Discrimination on grounds of sexual orientation and
gender identity in Europe
Sarajevo, 29 September 2011
Structure of presentation
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Methodology of report and terminology
Short video of the launch of the report
Presentation of main results or report
Obstacles and challenges by NHRS in
addressing human rights of LGBT persons
• Discussion and conclusions
Methodology
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Research and data collection from governmental, non
governmental and NHRI experts in all 47 member
states of Council of Europe
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Focus on period 2004-2010 / two sets of data:
• Data of a social/sociological nature
– Desk research and field visits to MS
• Data of a legal nature (legislation, case law,
jurisprudence)
– Desk research + national reports from experts
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Report has 6 thematic chapters and 36
recommendations. Tool for dialogue !
Terminology: Sexual Orientation
Each person’s capacity for profound
emotional, affectional and sexual
attraction to, and intimate and sexual
relations with, individuals of a different
gender (heterosexual) or the same gender
(homosexual, lesbian, gay) or more than
one gender (bisexual).
Terminology: Gender identity
A person’s deeply felt individual
experience of gender, which may or may
not correspond with the sex assigned at
birth. Includes the personal sense of the
body and other expressions of gender
such as dress, speech and mannerisms.
Terminology: Transgender persons
Persons who have a different gender
identity than the gender assigned to them
at birth and people who wish to portray
their gender identity in a different way
from the gender assigned at birth.
1. Attitudes and
perceptions
Attitudes and perceptions
• Criminalisation
• Medicalisation
• Perceptions of ‘the nation’, religion and
traditional values
• Perceptions of LGBT persons’ visibility and
use of public space
• Media
Recommendations
1. Take a strong public position against
violations of the human rights of LGBT persons
and promote respect on issues related to
sexual orientation and gender identity.
2. Encourage professional reporting by the
media on LGBT persons.
2. Legal standards and
their implementations
International legal framework: UN
• No ‘new rights’ or ‘special rights’. All people should fully enjoy
human rights without discrimination.
• International and European human rights standards apply equally to
everyone regardless of sexual orientation and gender identity.
• Articles prohibiting discrimination in human rights treaties interpreted
to cover sexual orientation and gender identity. For example:
– General Comment 20 UN Committee on ESCR
– General Recommendation 28 CEDAW Committee
– General Comment 4 Committee on Rights of the Child (only s.o.)
• Both sexual orientation and gender identity are directly included in
the new CoE Convention preventing and combating violence
against women and domestic violence (2011).
International legal framework: CoE
• ECHR Article 14 and Protocol 12 have open ended lists
of discrimination grounds
• European Court of Human Rights confirmed in 1999 that
sexual orientation is a ground covered by the Convention
(Mouta vs Portugal) though in fact already as of 1981
(Dudgeon vs UK).
• For gender identity this was confirmed in 2010
(‘transsexuality’) in P.V. v Spain) though in fact already
as of 2002 (Christine Goodwin v UK)
• Since then several landmark judgments mainly in
relation to Article 8 in relation to Article 14.
International legal framework
• Recommendation 2010(5) of the CM to
member states on measures to combat
discrimination on grounds of sexual
orientation and gender identity.
• Yogyakarta Principles on the Application of
International Human Rights Law in relation
to Sexual Orientation and Gender Identity
(2006)
EU Law
• Closed lists of discrimination grounds
• Sexual orientation specifically mentioned as
a ground of discrimination (‘Employment
Directive’ and in Fundamental Rights Charter,
Article 21)
• For gender identity the ground of sex is
applied with reference to EU Directives on equal
treatment for men and women, however only to
those persons who “ intend to undergo or having
undergone gender reassignment ” following
judgments of the Court of Justice of the EU
Non-discrimination legislation covering sexual orientation
Non-discrimination legislation covering transgender
persons
Recommendations
1. Implement international human rights
obligations without discrimination on
grounds of sexual orientation and gender
identity.
2. Enact comprehensive national legislation on
non-discrimination including on grounds of
sexual orientation and gender identity. Consult
with NGOs representing LGBT persons.
3. Detect and correct possible inconsistencies of
the national legislation with non-discrimination
legislation.
