Europe, Headlines, Human Rights

RIGHTS-PORTUGAL: Gays Demand Repeal of Discriminatory Law

Mario de Queiroz

LISBON, Sep 12 2003 (IPS) - Portugal is one of the only European Union (EU) countries that still have laws on their books that discriminate against homosexuals, running counter to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Opus Gay, a Portuguese organisation that fights for the rights of homosexuals, accused local authorities this week of violating the Portuguese constitution and the European Convention for the Protection of Human Rights by keeping a penal code article on the books that establishes a discriminatory age of consent for sexual relations between homosexuals.

The group complained that Article 175 of the penal code is discriminatory because it criminalises ”sexual relations of mutual consent between minors under 18 and adults of the same sex, and establishes different treatment for heterosexual and homosexual adolescents.”

While most EU nations have struck down laws that discriminate against homosexuals, Greece, Ireland and Portugal still have discriminatory age of consent laws, as do Albania and Bulgaria outside of the European Union, according to Nico Beger, a representative of the European branch of the International Lesbian and Gay Association (ILGA).

An Austrian penal code article that was recently repealed also established different ages at which adolescents could legally begin to have sexual relations, setting an earlier age for heterosexuals and lesbians than for gay men.

Article 209 of Austria’s penal code set a minimum age of 18 years for homosexual relations between men only, compared to a general age of consent of 14 for heterosexuals and lesbians. It provided for prison sentences of between five and six years for gay or bisexual men who broke the law.

Although article 209 was abolished last year, landmark decisions were handed down by the European Court of Human Rights in January condemning Austria for years of criminal persecution of gay and bisexual men.

The rulings ordered the payment of compensation to several young men as ”redress for distress and humiliation” suffered by being brought to trial and having intimate details of their private lives paraded out in public.

Cyprus and Romania, candidates to join the EU in 2004 and 2007, respectively, have also revoked laws that criminalise same-sex sexual relations.

But Portugal still has a discriminatory age of consent law. In late August, Opus Gay sent a document to the Justice Ministry demanding the repeal of penal code article 175, which they said ”heightens the negative stigma frequently associated with homosexuals.”

Opus Gay maintained that the law ”is unconstitutional because it criminalises all cases of consensual homosexual sex between an adult and an adolescent, while in the case of heterosexuals it only provides for punishment in cases in which it was proven that the adult took advantage of the minor’s inexperience.”

Pediatrician Jaime dos Reis told IPS that contrary to popular belief, ”the sexual identity of an individual already begins to appear in childhood…and is fixed in adolescence.”

Américo Baptista, director of the department of sexology at the Lusophone University in Lisbon, agrees. He said that in setting the age of consent for sexual relations, ”the fact that sexual orientations appear in adolescence does not mean that they aren’t already predetermined.”

Baptista criticised Portugal’s penal code, which he said is marked by ”discrimination against homosexuality, when the only truly relevant aspect (in legal terms) is whether sexual relations have been agreed to by mutual consent.”

The question of the age of consent ”is a social and ethical issue that is not really the terrain of experts,” said Baptista.

Sociologist Pedro de Vasconcelos, another leading expert on the issue in Portugal, defended the document that Opus Gay sent to the government, describing the penal code as ”clearly discriminatory” and criticising its ”negative view of homosexuality.”

In statements to the Lisbon newspaper Público on Sep. 1, a few days after Opus Day sent its report to the Justice Ministry demanding the repeal of article 175, Vasconcelos said that in Portugal there is ”growing difficulty in discussing and dealing with the sexuality of the young.”

Simply talking about sex is shocking to many, and spawns ”histrionic and hysterical” responses, said the psychologist, who recommended that the state ”take great care and use common sense when dealing with people’s sex lives.”