Johanna Westeson - The ICHRP

The three criminal provisions included in the Act are incitement to hatred, discrimination,
or violence (Art 22), prohibition of discriminatory conduct by civil and public servants
(Art 23), and the introduction of aggravating circumstances for certain hate crimes (Art
33).
One potentially problematic point is to be found in Article 11, which allows for direct or
indirect ‘distinctions,’ when these are regulated by other legislation. This provision has
been criticized for allowing the law-maker to opt out from the obligations under the antidiscrimination
Act, just by creating another law that goes against it. 94
Bulgaria adopted a comprehensive anti-discrimination law in 2003, 95 which integrates all
EU equality directives, including Directive 2000/78/EC. It is commendable in its wide
scope and its mentioning of international obligations, including human rights obligations.
The law bans direct or indirect discrimination on many grounds, including sex and sexual
orientation, but it also places the right to non-discrimination in an international context, by
specifically expanding its list of protected grounds to “other grounds, established by the
law, or by international treaties to which the Republic of Bulgaria is a party” (Art 4). The
prohibition of discrimination applies to any legal right of all, as established by the
Bulgarian Constitution and the laws of Bulgaria (art. 6). It does not distinguish between
public and private employment, education, or services. Multiple discrimination is
mentioned specifically, as discrimination on more than one of the grounds (additional
provisions, § 1.11).
The law established a body (Commission for protection against discrimination) responsible
for providing protection under all grounds covered by the law, including sexual orientation
(arts. 40-49). It has wide-ranging powers related to investigative, legal, preventative, and
remedial work.
A fact that raises concern for the purpose of sexual health is that sexual orientation is
mentioned as one of the protected grounds, but does not appear as a ground for which
special measures should be taken in order to achieve better integration and representation.
Sex, ethnicity, language and, in some cases, disabilities, are mentioned repeatedly as
grounds that call for special positive measures, or as areas where special caution must be
taken so that discrimination will not occur. Sexual orientation is not. For example, Article
27 mentions specifically that the law applies to discrimination on the grounds of sex in the
military service and armed forces, and Article 35(1) calls on education-providers to combat
gender stereotyping and discriminatory depictions of racial and religious groups and
persons with disabilities. In neither case is sexual orientation or sexual minorities
mentioned. On the other hand, several of these provisions relate to quotas – encouraging a
balanced participation between men and women and representative participation of persons
belonging to ethnic, religious, or language minorities. Quotas may indeed be a less
desirable and less effective tool in order to combat sexual orientation discrimination.
94 Lemmens, Heylen, Vandeven, and Vrielink (2008), p. 15.
95 Law on Protection Against Discrimination, 1 January 2004. The translation is unofficial, but its content has
been corroborated with information from Kukova, Slavka, “Legal Study on Homophobia and Discrimination
on Grounds of Sexual Orientation, report on Bulgaria.” Report commissioned by European Union Agency for
Fundamental Rights/FRA in 2008, available at http://fra.europa.eu/fraWebsite/attachments/FRA-hdgso-
NR_BG.pdf. The translation was found through the Stop Violence Against Women Network, at
http://www.stopvaw.org. Last visited on 10 May 2010.
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