Recommendations
4. Monitor the implementation of national
nondiscrimination legislation and involve
civil society in the process. Establish a
regular monitoring mechanism.
3. Protection:
violence and asylum
Definitions
• Hate crime towards LGBT persons refers to criminal
acts with a bias motive. Hate crimes include
intimidation, threats, property damage, assault, murder
or any other criminal offence where the victim,
premises or target are selected because of their real
or perceived connection, affiliation, support or
membership of an LGBT group.
• Hate-motivated incident is used to encompass
incidents, acts or manifestations of intolerance
committed with a bias motive that may not reach the
threshold of a hate crime, due to insufficient proof in
court for the criminal offence or bias motivation, or
because the act itself is no criminal offence under
national legislation.
Data from official sources
• ODIHR: 15 CoE member states report that they collect data on
crimes committed against LGBT persons. However, only 4 of these
15 submitted comprehensive data. For example:
• United Kingdom: in 2007, 988 criminal court cases were initiated
against suspects of LGBT hate crimes; 759 persons were convicted,
while in 2009 these figures had risen to 1 078 and 868 respectively.
• Norway: recorded 36 crimes against LGBT persons based on bias
motivation (2009)
• Germany: recorded in 2009 164 crimes motivated by a bias against
sexual orientation, 45 of which were violent crimes.
• Sweden: in 2008, 1 055 hate crimes against LGB persons were
recorded of which 1 046 had a homophobic motive. In the same
year 14 crimes were recorded against transgender persons.
• Public authorities in Turkey counted seven murdered transgender
persons in 2008 and 2009
Data from NGOs
• ILGA-Europe: Hate killings against LGBT
persons in the period 2005-2008 in the
Netherlands, Portugal, the Russian Federation,
Turkey and the United Kingdom.
• The Transgender Murder Monitoring Project:
36 hate killings in Council of Europe member
states in period 2008 - 2010: Italy and Turkey
(13 cases each), Spain (3 cases), Germany and
the UK (2 cases each), Albania, Portugal and
Serbia (1case each).
Hate Crime Legislation
– 18 member states have legislation which
considers incitement of hatred, violence or
discrimination on grounds of sexual
orientation a criminal offence
– 15 member states consider homophobic
intent as an aggravating factor in common
crime
– Only 2 member states include gender identity
or transphobic hate crime in their hate crime
legislation
Hate crime legislation inclusive of sexual orientation
Perpetrators, speech and obstacles
– Perpetrators
– Speech inciting to hatred
– Obstacles when discussing hate crime data:
• Underreporting: victims don’t dare to report !
• Lack of skills and awareness among law
enforcement personnel
• Lack of hate crime legislation which includes
sexual orientation and gender identity
Recommendations to member states
1. Include homophobic and transphobic hatred in
national legislation on bias-motivated crime and hate
speech. Homophobic and transphobic crimes should
be punished, with bias motive as aggravating
circumstance.
2. Effectively investigate bias-motivated crimes, speech
and incidents related to homophobia and transphobia.
3. Improve systematic disaggregated data collection on
hate-motivated crimes, speech and incidents related to
homophobia and transphobia.
Other forms of violence (1)
• Violence and harassment by state actors:
– Police raids in LGBT bars/clubs, cruising areas
– Pressure on LGBT persons to pay bribes to police ‘in
exchange of’ not being outed to family, employer etc
• Collection of sensitive private data by state
actors
– Databases on convicted gay/bisexual men for
consensual (then illegal) same-sex acts
– Fingerprints, photos taken of LGBT persons
Other forms of violence (2)
• Violence in the family:
– Violence can be physical (beatings), psychological
(emotional pressure, control), verbal (calling names)
– Violent behaviour by parents to LGBT children (when
‘coming out’) or by partners in a relationship
Council of Europe Convention on Preventing and Combating
Violence against Women and Domestic Violence also applies to
lesbian, bisexual and transgender women ! 16 member states
signed the convention but no ratification yet (minimum needed in
order to enter into force: 10 ratifications)
Asylum
• National legislation
– 33 member states recognise by law or by
practice persecution on grounds of sexual
orientation in asylum claims
– 6 member states recognise gender identity
• Obstacles in asylum procedure:
– Discretion
– Credibility of asylum seeker
Recommendations
1.
