A recent hearing on “discrimination on the basis of sexual orientation and gender identity”, organised by PACE’s Legal Affairs Committee (Berlin, 24 March 2009), brought together legal experts, NGOs and academics to brief parliamentarians on why – in the words of rapporteur Andreas Gross (Switzerland, SOC) – “some countries are more progressive on lesbian, gay, bisexual and transgender issues, and some have greater problems”. The hearing focused on the human rights aspects of such discrimination and also covered gender identity issues.
Hans Ytterberg, a former Swedish Ombudsperson against discrimination on the basis of sexual orientation who also chairs a Council of Europe expert committee, gave an overview of the legal and human rights principles in the field, and pointed out that sexual orientation was “a profound element of the identity of each and every human being” covering homosexuality, bisexuality and heterosexuality. A number of people were not heterosexual and their sexual orientation (homosexuality or bisexuality) was not illegal under international law. Their rights were part of international human rights law; therefore discrimination against them was not a question of minority rights. Sexual orientation and gender identity were dealt with in the case-law of the European Court of Human Rights, and by UN Treaty bodies, among others. According to the European Court, a difference in treatment was discriminatory if it had no objective and reasonable justification. Since sexual orientation was a most intimate aspect of an individual’s private life, the Court also considered that differences in treatment based on sexual orientation required particularly serious reasons by way of justification. Finally, this was not a matter of opinion: negative attitudes on the part of a heterosexual majority against a homosexual minority could not amount to sufficient justification, any more than similar negative attitudes towards those of a different race, origin or colour. Equality in dignity and rights was a fundamental human right, not a negotiable concession, he concluded.
Julia Ehrt of Berlin-based TransGender Europe explained what it was like to be born male, but identify as female. She outlined the forms of discrimination transgender people are subjected to, pointing out that “roughly one hate-killing of a transgender person per month comes to public attention”. Name and gender were “the entry cards to society”, she pointed out (for example on ID cards, credit and bank cards, school and university degree certificates) and if changes to these were not recognised, transgender people faced stigmatisation in every aspect of life. Participation in social life, travelling or finding a job became virtually impossible. She stressed the need for protection from hate crimes by the law, and for greater reporting of hate crime, as well as the need to include gender identity in anti-discrimination legislation. Transgender people should have the possibility to change name and gender in an accessible and quick way.
Professor Igor Kon of the Russian Academy of Sciences said that the level of discrimination against LGBT persons was a litmus test for evaluating the state of human rights and tolerance in a country. He gave some examples of hate speech against LGBT people and recalled that a recently-published report of the Moscow Helsinki Group on the situation of LGBT persons in Russia contained a multitude of compelling examples of grave violations of human rights, including beatings and murders, but these facts were hushed up and victims’ complaints were not listened to by the authorities. Such a mindset was hardly in keeping with the 21st century, since a world governed on these lines would have no inter-racial or inter-faith marriages, nor any female politicians or black presidents. He said differences in public opinion from country to country on this issue were not cultural, but linked to historical development. Today, some 31 per cent of Russians considered homosexuality as an “illness” and only 20 per cent thought it as valid as other forms of sexuality, he pointed out, but public education could help to change this. “Every boy is told from childhood that a real boy should not be a girl or gay – this is banged into him.” He stressed that there should be special instruction making clear that persecution and harassment on grounds of sexual orientation are inadmissible. Millions of persons were concerned. There should also be objective international monitoring of the real situation of the LGBT community, he said.
Ioannis Dimitrakopoulos of the European Union’s Agency for Fundamental Rights presented a short overview of the report prepared by his Agency on homophobia and discrimination on grounds of sexual orientation in all the EU member states. One key finding was that hate-crimes directed at LGBT people were often under-reported: LGBT people should be encouraged to come forward and lodge complaints on incidents of discrimination. The word “gay” continued to be a derogatory term in many EU countries, there was a lot of hate-speech on the internet and there remained few positive LGBT images in education. EU countries needed to take a firm stance against discrimination on grounds of sexual orientation and gender identity, he said, but should base themselves on robust data: authorities and other specialised bodies in many EU member states still need to develop appropriate data collection mechanisms.
Dennis van der Veur from the office of the Council of Europe Commissioner for Human Rights said the Commissioner was committed to working on this issue, and pointed out that discrimination took place in all Council of Europe member states. It was “not just a problem of the East”, as some claimed. Two particular issues needed to be stressed, he pointed out: the right to physical integrity and dignity of transgender people, and the lack of data on discrimination on the basis of sexual orientation and gender identity. The Commissioner had made a proposal to complement the study covering EU countries with further research in order to cover Council of Europe member states which are not EU members.
Mr Gross is to prepare a full report on the issue for debate by the Assembly in the coming months.