10 November 2015: Activists urge the Rada to pass the anti-discrimination legislation. (c) Nazar Furyk / Demotix.Last Thursday, Ukraine witnessed a historic event: under the defiant hashtag #DontFuckWithUs, the concepts of 'gender identity' and 'sexual orientation' made their first appearance in the country's legislation, and anti-discrimination provisions were written into Ukraine's labour laws.
The exact process of how this happened, though, makes for a far more interesting story.
A long story
The introduction of an anti-discrimination amendment to existing Ukraine's labour laws is just one of the demands made by the European Union in negotiations over visa-free travel within Europe, and is referred to in the European Commission's fifth report on Ukraine's visa liberalisation progress to the European Parliament and Council.
The amendment is, of course, a necessary step, but it won't solve everything. We also need solid interpretation and implementation of anti-discrimination provisions in accordance with European standards, allocation of resources in the fight against discrimination, development of a government strategy, training courses for public officials, judges and prosecutors, organisation of public campaigns and dialogue with representatives of national minorities.
Maidan and its aftermath were supposed to lead to these 'pro-European' laws becoming reality, but this didn't happen
These discussions might sound strange to residents of the EU, but similar demands have been made to other countries in the process of visa liberalisation (Moldova) and potential membership (Serbia).
May 2013: Kyiv holds its first pride event. (c) Stas Kozlyuk / Demotix.Indeed, the 'anti-discrimination' laws go back to the time of Viktor Yanukovych: Mykola Azarov's government worked on them in 2013. But these attempts to amend the labour laws were unsuccessful. The conservative wing of the Party of Regions, Yanukovych’s allies, rebelled: they refused to vote for the 'sodomite laws' and, in the process, stirred up homophobia in Ukrainian society.
Social conservatism went on to combine with concerns over the country's 'geopolitical' direction, and society became more polarised as a result. This process culminated in the pro-European protests of November 2013, which later led to the departure of Yanukovych several months later in February 2014.
Maidan and its aftermath were supposed to lead to these 'pro-European' laws becoming reality, but this didn't happen. With conflict raging in the east, the new government was afraid of introducing an additional source of irritation into the public sphere—especially one that would play into the hands of conservative Russian propaganda. The government made these concerns clear to the EU, and Ukraine’s European partners reacted with understanding.
The request for anti-discrimination legislation didn't disappear, though, and the deadline for passing these laws continued to make its silent approach.
‘God forbid that happen, we won’t ever support that’
Meanwhile, as the government noisily conducted its 'pro-European reforms', a new draft Labour Code made its way into Ukraine's parliament. This bill, introduced by four deputies from pro-presidential and opposition factions (including parliamentary speaker Volodymyr Groisman), was, in fact, a failed Yanukovych-era project designed to restrict the rights of trade unions.
On 5 November, these labour laws were passed on the first reading. For the parliamentary deputies who supported it, this new Labour Code symbolises ‘necessary reforms’, a departure from Ukraine’s Soviet legacy (the current laws date back to the 1970s) and European integration. However, the only thing that was truly connected to the project of European integration—the ban on discrimination of workers on LGBT grounds—was actually absent from this document.
Instead, the Verkhovna Rada, Ukraine’s parliament, gathered to vote on the anti-discrimination amendment to the current labour legislation, but the very mention of ‘sexual orientation’ caused commotion from the deputies. Only 117 deputies (out of a required 226) voted for the amendment.
These results enraged the pro-European intelligentsia, and representatives of the Kyiv middle class picketed the Rada on 10 November—the final day for voting on the 10 ‘visa-free’ laws ahead of European Union negotiations. This time, however, only a few of the required laws were passed. (For example, a law to expedite judicial examination of deportation cases.) The anti-discrimination amendment was not supported. It took six rounds of voting to include it on the Rada’s agenda, and in the end it only received 207 votes.
The pro-reform agenda was not to be halted, however, and the deadline for passing the amendment was extended. Then, on 11 November, Petro Poroshenko announced that, though he loves his wife and children and supports traditional values, the Rada should protect people from sexual and gender discrimination. Ukraine’s social media had much to discuss, though, as Egor Sobolyev, a deputy from the ‘progressive’ Samopomich party, voted against the amendment, and was run out of his home by his wife as a result.
The very mention of ‘sexual orientation’ caused commotion from the deputies
The next day, 12 November, liberal voters gathered once again outside the parliament to demand the Rada voted for the anti-discrimination amendment. The pressure outside coincided with pressure from pro-Poroshenko forces inside as Volodymyr Groisman, the speaker, continuously called on the room to vote.
After the seventh attempt, Groisman took the floor himself: ‘You and I support family values. I’ve heard some rumours that some kind of same-sex marriage might be introduced in Ukraine. God forbid that happen, we won’t ever support that.’ Groisman then promised the deputies that a special ‘family issues’ ombudsman could be appointed to the government.
Then, following a ninth round of voting, the anti-discrimination amendment was passed with 234 votes.