Recognise persecution or a well-founded fear of
persecution on the basis of sexual orientation or
gender identity as valid grounds for granting refugee
status and asylum.
2.
Provide expertise and training to asylum officers to
ensure a respectful asylum procedure, so that LGBT
asylum seekers feel safe to disclose their sexual
orientation or gender identity.
3.
Address social isolation, violence and
discrimination experienced by LGBT asylum seekers
in asylum centres, and provide for their health care
needs.
4. Participation:
freedoms of assembly,
expression and association
Standards
• Protected by the European Convention
• ‘Morality’ considerations for limiting these
freedoms are not accepted by the Court
“ it is necessary also to accept opinions,
expressions and information that may be
welcomed unfavourably by a part of the
population” (Handyside v UK)
“ protecting freedom of assembly goes as far
as also including those assemblies that are
not positively perceived by the majority”
(Baczkowski and others v Poland /
Alekseyev v Russian Federation)
Situation in member states
• In 5 member states LGBT organisations faced
obstruction or refusal in the registration
process
• In 3 member states attempts to criminalise
‘propaganda of homosexuality’
• In 12 member states bans or impediments
when organising LGBT Pride events
Bans and/or impediments on LGBT events since 2004
Recommendations
1. Ensure effective right to freedom of
assembly of LGBT persons so that peaceful
Pride festivals and other public events can take
place without discrimination. Prevent misuse of
legal or administrative provisions to hinder the
organisation of such events.
2. Provide effective protection to participants of
peaceful Pride demonstrations or public events
organised by and for LGBT persons from
attacks and violent counter-demonstrations.
Recommendations
3. Respect effective right to freedom of
association of LGBT persons so that NGOs
can be set up and operate without
discrimination. Prevent disproportionately
lengthy or difficult administrative procedures
in the registration process.
4. Respect effective right to freedom of
expression to exchange information concerning
sexual orientation and gender identity.
5. Privacy:
legal gender recognition
and family life
Same-sex partnerships: European Court of
Human Rights jurisprudence
• Does not yet grant same-sex partners the right
to marriage but:
• Marriage with reference to Article 12 ECHR on
the right to marry may also include unions
between partners of the same sex
• Same-sex partners enjoy family life in the sense
of Article 8 ECHR
• Should ensure that same-sex couples are not
treated less favourably than cohabiting
different-sex couples
Same-sex partnership legislation
Attitudes towards same-sex marriages
Adoption by same-sex couples
Recommendations
1.
Enact legislation recognising same-sex partnerships
with the same rights and benefits as different-sex
partnerships or marriage.
2.
Grant same-sex couples and LGBT individuals, in
compliance with the principle of the best interests of
the child, opportunities to be considered as adoptive
parents.
3.
Recognise the parental rights of same-sex parents,
individually or jointly. Respect parental rights of
transgender persons after legal gender recognition.
4.
Allow access to assisted reproduction to LGBT
persons without discrimination.
Legal recognition of gender reassignment
• European Court of Human Rights has ruled that
gender reassignment must be recognised
• 24 member states have adopted legislation on
gender reassignment
• In 13 other member states no or only partial
legislation was identified, but transgender
persons able to have their reassigned gender
recognised through court decisions or
administrative practices
Sterilisation requirement for legal gender recognition
Divorce requirement for legal gender recognition
Recommendations
1. Grant legal recognition for the preferred gender of
transgender persons. Develop expeditious procedures
for changing name and sex of a transgender person on
identification documents and educational diplomas.
2. Abolish sterilisation as necessary requirement for the
legal gender recognition.
3. Remove requirement of being unmarried or divorced
as a necessary condition for legal gender recognition.
4. Respect the right of transgender persons to exercise
their right to marry in accordance with their legally
recognised gender.
6. Access to health care,
education and employment
Education
– Heteronormativity in school books
– Bullying at schools widespread problem
– Human Rights Comment (27 September)
Recommendations
1. Promote respect and inclusion of LGBT persons at
school and foster objective knowledge on issues
concerning sexual orientation and gender identity in
schools.
