Structure of presentation

1. Discrimination on grounds of sexual orientation and gender identity in EuropeSarajevo, 29 September 2011

2. 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

3. Methodology • Research and data collection from governmental, non governmental and NHRI experts in all 47 member states of Council of Europe • 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 • Report has 6 thematic chapters and 36 recommendations. Tool for dialogue !

4. 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).

5. 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.

6. 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.

7. 1. Attitudes and perceptions

8. Attitudes and perceptions • Criminalisation • Medicalisation • Perceptions of ‘the nation’, religion and traditional values • Perceptions of LGBT persons’ visibility and use of public space • Media

9. Recommendations • 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. • Encourage professional reporting by the media on LGBT persons.

10. 2. Legal standards and their implementations

11. 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).

12. 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.

13. 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)

14. 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

15. Non-discrimination legislation covering sexual orientation

16. Non-discrimination legislation covering transgender persons

17. Recommendations • Implement international human rights obligations without discrimination on grounds of sexual orientation and gender identity. • Enact comprehensive national legislation on non-discrimination including on grounds of sexual orientation and gender identity. Consult with NGOs representing LGBT persons. • Detect and correct possible inconsistencies of the national legislation with non-discrimination legislation.

18. Recommendations • Monitor the implementation of national nondiscrimination legislation and involve civil society in the process. Establish a regular monitoring mechanism.

19. 3. Protection: violence and asylum

20. 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.

21. 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

22. 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).

23. 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

24. Hate crime legislation inclusive of sexual orientation

25. 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

26. Recommendations to member states • 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. • Effectively investigate bias-motivated crimes, speech and incidents related to homophobia and transphobia. • Improve systematic disaggregated data collection on hate-motivated crimes, speech and incidents related to homophobia and transphobia.

27. 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

28. 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)

29. 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

30. Recommendations • 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. • 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. • Address social isolation, violence and discrimination experienced by LGBT asylum seekers in asylum centres, and provide for their health care needs.

31. 4. Participation: freedoms of assembly, expression and association

32. 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)

33. 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

34. Bans and/or impediments on LGBT events since 2004

35. Recommendations • 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. • Provide effective protection to participants of peaceful Pride demonstrations or public events organised by and for LGBT persons from attacks and violent counter-demonstrations.

36. Recommendations • 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. • Respect effective right to freedom of expression to exchange information concerning sexual orientation and gender identity.

37. 5. Privacy: legal gender recognition and family life

38. Same-sex partnerships: European Court of Human Rights jurisprudence • Does not yet grant same-sex partners the right to marriagebut: • 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

39. Same-sex partnership legislation

40. Attitudes towards same-sex marriages

41. Adoption by same-sex couples

42. Recommendations • Enact legislation recognising same-sex partnerships with the same rights and benefits as different-sex partnerships or marriage. • 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. • Recognisethe parental rights of same-sex parents, individually or jointly. Respect parental rights of transgender persons after legal gender recognition. • Allow access to assisted reproduction to LGBT persons without discrimination.

43. 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

44. Sterilisation requirement for legal gender recognition

45. Divorce requirement for legal gender recognition

46. Recommendations • 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. • Abolish sterilisation as necessary requirement for the legal gender recognition. • Remove requirement of being unmarried or divorced as a necessary condition for legal gender recognition. • Respect the right of transgender persons to exercise their right to marry in accordance with their legally recognised gender.

47. 6. Access to health care, education and employment

48. Education • Heteronormativity in school books • Bullying at schools widespread problem • Human Rights Comment (27 September) Recommendations • Promote respect and inclusion of LGBT persons at school and foster objective knowledge on issues concerning sexual orientation and gender identity in schools. • Combat bullying and harassment of LGBT students and staff.

49. Employment • Harassment and discrimination in the work place • Fear to ‘come out’ in the workplace • Some good practices by trade unions Recommendations • Promote policies and practices aimed at combating discrimination based on sexual orientation or gender identity; promote policies to foster diversity in the workplace. • Respect the right of transgender persons to access the labour market (guarantee privacy and promote measures to end exclusion and discrimination).

50. Health • Classification systems • Health problems of LGBT persons • Obstacles when accessing health services Recommendations • Abolish outdated classification systems which portray homosexuality as an illness or disease. • Review any requirements of a diagnosis of mental disorder for accessing transgender health care. Ensure the right to self-determination in decisions on treatment.