Report on the legal and social situation of lesbians and gay men in France

February 1998, draft version

This text is a contribution to the report ILGA Europe is drawing up for the Equality for lesbians and gay men - a relevant issue in the civil and social dialogue project with the European Commission.

LEGAL SITUATION

a) Criminal Law / Penal Code

The French Revolution dropped ancient sodomy laws in the criminal code of 1791 ; the Napoleonic Code of 1810, which influenced many European countries, did not have any reference to sodomy or same-sex relations.

This situation remained until World War II, when the Vichy government, under the motto "Travail, Famille, Patrie" wanted to eliminate jews, communists, freemasons, gipsies and homosexuals. Therefore, from 1942 to 1981, male homosexuality has been criminalized, mainly under the form of discriminatorily ages of consent: over 21 until 1978, over 18 since then for homosexual relations, over 15 for heterosexual relations since 1945. It was even classified as a social plague by a law issued in 1960 (de Gaulle's era), along with alcoholism.

Only the socialist government, elected in 1981, completely decriminalised homosexuality in 1982-85. The age of consent is now set to 15 for everybody, but consent is considered inexistant between a minor (under 18) and a person in a position of authority [Code pénal, Article 227-25, 27].

There is no special provision concerning lesbians or gay men.

b) Anti-Discrimination

In 1982, a new housing law repealed the old requirement that tenants must live as "bons pères de famille". In 1983 [law 83-634, July 13, 1983], the law requiring civil servants to have "bonnes moeurs" (right way of life) was also cancelled.

Lastly, any discrimination in employment or service, public or private, on the basis of sexual orientation has been prohibited since 1985 [Code pénal, Art. 225-1,2]. Nobody may be rejected from a recruitment procedure or dismissed on grounds of his or her sexual orientation; a recruitment procedure may not use such information [Code du travail, L. 122-45, L. 121-6]. An emergency procedure, when a violation of individual liberties on the workplace is observed, is created in 1992 [Code du travail, Art. L. 422-1-1].

Hate speech : an example

Protesting against the homophobic writings of former bishop Elchinger in the Dernières Nouvelles d'Alsace ("to accept homosexuality is to regress towards animality"), activists disrupted a mass in Strasbourg cathedral. They were arrested by the church police, prosecuted by the public attorney and fined, according to a local law (still written in German and dating from 1871), by the Court of Appeal, Colmar, January 1998. On the other hand, neither the bishop, nor the judge who said ex officio that "the catholic church has a right to condemn homosexuality, it has the very duty to do it" were prosecuted for hate speech.

Actually, there is no law protecting gays and lesbians from hate speech on grounds of their sexual orientation. Only individuals or bodies having a juridical constitution are protected by an anti-diffamation law, but the French jurisprudence cannot obviously consider "the homosexuals" as such a body. On the other hand, hate speech on grounds of racial or ethnic origin, nationality or religion, is forbidden by law [Code pénal, Art. R-624-3, 4, 7].

c) Family and Partnership law

Common-law partners

Non-married couples (cohabitants, or common-law partners), qualified as "concubins", have been granted some benefits, on a more socio-economic than legal basis.

However, in 1989, the "Cour de Cassation" ruled that this qualification may only be applied to people living in a "marital" way, i.e., to people who could marry but did not, which excludes homosexual couples. Since then, this jurisprudence has not been reversed. At a lower juridical level, in 1996, the Belfort Tribunal granted a financial reparation to a woman who had lost her 20-year female companion in a car accident, arguing that a legal binding between the two women was not required.

Some 300 towns issue a symbolic common life certificate for same-sex couples, which has no legal value, but can be useful for everyday life (since 1995).

Marriage

Although the civil code does not specify explicitly that civil marriage can only be pronounced between a man and a woman, it does so implicitly [Article 75], and jurists consider quite unanimously that the present law is not intended to same-sex couples. As a result, same-sex couples are barred from getting married.

As the church is only allowed to "marry" married couples, there may not be a religious marriage of same-sex people; instead, some protestant confessions perform blessings of same-sex couples.

Civil/social union contract

The first law proposal concerning a registered partnership dates back to 1990. Two years later, the "Contrat d'Union Civile" (CUC) was the aim of a new law proposal signed by eight deputies; rewritten and named "Contrat d'Union Sociale" (CUS), broadly supported by the gay and lesbian and AIDS-related organizations, it is, for the first time, included in the agenda of the ruling coalition resulting from June 1997 elections. It might be renamed "Pacte d'intérêt Commun".

Open to any pair of people sharing a project of life, this contract would be concluded before a public officer ("officier d'etat civil", such as any mayor), and dissolved by the death of one of the parties, by a common statement of the parties before the officer, or by a court decision in case of dissent; the parties commit to mutual material and moral support. The contract would grant some benefits: social security, employment, taxation, inheritance, pension rights, housing. It should not specify anything about lineage, adoption or custody.

