ЛГБТ в Румынии: Права, дискриминация и законодательные изменения

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Lesbian, gay, bisexual, and transgender (LGBT) people in Romania may face legal challenges and discrimination not experienced by non LGBT residents. Attitudes in Romania are generally conservative, with regard to the rights of gay, lesbian, bisexual, and transgender citizens. Nevertheless, the country has made significant changes in LGBT rights legislation since 2000. In the past two decades, it fully decriminalised homosexuality, introduced and enforced wide ranging anti discrimination laws, equalised the age of consent and introduced laws against homophobic hate crimes. Furthermore, LGBT communities have become more visible in recent years, as a result of events such as Bucharest's annual pride parade and Cluj Napoca's Gay Film Nights festival. In 2006, Romania was named by Human Rights Watch as one of five countries in the world that had made "exemplary progress in combating rights abuses based on sexual orientation or gender identity." However, in June 2020, it placed a blanket ban on the study of gender identity in education. The ban was struck down in December 2020 by Romania’s Constitutional Court. In April 2022, a bill passed in the Senate of Romania banning "gay propaganda" in schools. It was approved by the Romanian Human Rights Commission but requires approval by the Chamber of Deputies, Romania's lower house of Parliament.

The Penal Code promulgated by Alexandru Ioan Cuza in 1864, inspired mainly by the French Penal Code of 1810 (which, over time, had eliminated the penal discrimination of homosexuality), did not treat homosexual relations differently from heterosexual ones, and thus, homosexuality was only illegal if it was done on an unconsensual basis. Starting with 1878, the corresponding Transylvanian Hungarian code penalised gay men only if they engaged in violent homosexual acts, such as rape or attempted rape. Likewise, Bukovina punished homosexual rape through old Austrian Article 129. In 1948, this "public" homosexuality was extended by a court so that it included all situations whatever public or private if "provoking scandal", thus homosexuality became de facto illegal. In the new Penal Code of the Romanian People's Republic, Article 431 toughened penalties to a minimum of two years' and a maximum of five years' imprisonment. Sexual relations between persons of the same sex shall be punished with imprisonment from 1 to 5 years. Act stipulated in paragraph 1, committed against a minor, against a person unable to defend himself or to express his will, or by coercion, shall be punished with imprisonment from 2 to 7 years. If the act stipulated in paragraph 2 and 3 results in serious injury of physical integrity or health, the penalty is imprisonment from 3 to 10 years, and if results in the death or suicide of the victim, the penalty is imprisonment from 7 to 15 years. Inciting or encouraging a person to practice the act stipulated in paragraph 1 shall be punished with imprisonment from 1 to 5 years. Article 200 was purposeful to Ceaușescu regime in that, since 1970, it offered a pry to strengthen social control. These restrictions under the Penal Code were strictly unique to Romania and no other European country. The restrictions only included relationships and those who considered themselves homosexual were not punished but were instead considered as mentally ill. In the early 1990s, when gay rights activists, international human rights organizations, and the European Council started to press the Romanian government to decriminalise homosexuality and ensure equal rights for all citizens, the conservative political élites and the Orthodox Church claimed that sexual minorities did not exist in Romania prior to 1989 and that homosexuality was only an undesirable product of capitalism, a lifestyle induced by the Western democracies, and not a part of the heteronormative Romanian culture. In 1995, Romania applied for EU membership. As of 1995, it was one of only three countries in Europe that still criminalised homosexuality. Due mainly to strong international pressure, in 1996, the first paragraph of Article 200 was amended and only same sex sexual activities performed in public or considered a source of public scandal were punished by the law. In 2000, Romania began EU accession negotiations, and the country had to demonstrate progress in harmonizing its laws with the EU legislation. In particular, Romania had to prove that sexual minority human rights were not violated by the country's policies and legislation. And the possibility of eventual entry into the European Union had a powerful effect on legal change. In January 2001, Adrian Năstase's government adopted the Emergency Ordinance no. 89/2001, which eliminated Art. 200 of the Penal Code and adjusted other articles referring to sex offences to avoid discriminatory treatment of offenders. This ordinance came into force in January 2002, after President Ion Iliescu signed the new law. In late 2007, the right wing Greater Romania Party proposed a law in the Senate that would ban the "propagation of ideas and manifestations by homosexuals and lesbians", designed primarily to prevent Bucharest's annual GayFest pride parade from taking place. The proposal was rejected by the Senate on 11 February 2008, with 17 votes for, 16 abstentions and 27 votes against.