2. Combat bullying and harassment of LGBT students
and staff.
Employment
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–
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Harassment and discrimination in the work place
Fear to ‘come out’ in the workplace
Some good practices by trade unions
Recommendations
1.
Promote policies and practices aimed at combating
discrimination based on sexual orientation or gender
identity; promote policies to foster diversity in the
workplace.
2.
Respect the right of transgender persons to access
the labour market (guarantee privacy and promote
measures to end exclusion and discrimination).
Health
– Classification systems
– Health problems of LGBT persons
– Obstacles when accessing health services
Recommendations
1. Abolish outdated classification systems which
portray homosexuality as an illness or disease.
2. Review any requirements of a diagnosis of
mental disorder for accessing transgender
health care. Ensure the right to selfdetermination in decisions on treatment.
Recommendations
3. Include in the education and training of
health care professionals the importance of
respecting the dignity of LGBT persons.
4. Make gender reassignment procedures
accessible to transgender persons subject to
informed consent and ensure that they are
reimbursed by health insurance.
Focus: Research and data
collection
Recommendations
1. Encourage systematic research and
disaggregated data collection concerning
discrimination on grounds of sexual orientation
and gender identity. LGBT-related questions
should be included in general attitude surveys
and public opinion polls.
2. Apply safeguards protecting the right to
respect for private life of LGBT persons in the
collection of any sensitive data.
Focus: Challenges and
obstacles experienced by
NHRS in addressing LGBT
human rights
NHRS
• Wide variety of national structures for promoting
equality
• In majority of EU member states equality bodies
are vested with the mandate to receive
complaints of sexual orientation discrimination
but far less on gender identity discrimination (4
with explicit mandate)
• For other CoE member states ‘mixed picture’
• LGBT NGOs expressed view that NHRS are not
sufficiently active in this field
Recommendation
Set up independent national
structures for promoting equality.
Their mandate should include
discrimination on grounds of sexual
orientation and gender identity.
Commissioner’s publications
• Viewpoints:
Gay Pride marches should be allowed – and
protected (24.07.06)
Homophobic policies are slow to disappear
(16.05.07)
Time to recognise that human rights principles
apply also to sexual orientation and gender
identity (14.05.08)
Discrimination against transgender persons must
no longer be tolerated (05.01.09)
Commissioner’s publications
• Human Rights Comments:
Pride events are still hindered – this violates
freedom of assembly (02.06.2010)
Forced divorce and sterilisation – a reality for
many transgender persons (30.08.2010)
Clear laws needed to protect trans persons from
discrimination and hatred (26.07.2011)
Schools must stop spreading homophobic and
transphobic messages (27.09.2011)
• Issue paper:
Human Rights and Gender Identity (29.07.2009)
Commissioner’s publications
• Letters:
Letter from the Commissioner for Human Rights to
Mr Milo Djukanovic, Prime Minister of
Montenegro (09.11.2010)
Letter from the Commissioner for Human Rights to
Ms Irena Degutiene, Speaker of the Seimas (9
December 2009)
Letter from the Commissioner for Human Rights to
Mr Andrius Kubilius, Prime Minister of Lithuania
(9 December 2009)
Commissioner’s publications
• Speeches:
"Thinking globally, acting locally", speech held in
October 2008, at the ILGA-Europe Annual
Conference in Vienna.
• Contributions to intergovernmental standard
setting work: Steering Committee for Human
Rights (CDDH) and the European Committee on
Legal Co-operation (CDCJ)
In addition to these documents: numerous letters
of support to organisers of LGBT Pride festivals
and other events in, among others, Moldova, the
Russian Federation and Serbia.
More information
• Download report on: www.coe.int/commissioner
or order copy
• Translations in French, Russian, Norwegian
(forthcoming)
• Summary translations in Turkish (forthcoming)
and Serbo/Croatian (available here!)
• Speeches of WHO, EU, UN, OSCE and (non)
governmental representatives on our website
(thematic LGBT section)
http://www.coe.int/t/commissioner/activities/themes/LGBT/Default_en.asp