Agenda for Council of Europe

1. Agenda for Council of Europe • Overview • How the C of E can/is supporting LGBT rights • Parliamentary Assembly • Human Rights Commissioner • Congress of Local and Regional Authorities • The Court

2. OVERVIEW of C of E Human Rights Organisation Covers 46 countries, 800 million people  Main institutions: • Committee of Ministers • Parliamentary Assembly • Congress of Local and Regional Authorities • European Court of Human Rights • Commissioner for Human Rights • Secretary General/Secretariat

3. Freedom of Assembly • Secretary-General • Commissioner for Human Rights • Parliamentary Assembly – Legal Affairs and Human Rights Committee • Parliamentary Assembly – Monitoring Committee (Moldova and Russia) • Congress of Local and Regional Authorities (Statement by President + Report/Recs) • ECtHR: cases from Warsaw, Chisinau, (Moscow)

4. Statement by Secretary General“Tolerance is not enough” “I add my voice to those condemning homophobia which, regrettably, remains alive and well in many parts of Europe….. First, we must demolish the walls of prejudice and intolerance. Then we must build a new structure of acceptance, equality and respect.”

5. Parliamentary Assembly • Report on freedom of assembly • Report on legal recognition of same-sex relationships • Monitoring Committee • Informal pressure by Parliamentarians • Moldova / Russia (Hate speech by MPs) • Russia (2002 attempt to re-criminalise same-sex sex) • Russia – ban on Moscow Pride

6. PACE Monitoring Committee Reviews progress of new member states towards achieving satisfactory level of respect human rights and rule of law. (Albania, Armenia, Azerbaijan, Bosnia-Herzegovina, Georgia, Macedonia, Moldova, Russia, Serbia/Montenegro and Ukraine) Rapporteurs (2) appointed by Assembly; • Regular visits • Report to the Assembly every year to two years Window of opportunity Monitoring process disliked by governments, so incentive to comply with Assembly recommendations

7. Issues covered by monitoring committee All fundamental human rights: • Freedom of assembly • Police harassment • Hate crimes/speech • Discriminatory laws • Need for anti-discrimination legislation (Lobby in Strasbourg; meet on country visits)

8. Recommendations included in Monitoring Committee reports • Ukraine: “to investigate allegations of police harassment of the lesbian and gay community and to take disciplinary action as appropriate. The police should be made aware of the need to respect the rights of lesbian, gay, bisexual and transgendered persons, inter alia through the inclusion of relevant material in police training courses and manuals.” (9/03) • Moldova: re refusal of the Chisinau authorities to authorise demonstration. “Democratic governments are required to respect the fundamental rights of all their citizens and that discrimination against sexual minorities is inadmissible". (9/05)

9. Commissioner for Human Rights • Public statements • Interventions with government officials, ombudspersons • Country reports • Does not take up individual cases

10. Support for LGBT rights • Pro-active • Two public statement on freedom of assembly • Staff member responsible for LGBT issues • Two meetings with ILGA-Europe • Involving IE in conference on human rights defenders • Actively seeking information on LGBT issues for country reports and meeting LGBT groups (Georgia)

11. Statements by Hammarberg • “Freedom of assembly belongs to all the people …. Violent incidents against those who are different or perceived to be different are taking place with alarming frequency, and all too often with impunity. This is unacceptable and has to be stopped.”

12. Statement by Hammarberg Gay Pride marches should be allowed – and protected The lesbian and gay movements are getting more and more organized and they urge their members to “come out”. This is a logical response to centuries of systematic discrimination in country after country. The real problem is not their sexual orientation, but the reaction of others. Whatever the psychological roots, many people still react with aggression against homosexuals. Sadly, some priests have also given direct or indirect support to homophobia which has delayed the necessary attitude change in a number of countries. Hate speech and violent acts against sexual minorities are still frequent – often with total impunity. The time has come to change that.

13. Commissioner’s country reports All fundamental human rights: e.g. • Freedom of assembly • Police harassment • Hate crimes/speech • Discriminatory laws • Need for anti-discrimination legislation + ? Family issues? Recognition of same-sex partners etc ? (Karner) Visits: Ukraine 12/06; Caucasus 1st half 07; Balkans 2nd Half 07

14. Congress of Local and Regional Authorities • March 2006 the CLRAE President asks Mayor of Moscow to "review" his decision to ban the Gay Pride Parade, pointing out that the "universal and unalienable nature of these rights can never be in question". • Report and recommendations under preparation

15. Pro-LGBT positions of the Court (1) Sexual orientation discrimination • Equal treatment in the criminal law • Prohibition of discrimination by public authorities in: • Employment and services (including armed forces) • Custody of children by genetic parents • Governments must grant same rights/benefits to same-sex cohabiting partners as they give to different-sex cohabiting partners

16. Pro LGBT positions of the Court (2) Gender identity Judgments protect right of transsexual men and women: • To legal recognition of gender reassignment (e.g. birth certificates) • To marry a person whose sex is different to their reassigned sex • Where a public/private health insurance plan reimburses cost of "medically necessary" treatment, plan must cover the cost of gender reassignment even if usual strict criteria for determining "medical necessity" do not appear to be satisfied. (Respect the transsexual individual's self-determination of their gender identity, and to take into account the lack of scientific certainty in this area.)