Law no. 273/2004 on the procedure of adoption in Romania does not stipulate as a condition of the adopter to be heterosexual, so under the domestic laws a homosexual can claim to adopt a child. Furthermore, in the case of E. B. v. France (2008), the Grand Chamber of the Strasbourg Court ruled that the authorities' refusal to allow a person to adopt a child on the basis of sexual orientation creates a difference of treatment incompatible with human rights. On the other hand, Romania does not have access to the joint adoption and adoption by the second parent. It is legal for single women, including lesbians, to access means of assisted insemination, such as IVF. In 2005, the Constitutional Court ruled that it is unconstitutional to deny medically assisted reproduction, such as IVF, to individuals or those who are unmarried.

Since 1996, it has been possible for someone who has gone through sex reassignment surgery to legally change their sex in their official documents. However, the law governing the ability of transgender persons to change their identity is vague and incomplete, resulting in inconsistency in judicial practice concerning legal recognition of gender identity. In some cases authorities denied recognition of a change in identity unless a sex reassignment intervention had occurred. and the law on the procedures for identification documents offer indirect guidance on the procedure for sex change and for changes to names and identification data. Changing civil status requires a court decision based, in practice, on a certificate issued by the Institutul Național de Medicină Legală (National Institute for Legal Medicine) following an intrusive and arbitrary procedure that was developed ad hoc to fill a legal vacuum. In June 2020, Romania's parliament passed an amendment to the education law placing a blanket ban on gender identity studies. The bill was passed without public debate and was condemned by human rights groups and universities. The ban was struck down in December 2020 by Romania’s Constitutional Court. Nonetheless, many – if not most – gay and lesbian members of the military choose to remain closeted in the work place due to continued fear of discrimination.

In 2000, the Romanian Parliament enacted a law that explicitly outlawed discrimination on the basis of sexual orientation in a variety of fields, including employment, the provision of and access to goods and services, housing, education, health care, audiovisual programming, the justice system, other public services and social security. The law, which is among the most comprehensive in the European Union, has been successfully tested by the National Council for Combating Discrimination (CNCD), Romania's equality body, which has fined a number of individuals and firms for discriminating on the basis of sexual orientation. An example of this was when TAROM, the national air carrier, was fined for refusing to allow same sex partners to take advantage of its discounts for couples on Valentine's Day 2005. Aside from imposing a fine, the CNCD obliged TAROM to rectify the situation.

On 5 June 2013 a Parliamentary Committee for reviewing the Constitution voted to include sexual orientation as a protected ground against discrimination in the new Constitution. The same committee voted, the following day, to change the current marriage law form, which describes marriage as "a consensual union between spouses," to the more restrictive form, describing it "as a union between a man and a woman alone", thus banning same sex marriage. the committee retracted both amendments. Dozens of NGOs protested the move (to retract the Constitutional protection against discrimination on the basis of their sexual orientation) and said "members of the Committee for Constitutional Revision deny the protection for the citizens who most need it" and that "as a Member State of the European Union, it is mandatory for Romania to implement the provisions of Community law in the national legislation." Green Party MP Remus Cernea, who is a staunch supporter of LGBT rights, and who has introduced a failed draft law to the Senate in order to legalise civil unions, thinks of the move as a "clear a democratic setback; Romania should now be included among the most homophobic countries in the world." However, in September 2007, Romania's National Council for Combating Discrimination ruled that this ban was illegal, constituting discrimination on the basis of sexual orientation and creating a "hostile, degrading, humiliating and offensive atmosphere for homosexuals." The Council, which is Romania's equality watchdog, ordered the Ministry of Health to remove the ban on MSMs donating blood. In January 2008, in order to comply with the Council's ruling, the Ministry of Health released a new law which removes the ban on men who have had sex with men from donating blood. Nevertheless, the law has not yet been implemented. Moreover, on 29 April 2015, the European Court of Justice in Luxembourg City proposed to exclude gay people from the list of blood donors, without the decision to be considered discrimination based on sexual orientation.