The amendment itself, reprinted so many times now on the Rada’s photocopiers, is a purely declarative norm. It doesn’t guarantee any real protection of labour rights for LGBTQ+ people.
An employer who wants to sack an employee can find any number of credible pretexts to do so. It’s simply impossible to prove in court that the reason for firing (or not hiring) an individual is discrimination. And both the supporters and opponents of this legislation understand that. By voting for a purely technical norm, they merely declared their position on questions of ‘world view’.
November 2013: The red-and-black flag, associated with Ukraine's nationalist insurgents, flies next to the country's official flag on Maidan. (c) Ivan Bandura / Demotix. Many deputies did so sincerely: politicians are also people, and they’re no strangers to conservative prejudice. One typical example is Volodymyr Ariyev, a supposedly ‘young, pro-European, and progressive’ member of the Petro Poroshenko Bloc, who made the following confession on his Facebook page on 5 November: ‘I have knowingly burdened my soul with sin and voted for the amendment banning the discrimination of sexual minorities upon hiring. You may wipe your boots on me, but that was a condition for introducing the visa-free regime with the EU.’
What happened in the Rada is, by and large, the consequence of the populists’ battle for popular support, which has only become more heated during and after the local elections in October.
Playing on conservative voters’ traditionalism isn’t a new phenomenon in Ukrainian politics. It did reach a new level prior to Maidan, though, when society was gripped by moral panic over the approach of ‘EuroSodom’. But this doesn’t mean that, in contrast to the ‘pro-Russian’ voters, ‘pro-European’ politicians and voters actually shared the values of secularism and social progress.
This can be seen in the rise of the Samopomich party, headed by Andriy Sadovyi, mayor of L’viv. Declaring his commitment to ‘pro-European liberal reforms’, Sadovyi has become one of the most popular politicians in the country if you believe the opinion surveys, and, for many liberals, Sadovyi personifies the hope for a new generation of enlightened politicians.
At the same time, Samopomich is a socially conservative and religious political party. Sadovyi himself recently forced the resignation of a public official in L’viv who publicly criticised the role of church organisations in schools. Indeed, it was Samopomich that scuppered the anti-discrimination amendment: it could be voted on successfully only after the parliamentary fraction unwillingly changed its position. The anti-discrimination vote, it should be said, took place just before the second round of mayoral elections in L’viv, where Sadovyi faced off a candidate from the far-right party Svoboda, and so Sadovyi was tasked with winning over sympathies in his hometown.
Playing on conservative voters’ traditionalism isn’t a new phenomenon in Ukrainian politics
The position of the protesters outside the Rada, however, was rather more ironic: many of them were forced to protest against the political party they’d so enthusiastically supported 12 months ago during Ukraine’s parliamentary elections.
There is a powerful desire for ‘reforms’, promised more than a year ago, in Ukrainian society. B Lucava / Flickr. Some rights reserved.In effect, this was a repeat of the rise and fall of Svoboda, which owed its success in the 2012 parliamentary elections to that same demographic—the liberal urban intelligentsia—who initially saw that party as a symbol of their own ideals, only to spectacularly lose faith later. These people also supported Right Sector, the right-wing paramilitary group that rose to the fore during Maidan, and now, of course, Samopomich. This cycle of adoration and disillusion is likely to continue until office workers in Ukraine’s big cities learn how to read party programmes instead of just following them on television.
Moreover, these protesters weren’t as concerned with human rights as they made out to be. The liberal slogans shouted outside the Rada merely screened a desire for the coveted visa-free regime. The organisers of these demonstrations, aimed, in principle, to protect LGBTQ+ people from discrimination, weren’t so pleased to see the targets of their protection actually arrive at the protests. A heated discussion ensued, and the organisers requested that people leave their rainbow flags at home and in no way hint at their identity.
This conflict revealed that certain ‘liberals’ and ‘rights defenders’ are interested in human rights only to the extent that it helps them achieve private, utilitarian interests
This conflict revealed that certain ‘liberals’ and ‘rights defenders’ are interested in human rights only to the extent that it helps them achieve private, utilitarian interests. The outrage at the actions of the parliamentarians was caused largely by their failure to observe EU demands, rather than discriminatory practices.
‘To say that after that I didn’t felt any happiness after they adopted the law – is to say nothing,’ says Olena Shevchenko, an activist for LGBT organisation Insight. ‘In fact, I felt miserable and frustrated. I just realised that now, thousands of people in front of TVs strengthened their negative attitude towards the LGBT community. They just said - it is not normal and will never become the norm, we will do everything possible for that! And yes, need to be honest; this law was not adopted because of our pressure. It was adopted because of international pressure.’
Meanwhile, two power blocs continue to form in Ukrainian politics: the right-liberals on the side of the president, who promote a moderate line on domestic politics and European Union cooperation, and religious nationalists, relying on their ability to mobilise the conservative and radical electorate. Thus, the news that UKROP, a political party connected to Igor Kolomoisky and Right Sector, supported Samopomich candidates in big towns in the south like Krivyi Rih and Mykolaiv, and, in turn, received support in Dnipropetrovsk, is hardly surprising.
