Homophobia: The Absence of Legal Protection as Psychological Violence

The Swiss Criminal Code includes an individual protection against attack on one’s honour. According to the Swiss Criminal Code, Article 177, “ Any person who attacks the honour of another verbally, in writing, in pictures, through gestures or through acts of aggression is liable on complaint to a monetary penalty not exceeding 90 daily penalty units.” Regarding this provision, one should be the direct victim of the attack to lodge a complaint. However, the Swiss Criminal code doesn’t include any specific protection against homophobic abuse formulated publicly against some or all of the LGBTIQ community in the image of the criminal provision against Racism article 261bis of the Criminal Code called “Racial discrimination”. Thus, any insult pronounced against the LGBTIQ community cannot be prosecuted in Switzerland. According to the Federal Court, LGBTIQ associations do not have locus standi and such an attack is considered to be too broad, too general, for an LGBTIQ person to be directly concerned and lodge a complaint. The absence of a ban on homophobic abuse - this legal vacuum - contributes not only to the trivialization of homophobic abuse, but also to a form of institutional psychological violence. I will first look at how some European countries have legislated in this area. Secondly, on this basis of comparative law, I propose to discuss whether the parliamentary initiative Fight against Discriminations Based on Sexual Orientation (13.407) being processed in the Federal Parliament, proposing to supplement article 261bis with “sexual orientation”, is the right solution or if another option would be preferable.