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Resolution 1728 (2010) Final version
Discrimination on the basis of sexual orientation and gender identity
1. The Parliamentary Assembly recalls
that sexual orientation, which includes heterosexuality, bisexuality and
homosexuality, is a profound part of the identity of each and every
human being. The Assembly also recalls that homosexuality has been
decriminalised in all member states of the Council of Europe. Gender
identity refers to each person’s deeply felt internal and individual
experience of gender. A transgender person is someone whose gender
identity does not correspond to the gender he or she was assigned
at birth.
2. Under international law, all human beings are born free and
equal in dignity and rights. Sexual orientation and gender identity
are recognised as prohibited grounds for discrimination. According
to the European Court of Human Rights, a difference in treatment
is discriminatory if it has no objective and reasonable justification. Since
sexual orientation is a most intimate aspect of an individual’s
private life, the Court considers that only particularly serious
reasons may justify differences in treatment based on sexual orientation.
In its 1999 judgment in Lustig-Prean
and Beckett v. the United Kingdom, it emphasised that
negative attitudes on the part of a heterosexual majority against
a homosexual minority cannot amount to sufficient justification
for discrimination, any more than similar negative attitudes towards
those of a different sex, origin or colour.
3. Nevertheless, lesbian, gay, bisexual and transgender (LGBT)
people, as well as human rights defenders working for the rights
of LGBT people, face deeply rooted prejudices, hostility and widespread
discrimination all over Europe. The lack of knowledge and understanding
about sexual orientation and gender identity is a challenge to be
addressed in most Council of Europe member states since it results
in an extensive range of human rights violations, affecting the
lives of millions of people. Major concerns include physical and
verbal violence (hate crimes and hate speech), undue restrictions
on freedom of expression, freedom of assembly and association, violations
of the right to respect for private and family life, violations
of rights to education, work and health, as well as regular stigmatisation.
As a consequence, many LGBT people across Europe live in fear and
have to conceal their sexual orientation or gender identity.
4. Transgender persons face a cycle of discrimination and deprivation
of their rights in many Council of Europe member states due to discriminatory
attitudes and to obstacles in obtaining gender reassignment treatment
and legal recognition of the new gender. One consequence is the
relatively high suicide rate among transgender people.
5. Discrimination on the basis of sexual orientation and gender
identity can be magnified on the basis of sex and gender, with lesbian,
bisexual and transgender women, in particular, running an increased
risk of violence. The LGBT community itself is also not immune to
sex discrimination.
6. The Assembly is particularly concerned by the violation of
the rights to freedom of assembly and freedom of expression for
LGBT persons in a number of Council of Europe member states since
these rights are pillars of democracy. This has been illustrated
by the banning or attempted banning of peaceful rallies or demonstrations
of LGBT persons and their supporters and the overt or tacit support
some politicians have given to violent counter-demonstrations.
7. Hate speech by certain political, religious and other civil
society leaders, and hate speech in the media and on the Internet
are also of particular concern. The Assembly stresses that it is
the paramount duty of all public authorities not only to protect
the rights enshrined in human rights instruments in a practical
and effective manner, but also to refrain from speech likely to
legitimise and fuel discrimination or hatred based on intolerance.
The boundary between hate speech inciting to crime and freedom of
expression is to be determined in accordance with the case law of
the European Court of Human Rights.
8. Homophobia and transphobia have particularly serious consequences
for young LGBT people. They face widespread bullying, sometimes
unhelpful or hostile teachers and curricula which either ignore
LGBT issues or perpetuate homophobic or transphobic attitudes. A
combination of discriminatory attitudes in society and rejection
by the family can be very damaging for the mental health of young
LGBT people, as evidenced by suicide rates which are much higher
than those in the wider youth population.
9. It is important not to criticise the perceived or declared
sexual orientation of young people, particularly of those aged under
18 still attending school, and to recognise that any exploitation
of their perceived or declared sexual identity, or any humiliation
or degrading treatment on that basis, can be both wrong in itself and
potentially harmful to the well-being and personal growth of these
young people both at that stage and later in life.
10. The denial of rights to de facto “LGBT families” in many member
states must also be addressed, including through the legal recognition
and protection of these families.
11. On the other hand, the Assembly welcomes the fact that, in
some cases, political and judicial authorities have taken a number
of measures against discrimination affecting LGBT persons.
12. In this context, the Assembly welcomes the work of the Committee
of Ministers, which adopted Recommendation CM/Rec(2010)5 to member
states on measures to combat discrimination on grounds of sexual
orientation or gender identity on 31 March 2010, the high priority
given by the Council of Europe Commissioner for Human Rights to
this issue and the recent reports of the European Union Fundamental Rights
Agency on homophobia and discrimination on grounds of sexual orientation
in European Union member states.
