(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
LEGAL INFORMATION
Sweden decriminalized same-sex relationships in 1944. However homosexuality was still seen as an illness and a higher age of consent (18 years old) was put in place. After 1978, the legal age of consent for all sexual activity has been 15 years. In 1972, the Legal Gender recognition Act comes into force, allowing individuals to change their legal gender identity, along with free gender reassignement treatment. Additionally, same-sex partners were included in the Homosexual Cohabitees Act in 1988 and the Cohabitation Act of 2003, and given equal rights to those in heterosexual relationships. In 1995, the Registered Partnership Act came into force, followed by the Equal Treatment of Students at Universities Act in 2002, which states that ‘its purpose is to promote equal rights for students and applicants in the higher education sector and to combat discrimination in higher education on grounds of sex, ethnic affiliation, religion or other belief, sexual orientation or disability.’
In 2003, same-sex registered partners were given the same rights as opposite-sex couples with respect to all forms of adoption and legal custody of children. Moreover, the Prohibition of Discrimination Act came into force, prohibiting discrimination in areas such as the labor market, housing or for entrepreneurs. This was further expanded in 2005 when discrimination within the social welfare and health care systems was banned, enabling access to medically assisted insemination for female same-sex couples. The Marriage Act 2009 is sex and gender neutral. It states ‘same-sex couples can enter into marriage on the same terms as couples of different sexes. The provisions of the Marriage Code are applied in the same manner, regardless of whether the spouses are of different sexes or the same sex.’. The gender neutral Marriage Act replaces the earlier Registered Partnership Act regulating same sex couples. Under Swedish law, it is illegal to discriminate against anyone on the basis of their sexual orientation or gender identity. Section 1 of the 2009 Discrimination Act states, ‘the purpose of this Act is to combat discrimination and in other ways promote equal rights and opportunities regardless of sex, transgender identity or expression, ethnicity, religion or other belief, disability, sexual orientation or age’. The Ombudsman Against Discrimination (DO) is the Swedish government authority working against homophobia and discrimination on the grounds of sexual orientation.
It is important to emphasise that at present these laws apply to sexual orientation but not to gender identity, which means that the transgender community is at best indirectly included. As The Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights (RFSL) further explains, “For non-binary people, legal gender recognition is presently impossible, since Sweden does not recognise more than the two binary genders”. Data in their report showcases that trans people have significantly worse general health than the mean for the Swedish population, due to lack of support and bad treatment within the healthcare system, especially for non-binary people.
Among other recommendations linked to training staff and improving gender identity clinics, the RFSL emphasises that “the Swedish Government must take action to make the process around legal gender recognition easier, separating it from the medical procedures and letting young people, less than 18 years old, have their gender recognised”, as well as making personal identity numbers gender neutral.
CASE LAW
The 2009 UNHCR Report ‘Fleeing for love: asylum seekers and sexual orientation in Scandinavia estimates that there are around 300 asylum cases related to sexual orientation anually.
A.E vs. SWEDEN, 28/05/2020, UN Human Rights Committee (HRC)
The applicant is a Nigerian man who applied for asylum in 2015, in fear of persecution from Boko Haram. After having his first application rejected by the Migration Agency, the applicant used his sexual orientation as basis for potentiel persecution in his home country. The Migration Agency rejected his application a second time, finding his statements about his homosexuality to be “vague, undetailed and implausible”. In 2018, the applicant participated in an interview, discussing his sexual orientation and clearly showing his face, which put him at the risk of being imprisoned for 10 years to 14 years if convicted. However, the Migration Agency “found that the author was not facing a personal and real risk that would justify asylum in Sweden, mainly since he did not establish as probable that he was homosexual or convincingly demonstrate his identity and that he would attract the risks under the name cited in the Swedish or the Nigerian newspaper articles”. His appeal to the Committee was also rejected.
ME vs. SWEDEN 26/06/2014, Fifth Section; European Court of Human Rights
The applicant, a Libyan national who had been living in Sweden since 2010, applied for asylum initially on the grounds that he feared persecution because of his involvement in the illegal transportation of weapons. Later he raised an additional ground for asylum stating that he was homosexual and had married a man. As to the original ground for his asylum request, he accepted that in view of political changes in Libya, he would probably no longer be in danger there. The Migration Board rejected his request, finding that he had given contradictory statements and that his story lacked credibility. It found no obstacle to his returning to Libya to apply for a residence permit in Sweden on account of his family ties and marriage. The Migration Court dismissed his appeal after finding that he was not in need of international protection and that his story was not credible.
[Note: In 2015, citing a worsening security situation in Lybia, the Migration Board in Sweden decided not to deport the applicant and he was issued permanent residency. The ECtHR subsequently struck off his application, without further resolving the question of Sweden’s liability under Article 3].