Parenthood

A poll Têtu-BSP showed that about 7% of gay men and 11% of lesbian women actually have children, mostly from a previous heterosexual relationship. After a divorce or separation, gay men and lesbians face real discriminations in maintaining custody and visiting rights for their children.

Both married couples and (since 1966) singles are eligible for plenary adoption [Code civil, Article 343, 343-1, 345-1]. The first step is to apply for an agreement of the local administration ("DDASS"). There have been cases of the application of a single man or woman which were rejected on the exclusive grounds of his or her homosexuality; there have been also cases of agreement of homosexual people who did not declare their sexual orientation; there is no known case of an agreement of openly homosexual people. Non-married couples (even heterosexual partners) are not eligible for adoption [Code civil, Article 346].

Since the Bioethics law of 1994 [L.94-653, 29/07/1994], artificial insemination has been available only to married couples or (heterosexual) "concubins" [Code civil, Article 311-20]. The same law forbids any private agreement allowing a woman to bear a child for another woman. [Code civil, Article 16-7]

Asylum and immigration

After the World War II, a text protecting people from persecution due to their membership to a social group was adopted (1945 ordinance). These social groups wre intended to be gypsies, jews, etc. but homosexuals have never been included. However, France has never recognized "social groups" because citizenship is an universal value and the only group existing in Law is the national community. Therefore, when asylum is granted to somebody persecuted due to its membership to a social group, France always consider it as a political asylum. This situation explains why homosexuals that are persecuted only on grounds of their sexual orientation have never been granted asylum in France. The only known cases concerned homosexual people who were active members in an organization (including a lesbian & gay group). On the other hand, binational couples benefit family reunion only if they are married. This implies that homosexual relationships cannot lead to any kind of immigration rights.

This situation is now getting different, because Jospin's socialist government decided to change the rules for asylum as well as for immigration. A new kind of asylum is being created : territorial asylum. This asylum includes a right to "family and private life". According to recent talks between the Ministry of Interior and the gay socialist group HES, the government's will is to include homosexual relationships in that right to "family and private life", and to consider that people persecuted on the grounds of their sexual orientation have a right to territorial asylum.

The "Contrat d'Union Sociale" (CUS), that should be voted in 1998, will give a legal base to these declarations of good will.

SOCIAL SITUATION

France, as a latin catholic country, has a male heterosexual-centered society. Except in some gay neighbouroods, public evidence of homosexuality, still a taboo, meets social disapproval, but usually no violent reactions. Attitudes are evolving: for 67% of people, homosexuality is now an acceptable life style and most people agree to give lesbian and gay couples some benefits. Nevertheless, 63 % are still shocked when they see two boys or two girls kissing in the street. This pervasive homophoby is fostered by a complete illiteracy in matter of sexual orientation: G/L-positive education is still rejected as proselytism by conservative people. In addition, lesbians have long been facing a backward society, regarding women.

However, French are known to display a strong individualism, which implies an uncoupling between private and public lives, enforced by the law [Code civil, Article 9]. As a consequence, there is no media harassment of public figures for their love affairs, be they straight or not, and it is relatively easy to be gay or lesbian on the condition you keep silent about your sexual orientation. This individualism is a facet of the apparent tolerance which can be found in France, and explains that coming out explicitly is so uncommon. Only in January 1998, a member of Parliament, although known to be gay for a long time, came out on a national radio, saying: "I am homosexual".

On the other hand, the idea that homosexuals might form a definite minority whose specific rights should be protected is hardly conceivable: one nation, one people. A practice like that of US' Equal Opportunity Act, in favor of such minorities, would be termed discriminatory by most French, including those concerned.

Organizations

Gay and Lesbians organizations must compensate for the deficiency of adequate social policies. Most of their activities are support and counselling, entertainment, or defense of the rights and fight against any expression of homophobia. Usually non-communautarist (i.e., aiming at the social recognition of lesbians and gay men as citizens, not as members of a specific community), they work together in many towns, fighting against all kinds of discrimination through social, political or cultural actions.

There does not exist a national organization assuming a representative role for homosexual people in France. The very concept of a gay and lesbian community is not fully recognised. Instead, there are specialised organizations: "Gemini" (federation of youth organizations), the coordination of the French Pride events organizers, the coordination of lesbian organizations, "David & Jonathan" (christian federation).

The first Gay Pride march occurred in 1977. The Lesbian & Gay Pride events, now yearly scheduled in June, and well-known from the general public, follow both the French tradition of political demonstrations and the international partying style. For several years, they have been given a political theme: international solidarity (1995), the social union contract (1996), a full european citizenship (1997), the human rights (1998). Since 1992, the march has seen each year twice as many participants as the previous year. France presently is the European country where the largest number of Pride events occur, twelve; these events benefit most lesbian and gay organisations, giving them a broad visibility and a springboard for further actions, namely to promote a positive information on homosexuality and to fight discrimination and social exclusion. In addition to these events, lesbian and gay films and other cultural festival are organized in several cities.

