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Discrimination on the basis of sexual orientation and
gender identity

Resolution 1728 (2010)1

1.       The
Parliamentary Assembly recalls that sexual orientation, which
covers 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 a prohibited ground of 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, any more than
similar negative attitudes towards those of a different sex,
race, origin or colour.

3.
Nevertheless, Lesbian, Gay, Bisexual and Transgender (LGBT)
persons, as well as human rights defenders working for the
rights of LGBT persons, 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 persons 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 persons.

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 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 propagate
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 attending
school aged under 18, 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 their wellbeing and
personal growth 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 on 31 March 2010 a recommendation
to member states on measures to combat discrimination on
grounds of sexual orientation or gender identity
(CM/Rec(2010)5), the high priority given by the Council of
Europe Commissioner for Human Rights to this issue, as well as
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
and 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 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 persons 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 providing for a general prohibition of
discrimination;

16.9.
ensure legal recognition of same-sex partnerships only 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
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.
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
law of 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 schools, 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 on the rights of LGBT persons and religious
institutions, based on mutual respect, in order to
facilitate public debates and reforms on issues concerning
LGBT persons;

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.

1 Assembly debate on 29 April
2010 (17th Sitting) (see Doc.
12185, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Gross and Doc.
12197, opinion of the Committee on Equal Opportunities for
Women and Men, rapporteur: Mrs Memecan). Text adopted by
the Assembly on 29 April 2010 (17th
Sitting).

See also
Recommendation 1915 (2010).

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