The Swiss criminalisation of homophobia will not end discrimination, but is likely to make it more difficult to talk about it.

On February 9, 2020, Swiss voters approved the expansion of the existing law against racial discrimination in public to include sexual orientation. Article 261bis of the Swiss penal code has significantly shaped how racism is understood in Swiss public discourse. Criticised for its restrictive legal application by national and international anti-racist actors, the law allows Switzerland to keep face as a signatory of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

In 2013, the Swiss parliament and government followed a parliamentary initiative to extend the article to include sexual orientation. The move seems counter-intuitive in a country that has been resisting the LGBTQ movement’s demands for the same rights regarding marriage and reproductive rights – or it could be read as a good bargain, compared to granting same-sex couples full civil rights.

However, the move, which would have bolstered the Swiss Government’s carefully curated international image, backfired. Far-right actors used their direct democratic powers to halt the decision and force a popular referendum on the matter. While the opponents saw yet another curb on their constitutional right to free speech, proponents hailed the new law for its potential to end homophobia. 

Bargaining with civil rights

In the wake of Switzerland making international headlines for the introduction of the minaret ban or deportation laws that violate international law by popular vote, the Swiss Government has invested much in its global image as a modern and progressive country. The extension of 261bis seemed like a strategic move that would not only allow Switzerland to climb the International Lesbian, Gay, Bisexual, Trans and Intersex Association’s world rankings but that would also appease the LGBTQ movement’s demands for reproductive rights. 

While in 2009, the Swiss Government rejected the extension of the penal code to include sexual orientation as “unnecessary”, this followed a similar parliamentary initiative in 2013. Although it could be concluded that the Swiss Government had a sudden change of heart regarding the protection of sexual minorities, evidence suggests otherwise. In 2012, the Government passionately dismissed a motion that demanded the right for same-sex couples to adopt. The Government’s support of the extension of 261bis has thus to be seen in the context of the law’s restrictive application and the Government’s reluctance to make the changes that would end formal discrimination against LGBTQ persons.

When in 2019, far-right actors launched a referendum against the extension of the penal code, they created a situation where the Government was re-staged as a progressive actor and champion of LGB rights. As the opponents ran their campaign based on a censorship argument, the pro-campaign and the Government embraced the suggestion that the law provides real protection, despite its limited scope.

One week before the referendum and bolstering its new image as LGB-friendly, the Swiss Government announced that it would end discrimination against same-sex couples by introducing “marriage for all”. The fact that this proposal still rules out adoption and access to sperm donation was upstaged by the general euphoria for the re-branded anti-homophobic Swiss state. The referendum’s pro-campaign not only assisted the Swiss government’s self-fashioning as anti-homophobic, but they also showed little concern for the side-effects 261bis has had on anti-racist struggles.

Illiberal liberal debates

In their campaign for the inclusion of sexual orientation in the existing law against racial discrimination, the proponents had shown a profound disconnect with those formally protected by 261bis. The campaign, which was led by LGBTQ organisations, left and liberal political actors, did not actively include anti-racist actors who could have helped them to understand the effects the law has had on struggles against racism.

In general, Swiss left and liberal political actors have a poor track record of including people of colour in public debates on racism. Swiss activists of colour have had to take backseats in struggles that have included the ratification of ICERD in the 1990s or the more recent anti-immigration initiatives brought forward by the far-right Swiss People’s Party. The work of activists of colour is largely unknown and rarely acknowledged by left and liberal political actors.

It was therefore not surprising that the debate about the extension of 261bis took place without the involvement of anti-racist actors. This is particularly problematic because there have been legitimate concerns regarding the effectiveness of the law. My own research has shown that 261bis’ restrictive legal application and the suggestion that the article is in conflict with the constitutional right to free speech has considerably informed the idea that racism is a marginal phenomenon in Switzerland. 

Anti-discrimination legislation has the potential to define how discrimination is negotiated in public discourse. When a law is only enforced in “extreme” cases or when discrimination is reduced to an inter-personal conflict, where the perpetrator has to be proven as ill-willed, crime statistics can easily be used to prove that there is no systemic discrimination. This is particularly problematic in Switzerland, where racist and homophobic statements in public discourse have a tendency to be passed off as legitimate democratic opinions as the debate leading up to the referendum demonstrated.

The publicly funded television format ARENA platformed far-right politicians such as former MP Oskar Freysinger who declared that same-sex couples who have children are not only unnatural and harmful, but that lesbian mothers steal children from “fathers”. In another episode, Lisa Leisi from the no-campaign professed on camera that it should be legal for service providers to deny services to Jewish persons, as anything else would infringe economic freedom. The idea that statements like these are legitimate opinions in a ‘democratic’ debate shows the dangers of a democratic culture that has no conception of bigotry. The fact that none of these statements, uttered in a television debate, would classify as discrimination under the law poses serious questions about what is considered to be a discriminatory public statement and how such statements can be problematized if democratic discourse fails to do so.