On 28 March 2007, the National Audiovisual Council gave a 10,000 lei (€3000) fine to Prima TV's primetime satire comedy show, Cronica Cârcotașilor, for making homophobic comments. In two episodes, the show's presenters had allegedly made fun of Mircea Solcanu, an Acasă TV presenter who had come out as a gay man. The president of the National Audiovisual Council, Ralu Filip, justified the fine by stating that, "I felt it was unacceptable the way in which they made fun of a sexual orientation in this way, especially since it was about a colleague." This represents the first time an audiovisual programme has been fined for homophobia in Romania, based on Article 46 of the Audiovisual Law, which prevents programmes from containing any discrimination on the basis of race, ethnicity, gender and sexual orientation. The incident sparked off a public debate regarding homophobia and representations of LGBT people in the mass media. Attila Gasparik, the vice president of the National Audiovisual Council, stated that Cronica Cârcotașilor, as well as other high profile TV shows, will continue being held under "strict observation because they have a very high impact, reason for which we have to be very rigorous in our monitoring."

On 7 November seven young people were assaulted in Bucharest at the National School of Political Science and Public Administration after attending an academic debate about the history of homosexuality in Romania. A number of parents, right left NGOs, and a judge have publicly protested against this initiative, and have written to the government and to the parliament and asked for these activities to cease immediately. The open letter contained complaints mostly based on religious grounds. An official inquiry into this initiative was opened. On the evening of 20 February around 50 protesters stopped a screening of the film The Kids Are All Right at the Museum of the Romanian Peasant in Bucharest, shouting homophobic slogans and verbally attacking the theatre goers. The screening took place as part of the LGBT History Month at the museum. The anti gay group verbally assaulted film goers calling them "beasts", "scum" and chanting "Death to the homosexuals", "We don't want you here", and "You are not Romanians." Besides the assault, militants also filmed and photographed attendants. The militants then proceeded to sing the Romanian national anthem and Christian Orthodox chants, and used religious symbols (icons) as well as fascist ones (the Nazi salutes). In 2021, the European Court of Human Rights ruled that Romania violated Article 8 and Article 11 of the European Convention on Human Rights for failing to protect the freedom of association of the filmgoers by conducting an effective investigation into the disturbances. The court also found that Romanian authorities "discriminated against the applicants on the grounds of their sexual orientation". In another well publicised case, CNA gave a 10,000 lei fine to Antena 1 and received a reprimand from FremantleMedia, British TV company that holds the license of X Factor worldwide, after Cheloo, judge of the Romanian edition of the show, made discriminatory statements on an openly gay Italian contestant.

In a poll of approximately 3,200 people in Romania in 2019, 53% of LGBTI people reported that they were "(Almost) never open" about being LGBTI. 23% stated they were "rarely open", 18% stated they were "fairly open", and 7% stated they were "very open".

In 2015, an alliance was formed between over 30 Romanian NGOs under the name of Coalition for Family. The coalition's main activity consisted in promoting and collecting signatures for a citizen's initiative aiming to revise the Constitution and prevent interpretations that would permit gay marriage. By May 2016 the coalition had gathered over 3 million signatures. The proposal is actively supported by the Romanian Orthodox Church. On 20 July 2016, the nine judges of the Constitutional Court ruled unanimously that the proposal to change the constitution's definition of marriage was valid. In October 2018, the referendum to define marriage as exclusively heterosexual failed. The referendum was invalid and failed due to low voter turnout; it did not reach the threshold needed.

Same sex sexual activity legal (Since 1996) Equal age of consent (16) (Since 2020) Anti discrimination laws in employment only (Since 2000; sexual orientation only) Anti discrimination laws in the provision of goods and services (Since 2000) Anti discrimination laws in all other areas (incl. indirect discrimination, hate speech) (Since 2006) Same sex marriages Recognition of same sex couples Adoption by single LGBT individuals Step child adoption by same sex couples Joint adoption by same sex couples Gay, lesbian and bisexual people allowed to serve openly in the military Right to change legal gender (Since 1996, requires surgery) Access to IVF for lesbians (Since 2005) Commercial surrogacy for gay male couples MSMs allowed to donate blood