13. Recalling its Recommendations
1474 (2000) on the situation of lesbians and gays in
Council of Europe member states and 1117 (1989) on the condition of
transsexuals, the Assembly again condemns the various forms of discrimination
suffered by LGBT people in Council of Europe member states. LGBT
people should not have to fear being stigmatised and victimised,
either in the public or private spheres.
14. The Assembly considers that the Council of Europe has the
duty to promote a clear message of respect and non-discrimination
so that everybody can live in dignity in all its member states.
15. The eradication of homophobia and transphobia also requires
political will in member states to implement a consistent human
rights approach and to embark on a wide range of initiatives. In
this respect, the Assembly stresses the specific responsibility
of parliamentarians in initiating and supporting changes in legislation
and policies in Council of Europe member states.
16. Consequently, the Assembly calls on member states to address
these issues and in particular to:
16.1. ensure that the fundamental rights of LGBT people, including
freedom of expression and freedom of assembly and association, are
respected, in line with international human rights standards;
16.2. provide legal remedies to victims and put an end to impunity
for those who violate the fundamental rights of LGBT people, in
particular their right to life and security;
16.3. recognise that lesbian, bisexual and transgender women
face an increased risk of gender-based violence (in particular rape,
sexual violence and harassment, as well as forced marriages) and
provide protection commensurate with the increased risk;
16.4. condemn hate speech and discriminatory statements and
effectively protect LGBT people from such statements while respecting
the right to freedom of expression, in accordance with the European Convention
on Human Rights and the case law of the European Court of Human
Rights;
16.5. adopt and implement anti-discrimination legislation which
includes sexual orientation and gender identity among the prohibited
grounds for discrimination, as well as sanctions for infringements;
16.6. revoke legislative provisions which are not in conformity
with the case law of the European Court of Human Rights;
16.7. ensure that discrimination on the basis of sexual orientation
and gender identity can be effectively reported to judicial and
non-judicial bodies and ensure that national human rights structures
and equality bodies effectively address these issues;
16.8. sign and ratify Protocol No. 12 to the European Convention
on Human Rights (ETS No. 177) providing for a general prohibition
of discrimination;
16.9. ensure legal recognition of same-sex partnerships when
national legislation envisages such recognition, as already recommended
by the Assembly in 2000, by providing for:
16.9.1. the same
pecuniary rights and obligations as those pertaining to different-sex
couples;
16.9.2. "next of kin" status;
16.9.3. measures to ensure that, where one partner in a same-sex
relationship is foreign, this partner is accorded the same residence
rights as would apply if she or he were in a heterosexual relationship;
16.9.4. recognition of provisions with similar effects adopted
by other member states;
16.10. provide the possibility for joint parental responsibility
of each partner’s children, bearing in mind the interests of the
children;
16.11. address the specific discrimination and human rights violations
faced by transgender persons and, in particular, ensure in legislation
and in practice their right to:
16.11.1. safety;
16.11.2. official documents that reflect an individual’s preferred
gender identity, without any prior obligation to undergo sterilisation
or other medical procedures such as sex reassignment surgery and
hormonal therapy;
16.11.3. access to gender reassignment treatment and equal treatment
in health care areas;
16.11.4. equal access to work, goods, services, housing and other
facilities, without prejudice;
16.11.5. relationship recognition, in accordance with the case
lawof the European Court
of Human Rights;
16.12. introduce or develop anti-discrimination and awareness-raising
programmes fostering tolerance, respect and understanding of LGBT
persons, in particular for public officials, the judiciary, law-enforcement
bodies and the armed forces, as well as educational establishments,
the media, the medical profession and sporting circles;
16.13. promote research on discrimination on the basis of sexual
orientation and gender identity, establish and/or maintain regular
contacts with human rights defenders working on the rights of LGBT persons
and consult them on issues relating to such discrimination;
16.14. encourage dialogue between national human rights institutions,
equality bodies, human rights defenders working for the rights of
LGBT people and religious institutions, based on mutual respect,
in order to facilitate public debates and reforms on issues concerning
LGBT people;
16.15. recognise persecution of LGBT persons as a ground for
granting asylum and implement the 2008 Guidance Note on Refugee
Claims Relating to Sexual Orientation and Gender Identity of the
Office of the United Nations High Commissioner for Refugees;
16.16. fully implement in their law and practice the recommendation
of the Committee of Ministers on measures to combat discrimination
on grounds of sexual orientation or gender identity.
17. Member states may grant exemptions to religious institutions
and organisations when such institutions and organisations are either
engaging in religious activities or when legal requirements conflict
with tenets of religious belief and doctrine, or would require such
institutions and organisations to forfeit any portion of their religious
autonomy, and if such exemptions are compatible with the European
Convention on Human Rights, as interpreted by the European Court
of Human Rights.