< Viewpoints < 2007

“Homophobic policies are slow to disappear”

[16/05/07] The European Court of Human Rights has recently taken another significant decision against tendencies of homophobia. A non-governmental group in Poland, the Foundation for Equality, had been denied permission to organise a demonstration in Warsaw on their “Equality Days” two years ago. The Court found that the local authorities had violated three provisions of the European Convention – relating to freedom of assembly, the right to an effective remedy and the prohibition of discrimination. This ruling sends a message to authorities all over Europe.

It still happens that Gay Pride Parades are banned by authorities or are disrupted. This was the case last year in Chisinau, Moscow, Tallinn and Riga. More recently, the Chisinau local authorities once again banned a march despite the previous ruling of the Moldovan Supreme Court that a similar ban in 2006 was unlawful.

In Chisinau the demonstrators took the risk to march in spite of the denied permission. This has happened in other cases as well – including in Warsaw in 2005 – and these parades have generally been peaceful. When problems occurred, this was due to mob attacks against the marchers and the lack of police protection.

It is a sad fact that discrimination against individuals because of their sexual orientation is still widespread on our continent. During my visits to Member States of the Council of Europe I have repeatedly seen the signs and consequences of such prejudices. Individuals are victimised in their daily lives. Some live in constant fear of being exposed while others, who have “come out” into the open, are facing discrimination or even harassment. Their organisations have been made targets of hate speech.

Few politicians have fully stood up to this challenge. Instead, some of them have themselves fuelled the prejudices through stereotyped descriptions of homosexuals as dangerous propagandists who should not be allowed to be teachers or show their “lifestyle” to others. In discussions about demonstrations, some mayors and other politicians have made clearly intolerant and homophobic public statements. This kind of populism is most unfortunate and tends to “legitimise” discrimination.

The dehumanisation of lesbians, gays, bi-sexuals and transgender persons (LGBT) did not disappear with the Nazi rule, during which some 100,000 persons were arrested because of their presumed sexual orientation, and more than 10,000 were sent to concentration camps. Extreme right-wing groups still incite hatred and violence against LGBT persons. Some of the old Nazi “arguments” against homosexuals are again heard in public debates. Therefore, it is particularly important that politicians, religious leaders and other opinion-makers stand up for the principle that all people have human rights, irrespective of their sexual orientation.

The Council of Europe’s Congress of Local and Regional Authorities recently adopted recommendations on the need to protect the freedom of assembly and expression of LGBT persons, which ought to be studied carefully by local and regional politicians. The European branch of the International Lesbian and Gay Association is circulating an urgent appeal for the same freedoms - to be sent to the mayors of those cities where marches or other public events were banned, restricted or faced violence.

The legal norms are absolutely clear. The European Convention of Human Rights – which is part of national law in all Council of Europe countries - does not allow discrimination against persons because of their sexual orientation or gender identification. Guarantees against discrimination on any ground are provided in Article 14 of the Convention and in its Protocol No. 12. The Protocol, which is now in force in 14 countries, prohibits discrimination in the enjoyment of any right set forth by law as well as any discrimination by public authorities.

In significant rulings, the Strasbourg Court has decided that consensual sexual relations in private, between adults of the same sex, must not be criminalised; that there should be no discrimination when setting the age of consent for sexual acts; that homosexuals should also have the right to be admitted into the armed forces, and that same sex partners should have the same right of succession of tenancy as other couples. On the issue of parenting rights, the jurisprudence of the Court has evolved and it has ruled against discrimination on the grounds of sexual orientation for granting parental responsibility.

The Court has been more cautious on the question of adoption and largely left it to Member States to strike a reasonable balance. Of course, no one has the right to adopt – the best interest of the child must be the decisive consideration. However, the obvious human rights approach is that homosexuals should have same right as other adults to be considered as candidates when decisions are taken about who would be the best adoptive parent for a child in such need.

This is now the approach in several European countries, including Belgium, Denmark, Germany, Iceland, the Netherlands, Norway, Spain, Sweden and the United Kingdom. Some of these states also grant access to joint adoption by a homosexual couple. As for individual adoption by unmarried individuals, laws in most European countries do not discriminate on the grounds of sexual orientation.

The number of European countries that legally recognise same-sex partnerships with significant protection is increasing and already includes Andorra, the Czech Republic, Denmark, Finland, France, Germany, Iceland, Luxembourg, Norway, Slovenia, Sweden, Switzerland and the United Kingdom. In other countries, this debate is still in progress. Marriage offering full protection is already possible in Belgium, the Netherlands and Spain. Other countries, like Sweden, are likely to follow shortly.

In other words, homophobic policies are on the retreat. However, there is no room for complacency. Remaining prejudices will not disappear by themselves. Further measures should be taken for the protection of human rights of lesbians, gays, bisexuals and transgender persons:

• The legislation in several European countries needs to be reformed in order to ensure that LGBT people have the same rights as others;

• There should be a stronger reaction against officials who take decisions against the law, for instance by banning peaceful demonstrations, or who use their positions to spread prejudices against people because of their sexual orientation;

• History education should be reviewed with the purpose of ensuring that the Nazi crimes against LGBT persons as well as other aspects of their victimisation be objectively taught;

• Schools should give objective information about homosexuality and encourage respect for diversity and minority rights;

• Authorities should treat organisations advocating for rights of LGBT persons with the same respect as they are expected to pay to other nongovernmental organisations;

• Hate crimes against LGBT persons should also be seen as serious crimes;

• Courts as well as ombudsmen and other independent national human rights institutions need to address discrimination based on sexual orientation as a priority.

Thomas Hammarberg


European Court of Human Rights : Case of Bączkowski and Others v. Poland, 03.05.2007
Council of Europe Congress of Local and Regional Authorities : Recommendation 211 (2007) and Resolution 230 (2007) on “Freedom of assembly and expression for lesbians, gays, bisexuals and transgendered persons

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