Discrimination on grounds of sexual orientation and gender identity in Europe Sarajevo, 29 September 2011

Structure of presentation 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 Research and data collection from governmental, non governmental and NHRI experts in all 47 member states of Council of Europe Focus on period / 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 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 and 868 respectively. Norway: recorded 36 crimes against LGBT persons based on bias motivation (2009) Germany: recorded in crimes motivated by a bias against sexual orientation, 45 of which were violent crimes. Sweden: in 2008, hate crimes against LGB persons were recorded of which 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 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 : 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 –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 self- determination 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 protectedGay Pride marches should be allowed – and protected ( ) Homophobic policies are slow to disappear Homophobic policies are slow to disappear ( ) Time to recognise that human rights principles apply also to sexual orientation and gender identityTime to recognise that human rights principles apply also to sexual orientation and gender identity ( ) Discrimination against transgender persons must no longer be toleratedDiscrimination against transgender persons must no longer be tolerated ( )

Commissioner’s publications Human Rights Comments: Pride events are still hindered – this violates freedom of assemblyPride events are still hindered – this violates freedom of assembly ( ) Forced divorce and sterilisation – a reality for many transgender personsForced divorce and sterilisation – a reality for many transgender persons ( ) Clear laws needed to protect trans persons from discrimination and hatredClear laws needed to protect trans persons from discrimination and hatred ( ) Schools must stop spreading homophobic and transphobic messagesSchools must stop spreading homophobic and transphobic messages ( ) Issue paper: Human Rights and Gender Identity ( )

Commissioner’s publications Letters: Letter from the Commissioner for Human Rights to Mr Milo Djukanovic, Prime Minister of MontenegroLetter from the Commissioner for Human Rights to Mr Milo Djukanovic, Prime Minister of Montenegro ( ) Letter from the Commissioner for Human Rights to Ms Irena Degutiene, Speaker of the SeimasLetter 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 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""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)Steering Committee for Human Rights (CDDH)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: or order copywww.coe.int/commissioner 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)