Commissioner for Human Rights

[21/06/12 11:00] Recent months have seen renewed efforts in some Council of Europe member states to silence voices against homophobia and transphobia. Laws banning information about lesbian, gay, bisexual, transgender and inter-sex (LGBTI) issues mark a worrying step back towards a bygone era when homosexuals were treated like criminals. These efforts to curtail freedom of expression and assembly run starkly against international and European human rights standards.

The targets of these measures have not only been LGBTI activists, but also those expressing solidarity with their struggle for equality and others who have sought to disseminate factual information about sexual orientation and gender identity.

Backwards trend towards criminalisation

Laws banning “propaganda”, “spreading” or “promotion of homosexuality” have been adopted at national or local level in several member states and have been under consideration in many others. These laws are often so vaguely worded that they may outlaw any public discussion or public activity surrounding LGBTI issues.

In 2009 political groups inLithuaniaseeking to prohibit information on homosexuality in schools pushed through the adoption of a Law on the Protection of Minors against the Detrimental Effects of Public Information. While the initial version of the law prohibited “propagation of homosexual, bisexual and polygamous relationships”, it was amended in 2010 and the situation remains legally ambiguous. In Moldova several cities and local districts recently adopted laws prohibiting the “aggressive propaganda of non-traditional sexual orientations”. In one case, a local bill was declared unconstitutional.

In Russia criminal and administrative laws against “propaganda of homosexuality” were enacted in Ryazan region in 2006, in Arkhangelsk in 2011 and Kostroma and Saint Petersburg in 2012. Several other regions are discussing such laws, as is the State Duma at the national level. These laws provide for very harsh fines – up to EUR 12 700 for associations.

In Ukraine two draft laws were put forward in parliament in 2011 and 2012 making it an offence to “spread homosexuality”, including by “holding meetings, parades, actions, demonstrations and mass events aiming at intentional distribution of any positive information about homosexuality”. Similar initiatives have been proposed at local or national level in Hungary, Latvia, and earlier, in Poland as well.

European standards protect LGBTI rights

All the major international and European instruments provide that freedom of expression, association and assembly should be applied without discrimination, including on grounds of sexual orientation and gender identity. In Alekseyev v. Russia the European Court of Human Rights ruled that the repeated ban on pride demonstrations in Moscow violated the convention and stated that there was no scientific evidence that open public debate about sexual orientation has an adverse effect on children. In last week’s [12 June 2012] judgment Genderdoc-M v. Moldova, the Court found a violation with respect to the ban of an LGBT demonstration in Chişinău which the authorities had considered to “promote homosexuality”.

States should combat homophobic and transphobic hate speech. Indeed, the European Court of Human Rights recently ruled in the case of Vejdeland and Others v. Sweden that homophobic speech did not fall under the protection of Article 10 guarantees of free expression. In the case, the Court found justified the criminal conviction of individuals who distributed leaflets in an upper secondary school calling homosexuality a “deviant sexual proclivity” with a “morally destructive effect on the substance of society”.

What governments should do

Frequently, governments have sought to justify restrictions on the freedoms of LGBTI persons with reference to public opinion, moral or religious considerations. This is clearly unacceptable from the perspective of human rights. Prides must be permitted, and governments must protect them, as well as allow the peaceful expression of opposing views, if they do not constitute hate speech.

If public opinion is hostile to LGBTI rights, governments have a responsibility to raise awareness and educate the public. A good opportunity for doing so was recently provided by the Council of Europe, which has launched a programme of awareness-raising and educational activities on LGBT issues available to states on a voluntary basis. Albania, Italy, Latvia, Montenegro, Poland and Serbia have already joined the programme, which is a good first step towards overcoming prejudice in society.

Rather than seeking to keep or drive LGBTI issues back into the closet, states must fulfill their human rights obligations to all and help counter public prejudice.

Nils Muižnieks