MONDAL vs. SWEDEN 23/05/2011, Stockholm Migration Court
The applicant was a political activist in Bangladesh, resulting in problems with the rival Bangladesh National Party (BNP) militants and abuse by police officers. The applicant also feared persecution and harassment as part of the Hindu religious minority. Additionally, the applicant stated that a Muslim friend of his informed other people about his homosexuality, and as a result, the Imam of the area issued a death fatwa against him. Because Hinduism also forbids homosexual relations, he had problems with his family. In support of his claims, the applicant presented his national passport, the Mosque’s fatwa against him, as well as certificates of his BDB party membership, a press article, and a Swedish medical journal.
On 15 June 2005, the Migration Board rejected the complainant’s asylum application for the following reasons: the applicant failed to establish his identity as his passport was damaged, the political activities had been limited in time and in place, the torture allegations were seen as an isolated act and the problems caused by his religious faith are not sufficient for grounding need of protection. The Board had admitted that homosexuality was criminalized in Bangladesh and could be punished with life imprisonment. However, it asserted that in practice, there is no active persecution of homosexuals in Bangladesh. Therefore, the court found no humanitarian reasons to grant a residence permit to the applicant. He appealed this decision with the Supreme Court of Migrations Appeals but they rejected the complaint in 2007.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
In 1971 the first gay demonstration took place in Örebro. Although homosexuality was decriminalized in 1944, it was nevertheless treated as an illness until the Swedish National Board of Health and Welfare removed homosexuality from its medical diagnosis list in 1979.
Seeking asylum based on sexual orientation
In line with the Geneva Convention, the Swedish Aliens Act 2005 defines refugees as persons who are outside their country of origin owing to ‘a well-founded fear of persecution due to race, nationality, religious or political belief or because of gender, sexual orientation or other belonging to a particular social group’, and who ‘cannot, or because of his or her fear will not, avail himself or herself of that country’s protection’. The 2009 UNHCR Report ‘Fleeing for love: asylum seekers and sexual orientation in Scandinavia explains the two main reasons used to reject individuals seeking asylum on grounds of sexual orientation: Firstly, the Migration Board and Migration Courts’ country of origin information states that homosexuals are generally not persecuted because of their sexuality. Secondly, the Migration Board and Courts doubt the credibility of asylum-seekers, sometimes including his or her claimed sexual orientation. Nevertheless, the RFSL estimate that about two-thirds of those seeking asylum on grounds of sexual orientation are eventually given protection. However, the 2013 Swedish Annual Review of the Human Right Situation of Lesbian, Gay, Bisexual, Trans and Intersex People published by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) highlights that it is becoming more difficult for LGBT asylum seekers to stay in Sweden. The report states that the Swedish asylum authorities rejected a number of applications from gay men in 2012, but also mentions that many got their case re-opened and received status in Sweden due to their appearance in Swedish media or other interventions. More information about application statistics can be found in the Asylum Information Database, National Country Report of Sweden.
Public attitudes
Despite the laws to protect the LBGTI community, violent and discriminatory crimes still occur.
Looking at homophobia in religious institutions, starting from the 1st November 2009, the Church of Sweden (Svenska Kyrkan) will officiate marriages between same-sex couples. ILGA’s 2013 Swedish Annual Review Report also traces evidence of progressive public attitudes: On the 2012 Eurobarometer Sweden scored 8.8 on a scale from 1 (‘totally uncomfortable’) to 10 (‘totally comfortable’) when asked how comfortable they would feel with an LGB individual in the highest elected political position in their country, and they scored 7.4 when asked about a transgender/transsexual person in the highest elected political position in their country. Both scores are significantly above the EU27 average. Again in the 2019 Eurobarometer Sweden scored the highest among member states of the EU, with 98% of Swedes agreeing that “Gay, lesbian and bisexual people should have the same rights as heterosexual people” (with a rise of 3 points between May/ June 2015 and May 2019).
In March 2012, a concert by Jamaican rap artist Sizzla was cancelled in Stockholm due to a public outcry in response to the homophobic lyrics in some of his material. However, another act against homophobia followed several months later, in December, when the Swedish football club Sörskogens IF fired all the players on its top team following complaints that players hurled homophobic remarks at members of the opposing team, Stockholm Snipers (a football club with mainly LGBT players).
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
We do not currently list any LGBTI NGOs in Sweden, but we welcome suggestions.
COUNTRY OF ORIGIN SPECIALISTS
We do not currently list a specialist on LGBTI issues in Sweden, but we welcome suggestions.
Researched by: Tamara van Doorn
Email: Tamara.vdoorn105@hotmail.com