17. Significance of Court judgments for countries not involved in case • Countries have signed up to Convention • Court cases define the scope of Convention • So member states have moral obligation to bring their laws/practices in line with court judgments • But not legal obligation Also: for EU accession countries, article 6 (2) EU: “the Union shall respect fundamental rights, as guaranteed by the ECHR”.

18. ECHR - Political pressure or “copycat cases” • Age of consent • Armed forces • Transsexual person’s right to change birth certificate; and to marry in their adopted gender; health care costs • Custody of children • Rights for co-habiting partners • Freedom of assembly

19. ECHR – further test cases NEED TO GO CAREFULLY! Negative judgments can set back progress by many years • Extending recognition of same-sex partners – e.g., pensions rights Avoid for time being: marriage, adoption by same-sex couples

20. Issues on which no support from Council of Europe institutions • Adoption rights for same-sex couples (attempt to include in a PACE Recommendation dealing with international adoptions (2000) heavily defeated) • Adoption rights for single lesbians or gays (Frette case at ECHR - 2002) • Second parent adoption • Rights of unmarried or registered same-sex couples vs married couples • Marriage – even a reference in Recommendation 1470 strongly opposed by European Peoples Party (2000)

21. Conclusions • Great scope for working with the Council of Europe to achieve LGBT rights, especially on freedom of assembly • Great support and goodwill from Council of Europe staff and institutions - now welcoming and keen to help

22. Karner case (tenancy succession rights for same-sex partners) • 1st victory for same-sex partners in international human rights law (overrules 6 previous Convention cases) • Rejects argument that necessary to exclude same-sex partners from rights of unmarried different-sex partners to protect “the family in the traditional sense” • This reasoning could apply in further cases to exclusion from rights of married partners, and ultimately to access to civil marriage

23. Quoting arguments used by the Court Examples: • Age of consent: rejection of the idea that young males can be “recruited” into homosexuality • Rights for same-sex partners: rejected argument that discrimination necessary “for protection of the family in the traditional sense”. • Sexual orientation discrimination as serious as discrimination on basis of religion, race, gender

24. Pro LGBT positions of the Parliamentary Assembly (1) “The situation of lesbians and gays in member states” (1474 (2000)) • Repeal of discriminatory sexual offences laws • Equal treatment in employment • Anti-discrimination legislation • Introduction of registered partnership laws • Measures to combat homophobia in schools, the medical profession, the armed forces and the police

25. Pro LGBT Positions of the Parliamentary Assembly (2) Situation of gays and lesbians and their partners/asylum and immigration (1470 (2000) • Member states to recognise as refugees homosexuals persecuted on account of sexual orientation • Ensure that bi-national lesbian and gay couples are accorded same residence rights as bi-national heterosexual couples

26. Significance of Recommendations of the Parliamentary Assembly • Are Recommendations to the Committee of Ministers • But powerful statement of European democratic opinion, even if not acted on by the Committee of Ministers

27. Pro LGBT statements by the Committee of Ministers (1) Reply to PACE Recommendation on situation of lesbians and gays in member states (1474) • “regrettably, discrimination and violence .. still occur. Differentiated treatment still exists as do contemptuous or intolerant attitudes” • “Homosexuality can still give rise to powerful cultural reactions, but this is not a valid reason for governments or parliaments to remain passive. On the contrary, this only underlines the need to promote greater tolerance in matters of sexual orientation”

28. Pro LGBT statements by Committee of Ministers (2) Response to PACE recommendation 1474 (cont) • The Committee “underlines in particular the need .. for measures in the areas of education and professional training to combat homophobic attitudes in certain specific circles” (schools, medicine, armed forces, police, judiciary, sport) • “the case-law of the ECHR provides a strong general incitement to all member states to reform any discriminatory legislation or regulations”

29. Significance of statements by Committee of Ministers • Reached by consensus – therefore all governments have, in theory, accepted • Not legally binding, but strong moral obligation to observe