There exist about nine gay and lesbian centers, and several help lines, including Écoute Gaie, the line operated by SOS Homophobie and Ligne Azur (for young people).

Homophobic violence and attitudes are monitored by "SOS Homophobie", a national organization whose goals are to concentrate information about discriminations on grounds on sexual orientation, to broadcast this information, and to prevent that discriminations occur through appropriate actions.

On the political side, several parties now have a related lesbian and gay group, either structurally (Greens, Communist Party), or independently (HES, RGL).

The first lesbian & gay youth group were created in the beginning 80's. Since 1992, the developpement of lgb-youth groups has increased and a major change can be noticed: there are now a lot of lgb-youth groups outside of Paris. Due to historical reasons, this developpement was concomitant to the creation and developpement of groups of parents and friends of lesbian & gay (these French equivalent to the American P-Flag groups are called "Contact"). There are now about twenty glb-youth groups in France, assembled in the Gemini federation, and there are five Contact groups for parents.

The next revendications of gay youth groups in France include a rewriting of curricula in schools (sexuality is still presented as a biological phenomenon, the complexity and variety of human sexualities is excluded from schools), and the developpement of "counselling centers" (information centers on sexuality, health, and legal rights).

Media

Generally, except in a very few far-right papers, there is no hate speech against homosexuals. Daily papers and news magazine give a broad coverage of the lesbian and gay pride events in June, and often have columns for homosexual issues, in the political, social or cultural pages. Recently, some tabloids, usually mute on these issues, began to speak rather freely of the private life of a few actors or singers, "openly" gay, which is a novelty.

Members of lesbian and gay organizations contribute to the homosexual visibility as they are now often invited on the TV programmes, instead of the various "experts" called previously to talk about "the homosexuality, this painful problem" (title of a famous radio programme in 1971, where the first public appearance of lesbian and gay activists occurred).

There is also a gay or lesbian press, with several titles sold through the regular distribution, and local free magazines. Lesbian and gays are also present on the Internet, through non-profit organizations, media groups and businesses; the Internet has become a tool of choice for the organizing of collective actions and the concentration of information.

Life styles

Life styles are very diverse: long-term same-sex relationship, celibacy, multiple sexual partners and convenience marriage, all non exclusive.

Actually, marriage has long been used by gays and lesbians: either as a "normality certificate", or to give them the ability to become parents, either biologically, or, for some, through the paternity presumption in favor of the mother's husband. So doing, they have sacrificed their homosexual feelings to social norms or to their parenthood desire.

Nowadays, a significant minority of gay men and lesbian is demanding that marriage be open to same-sex couples, as a mere application of the equality principle of the French republic.

Strongly desired by a growing number of homosexuals, parenthood is meaningfull through adoption, artificial insemination or the co-parenting of children born to one partner through earlier heterosexual relationships. Although these modalities are limited by the French law, some try to circumvent it, for instance going to Belgium in order to get an artificial insemination.

GOOD PRACTICE

G&L organisations ask for studies and campains on homosexuality in families, schools and work places. They also want that the Government supports sociological studies on L&G youth suicide. Recently, the Mag (Mouvement d'Affirmation des jeunes Gais et lesbiennes - gay youth affirmation movement) has obtained from the youth ministry a preliminary study on suicide among young lesbians & gays.

Social recognition is also political recognition. G&L groups which are fighting for G&L rights try to be acknowledged as representative by politicians and other social actors.

In 1996, G&L groups have lobbied mayors of many towns so that they register homosexual couples; the result was that more than 300 of them have done it. This was a success who had put forward the issue of the social union contract. The long-term action towards the recognition of homosexual couples through the adoption of this contract, is about to reach its goal in 1998.

The last years have shown an increasing cooperation with trade unions, human rights organizations, student unions and political parties. A positive effect is now visible in the internal life of some of these organizations, for instance within the trade unions, concerning the attention given to lesbian and gay issues. Gay and non-gay organizations show often together when they fight for the human rights and against social exclusion whatever its reasons.

Unfortunately, when organizations are successful in getting their projects granted by public agencies, at the national level, it is always through the public health budget, for AIDS prevention, and not on other cultural or social budgets. However, some municipalities, but Paris, begin to support local structures on the sole grounds of their social role (Strasbourg, Nantes).

The Lesbian & Gay Pride association is regularly received at the minister's cabinet level, often introducing other organizations on such occasion. Although they produce more a general acceptation of homosexuality than specific results, these talks have their utility.

However, it is still very rare that lesbian and gay organizations have been acknowledged at an institutional level. An outstanding case should be singled out. The MAG, Paris lesbian & gay youth group (which initiated the Fédération Gemini and the first Contact group), has applied for a label delivered by this Ministry for Youth & Sports for four years. In November 1997, it obtained a promise from the Minister herself to get this label, and was appointed as a member of the National Council for Youth; in the same way, other lgb-youth groups are now members of local Councils for Youth.