Same-sex partnerships in Estonia – state of play

On 9 October 2014, the Estonian Parliament narrowly adopted the kooseluseadus (Registered Partnership Act), which enables two persons to register their partnership, regardless of their genders. This means that for the first time in Estonia, people who are gay, lesbian or bisexual can enjoy many of the family related benefits and rights that married couples have (marriage is currently only available for different-sex couples).

However, due to concerns that an absolute majority of the parliament (i.e. 51 votes for out of 101 members) was not reachable at that time, those provisions which required an absolute majority along with implementation related changes to other laws were not included in the adopted law. According to the Estonian Constitution, certain areas of regulation need to have an absolute majority, in this case matters related to court proceedings and registers, as well as citizenship issues were the ones which required 51 votes for. The partnership law indeed passed last year with a simple majority of 40 votes for and 38 against, but the matter of passing the implementing acts was delayed until after the parliamentary elections in March this year.

When the implementing acts were initiated by 38 members of the parliament mid-October, they only narrowly stayed in the legislative process after the first reading on 25 November 2015 with 41 MPs voting for and 42 against dropping the implementing acts from the Parliament’s agenda.

Based on the vote in the first reading, here are the positions of different parliamentary factions on the law:

Supporters:

• Reform Party (30 seats in the Parliament, right-liberal, EU level affiliation ALDE): supports the adoption of implementing laws, but has left the vote open in the Parliament, 25 MPs voted for the acts to stay in the process, 3 did not vote, 2 were not present. Has not taken the lead role as it is also mindful of the position of the coalition partner IRL.
• Social Democratic Party (15 seats, centre-left, EU level affiliation S&D Group): has been the foremost supporter of registered partnerships and considers it an important issue. In coalition government with Reform Party and IRL. All of its MPs voted for the implementing acts to stay in the legislative pipeline.

Against:

• IRL (14 seats, centre-right, EU level affiliation EPP): is mostly against, as it blames its loss of 9 seats in the last elections on not standing against the act strongly enough in the previous composition of the parliament. Allowed its MPs to vote freely, and one MP voted with the supporters of the act (11 voted against, 2 did not vote). In coalition government with Reform Party and Social Democrats, currently polling as least popular of all the parties in parliament, with single-digit support.
• EKRE (7 seats, far right): considers opposition to gay partnerships one of the reasons for its electoral success, aims to use it to gain further support. All members voted against the implementing acts.

In between, but leaning against:

• Centre Party (27 seats, centrist, EU level affiliation ALDE): mired in internal power struggles and corruption court cases, as well as long-term marginalisation by other mainstream parties, they have not had a consistent position on the law and also allowed a free vote. Its electorate Estonian Russians are more socially conservative than average Estonians. 16 MPs voted against the law, 6 did not vote and 5 were not present.
• Estonian Free Party (8 seats, conservative?, new party): still looking for a place in the political spectrum, the party proposed its own watered-down proposal that would only apply to same-sex partnerships. 7 members opposed the implementing acts, 1 voted for them to stay in consideration.

In order to obstruct the process of adopting the implementing legislation before the Registered Partnership Act is due to become in force on 1 January 2016, EKRE and Free Party proposed more than 300 amendments to the law. Most of the amendments are meaningless or repetitive and serve the purpose of delaying the discussion of the law. The Legal Affairs Committee of the Parliament was not able to go through all of them so the implementing legislation is not adopted this year and an unpredictable legal limbo has developed.

What has lead to this?

The adoption of the partnership act as well as its implementing acts have not followed the usual route of legislative process. The governing coalition government has not put its full weights behind the law and its implementation; it has been introduced most irregularly by MPs themselves. The issue was omitted from the coalition agreement and the law is one of the points of contention among the coalition partners. The Reform Party has taken a passive approach, preferring to work behind the scenes and not make the passing of the implementing legislation their priority, in fear of losing the support of more conservative elderly voters.

The results of the parliamentary elections meant the addition of two new parties to the parliament is a factor, because electoral volatility could be one of the reasons of less progressive stances on the issue (see Pelz). The conservative vote was essentially split into three, with IRL, Free Party and EKRE all fighting in a crowded conservative space. This makes it more difficult to agree on a compromise. EKRE sees their vocal opposition to the law a chance to gather support for themselves so they have nothing to gain from any kind of compromise.

A longer analysis of the whole process could also be interesting, because the communication decisions made at the introduction of the law (trying to downplay the same-sex part of the act), not having clear and persuasive messages, not sufficiently involving the LGBTI community or other NGOs have all contributed to the situation as it is. The powerful and well-funded counter-campaign by conservative-religious activists and lack of resources and strategy of supporting activists, have also had a considerable impact to how the issues have been framed.

What happens now?

There are several options after the Registered Partnership Act comes into effect in Estonia on 1 January 2016 (i.e. in less than three weeks). As there are no implementing acts, there is going to be considerable confusion initially, but Estonian officials are surely creative enough to be able to find ways how to implement parts of the law without having the implementing legislation (i.e. the notaries will be able to register the partnerships), at least if there is enough will to do it. If there are hiccups in some aspects, these will probably solved in courts or by some ad hoc solution, but there is a strong likelihood that some things remain in a serious legal limbo. In terms of legislation, there are the following options:

1. Only those implementing acts will be adopted early next year which require a simple majority. This is at the moment the most likely outcome, which leaves some of the more important issues (like intra-partnership adoption) to be fought for in courts unless an alternative solution is found. The changes that need to be made will remain for future consideration.
2. The implementing acts will not be adopted at all. This means a lot more uncertainty than option 1 (and also more options for court cases).
3. The implementing acts will be adopted in full. In this case most issues will be solved and the topic will not be returned to until and if there is interest in making marriage gender-neutral, which would not  probably be in the near future.

Could the whole partnership act be annulled?

The Registered Partnership Act cannot be lawfully annulled by the Parliament. Although there are a number of MPs working to annul the act, they do not have enough votes to do it. Even if they did, this would be a breach of the European Convention of Human Rights. It is one thing if the state is not making a positive step of granting same-sex couples equal rights, but a whole another thing if the state deprives those couples of the rights that they already have from 1 January 2016. ECHR case law is quite clear on this and because its jurisprudence is part of Estonian constitutional law, the annulment of the Registered Partnership Act would be clearly unconstitutional. Thus the President would not confirm such an annulment and if there is a referral to the Supreme Court, it would simply confirm the ECHR case law so that the law cannot be annulled.

The only constitutional option to get rid of registered partnerships now is to open up marriage, which in Estonia is a secular institution and constitutionally not limited to a man and a woman (as it is in many other Central and Eastern European states) or offer another, equally good or better solution (which is why a watered down version cannot work as a compromise). In that case, registered partnerships could be slowly phased out (i.e. people could choose to convert them to marriage and no new partnerships would be registered). There is some support for that option, but it is not clear how serious it is. It would surely be pragmatically the best way out of the whole situation.

Further reading:

Overview of the Civil Partnership Act at Estonian Human Rights Centre website.

Full text of the Civil Partnership Act in English.

Pelz, Michael. “Europeanization, Party Systems, and LGBT Rights: The Cases of Estonia, Latvia, Montenegro, and Serbia.”