Print
See related documents
Resolution 2239 (2018)
Private and family life: achieving equality regardless of sexual orientation
1. The right to respect for private
and family life is a fundamental right, enshrined in Article 8 of
the European Convention on Human Rights (ETS No. 5). This right
is of equal importance for everyone, yet progress towards achieving
equality in this field, regardless of sexual orientation, has often
been slower than in other fields.
2. Same-sex couples and other rainbow families exist throughout
Europe, whether or not legislation recognises them. These families
have the same needs as any other family, yet many are deprived of
their rights on the grounds of the sexual orientation or gender
identity of the partners or parents. It is crucial and urgent that
our legal systems acknowledge this reality and that States work
to overcome the discrimination experienced by both adults and children
in rainbow families.
3. Since the Parliamentary Assembly last considered these issues
in its Recommendation 1474
(2000) on the situation of lesbians and gays in Council
of Europe member States and Resolution 1728
(2010) on discrimination on the basis of sexual orientation
and gender identity, and since the Committee of Ministers adopted
its Recommendation
CM/Rec(2010)5 on measures to combat discrimination on
grounds of sexual orientation or gender identity, there have been
significant developments in the case law of the European Court of
Human Rights, and important advances towards greater equality for
rainbow families have been achieved in member States. These developments
throw new light on the extent of the efforts required from member States
in order to achieve equality in the field of private and family
life regardless of sexual orientation.
4. In the light of the above, and bearing in mind also the relevant
recommendations made in its Resolution 2048
(2015) on discrimination against transgender people in
Europe and Resolution 2191
(2017) on promoting the human rights of and eliminating
discrimination against intersex people, as well as the recommendations
made in this field by the Council of Europe Commissioner for Human
Rights and numerous treaty bodies of the United Nations, the Assembly
calls on Council of Europe member States to:
4.1. ensure that their constitutional, legislative and regulatory
provisions and policies governing the rights of partners, parents
and children are applied without discrimination on grounds of sexual orientation
or gender identity, eliminating all unjustified differences in treatment
based on these grounds;
4.2. refrain from adopting changes to their constitutions that
would prevent the recognition of same-sex marriage or of other forms
of rainbow families, and instead leave such decisions to the legislature or
the highest court;
4.3. align their constitutional, legislative and regulatory
provisions and policies with respect to same-sex partners with the
case law of the European Court of Human Rights in this field, and
accordingly:
4.3.1. ensure that same-sex partners have available
to them a specific legal framework providing for the recognition
and protection of their unions;
4.3.2. grant equal rights to same-sex couples and heterosexual
couples as regards succession to a tenancy;
4.3.3. ensure that cohabiting same-sex partners, whatever the
legal status of their partnership, qualify as dependants for the
purposes of health insurance cover;
4.3.4. when dealing with applications for residence permits for
the purposes of family reunification, ensure that, if same-sex couples
are not able to marry, there is some other way for a foreign same-sex
partner to qualify for a residence permit;
4.4. ensure that other basic needs which are fundamental to
the regulation of a relationship between a couple in a stable and
committed relationship are provided for without discrimination on
the grounds of sexual orientation, and accordingly:
4.4.1. as
regards migration, extend residence rights to same-sex partners
on an equal footing with heterosexual partners and give equal recognition
to same-sex partnerships in the context of applications for citizenship;
4.4.2. as regards situations giving rise to the need for medical
care, recognise same-sex partners as next of kin for medical purposes
and extend to them entitlements to special leave for the purpose
of caring for a sick partner or for the sick parent of a partner,
without discrimination on the grounds of sexual orientation;
4.4.3. as regards property, treat as joint property the possessions
acquired by a same-sex couple during their relationship, without
discrimination on the grounds of sexual orientation;
4.4.4. as regards criminal law, ensure the applicability of statutory
protection against domestic violence and guarantee the right to
refuse to testify against one’s partner in criminal procedures, without
discrimination on the grounds of sexual orientation;
4.4.5. as regards separation, ensure the applicability to same-sex
couples of rules on alimony, without discrimination on the grounds
of sexual orientation;
4.4.6. as regards death and inheritance, extend access to survivor’s
pensions to same-sex couples as well as entitlements to compensation
for the wrongful death of one’s partner and entitlements to inherit
when one’s partner dies intestate, and grant exemption from inheritance tax
to same-sex couples, without discrimination on the grounds of sexual
orientation;
4.5. protect the rights of parents and children in rainbow
families, without discrimination based on sexual orientation or
gender identity, and accordingly:
4.5.1. in line with the
case law of the European Court of Human Rights, ensure that all
rights regarding parental authority, adoption by single parents
and simple or second-parent adoption are granted without discrimination
on the grounds of sexual orientation or gender identity;
4.5.2. provide for joint adoption by same-sex couples, without
discrimination on the grounds of sexual orientation;
4.5.3. extend automatic co-parent recognition to the same-sex
partner of the parent who has given birth in all cases where this
would be extended to a mother’s male spouse;
4.5.4. where single women are granted access to medically assisted
procreation, ensure that such access is granted without discrimination
on the grounds of sexual orientation or gender identity;
4.5.5. where unmarried heterosexual couples are granted access
to medically assisted procreation, ensure that such access is granted
to same-sex couples;
4.6. in addition to the recommendations already adopted by
the Assembly in Resolution 2048
(2015) and Resolution 2191
(2017) regarding the effects of legal gender recognition
of transgender and intersex people on their access to or the continuity
of their civil partnership or marriage, and regarding the rights of
spouses and children, provide for transgender parents’ gender identity
to be correctly recorded on their children’s birth certificates,
and ensure that persons who use legal gender markers other than
male or female are able to have their partnerships and their relationships
with their children recognised without discrimination;
4.7. work actively, in consultation with civil society, to
promote acceptance of and respect for rainbow families in our societies.
5. The Assembly emphasises that intolerance that may exist in
society towards people’s sexual orientation or gender identity can
never be used as a justification for perpetuating discriminatory
treatment, as this serves, unacceptably, to legitimise violations
of human rights. States must, on the contrary, work vigorously to
combat the prejudice that enables such discrimination to persist,
in order to fulfil their responsibility to protect and promote the
human rights of all those within their jurisdiction and to eliminate
discrimination on all grounds, including sexual orientation or gender
identity.