For left wing voters oriented towards parliamentary politics, it now makes sense to ally with the liberals, who have been searching for a force to realise their programme for several years, each time falling into disillusion. A social democratic reform party, with left-liberal and patriotic leanings, would respond to these desires far more than Svoboda or Samopomich.
Last but not least: the story of Ukraine’s new Labour Code. Now, after the anti-discrimination amendment has been added to the current labour laws, it is highly likely that the draft of the new Labour Code will be buried amidst a raft of more pressing laws.
Voices in support of the new Labour Code among interested parties and organisations are hardly audible. Two of the biggest trade union federations signed a letter against the bill’s second reading, and threatened to launch their mechanisms of social dialogue to prevent it. The joint organ of representation for employers, the Federation of Employers of Ukraine (FEU), has also traditionally abstained from lobbying the new Labour Code.
For the past six years, the FEU has criticised the draft law for its excessive ‘socialist’ content and irrelevance, threatening to introduce its own draft instead. They have yet to present one, however, and the position of employers, in practical terms, comes down to burying the current draft of the new Labour Code.
There is a certain demand for ‘reforms’ in society, and now any law can be served up as reformist
It’s now clear that the strategies successfully employed by left groups to block the Labour Code in the past are no longer viable in post-Maidan Ukraine. Before, they relied on the media: left-wing activists impressed their opinion of the new Labour Code as a harmful initiative of an unpopular government on journalists who didn’t have their own take on the topic of labour legislation. A certain civic consensus on the Labour Code emerged, and its lobbyists had to contend with it.
Protests also helped: activists tried to prevent the Labour Code from even being examined, and they often succeeded. Frustrated parliamentary deputies would just walk out, claiming that they’d never planned to look at any Labour Code in the first place (regardless of its presence in preliminary documents). When this new legislation was bereft of influential lobbyists, this was enough to tip the balance in favour of not passing the Code, even with the passive position of the trade unions.
Today, the legislative process in the Rada has become rougher and more unpredictable: as we can see, the president can push through laws by less than salubrious means. With the conflict in the east, the media has more ‘pressing’ topics to deal with than labour legislation; and the former critical attitude to any government initiative has also gone.
Instead, there is a certain demand for ‘reforms’ in society, and now any law can be served up as reformist. Finally, the very act of street demonstration requires far more responsibility than before: society is more tolerant of violence, and you have to weigh up the risks stemming from political opponents and the police, who react nervously to any ‘unsanctioned’ activity after the incidents with the grenades outside the Rada.
In effect, if influential political forces are interested in passing the Labour Code, then they’ll have a better chance of getting it through parliament than previously. But the question is, are they interested?
Broadly speaking, employers in Ukraine don’t require legislative change—partly because they can rely on different instruments to guarantee their interests, partly because they wish to preserve their corporativist scheme of relations with employees, and partly because the proposed changes aren’t radical enough for them.
Truly progressive demands should concentrate on building a grassroots labour movement that would want and be able to protect itself regardless of what the laws say
Over the years of struggle against the new Labour Code, it has been significantly improved thanks to the pressure of activists. Today, the main points of contention include permission to sack single mothers, monitor employees by video and ignore the opinion of trade union organization when an employee is fired. However, in practice, CCTV monitoring already exists in the workplace, and trade unions—even in places where they exist—practically don’t use the wide powers they have under current legislation.
Thus, the current laws is important mostly as a symbol of how the state, at least in theory, recognises the primacy of workers’ rights, rather than an instrument to protect those rights in practice. Truly progressive demands should concentrate on building a grassroots labour movement that would want and be able to protect itself regardless of what the laws say, rather than protecting the old law (which, it must be said, is important in terms of its symbolism).
Examples of this kind of movement growing might include informal protests and ‘wildcat strikes’, which have not been organised in accordance with the law or union leadership whatsoever, but that have achieved practical results in eastern Ukraine.
There is one group that could seriously attempt to push through the new Labour Code, though: the same ‘leaders of opinion’ who previously called on Ukrainian society to vote for Svoboda, and then Samopomich. The liberal patriotic intelligentsia could easily take up the new Labour Code as a ‘liberal European reform’ and a ‘move away from Soviet norms’.
Ukrainian society has a powerful desire for ‘reforms’, which were promised more than a year ago. But no one has ever spoken about the content of these reforms. (Best case scenario: the reforms should ‘completely break with the Soviet past and bring the country closer to “European” standards.’) So far, the only successful reform according to public perception has involved the police.
Passing a law that will affect little in real life, but act as an inspiring symbol of renewal and reform, would meet the requirements of the authorities. And so, if the new Labour Code is passed, it won’t be the result of an attack on workers’ interests, but the result of a mediated and simplified perception of Ukraine’s civic and political life.
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