision extends the deadline for registering a child’s sex with the civil register, which is now three months rather than three days.
This revision adopts the solution proposed by the Central Ethics Committee of the Swiss Academy of Medical Sciences (SAMS). The committee considers that, in the vast majority of cases, this timeframe allows for the necessary medical examinations to be conducted. It also helps to avoid putting unnecessary pressure on parents and healthcare professionals regarding the registration of a child’s sex on the civil register.
The Federal Constitution and the Gender Equality Act: How do they apply to LGBTIQ persons?
Federal Constitution
Article 8, paragraph 2 of the Federal Constitution establishes a general prohibition against discrimination:
‘No person may be discriminated against, in particular on grounds of origin, race, gender, age, language, social position, way of life, religious, ideological, or political convictions, or because of a physical, mental or psychological disability.’
This general prohibition encompasses discrimination based on sexual orientation, gender identity, gender expression and sex characteristics.
Gender Equality Act
The Federal Act on Gender Equality (Gender Equality Act, GEA) is based on Article 8, paragraph 3 of the Federal Constitution, which states that the law shall ensure de jure and de facto equality between women and men in all areas of life, including in the workplace.
The Gender Equality Act applies to all aspects of working life, from hiring to termination, continuing education, salaries and sexual harassment in the workplace.
The GEA prohibits any discrimination based on gender or on a criterion that can only be met by a man or a woman. According to the case law of the Federal Supreme Court (8C_594/2018 05.04.2019 – Federal Supreme Court) (de), this means that discrimination based on sexual orientation is considered discrimination under the law only if it is likely to discriminate against persons of a specific sex.
The Federal Supreme Court did not rule on the question of whether the Gender Equality Act also covers discrimination based on gender identity or sex characteristics.
Article 4 of the GEA on sexual harassment covers all types of sexist remarks, including those based on sexual orientation, gender identity, gender expression and sex characteristics.
Examples from case law
Cases based on the Gender Equality Act (GEA):
- Judgments handed down under the Gender Equality Act in German-speaking cantons (de)
- Judgments handed down under the Gender Equality Act in French-speaking cantons (fr)
- Judgments handed down under the Gender Equality Act in Italian-speaking Switzerland (It)[OW1]
Further information on this subject can be found under Federal Constitution and Gender Equality Act