Combating discrimination on the grounds of sexual orientation or gender identity

LGBT ISSUES AT THE COUNCIL OF EUROPE

 

European Social Charter

Rights of LGBT persons and the European Social Charter

The European Social Charter (the Charter) guarantees a very wide range of social and economic human rights, from housing, health and education to legal and social protection, employment, free movement of persons and non-discrimination. The Charter is of crucial importance in the protection of the rights of LGBT persons, to whom all its provisions apply. Their implementation by States Parties is supervised by the European Committee of Social Rights (the Committee).

The Charter’s non-discrimination clause (Article E) prohibits any kind of discrimination. Even if it is not mentioned explicitly in Article E, sexual orientation has been retained as a prohibited ground by the Committee. Discrimination is defined as a difference in treatment between persons in comparable situations or as a same treatment of persons in a different situation. Discrimination may also occur when a measure or practice identical for everyone affects negatively persons having a particular characteristic without a legitimate aim.

Specific reference to the rights of LGBT persons in the case law of the Committee is becoming more and more frequent:

In addition to the general non-discrimination clause (Article E), Article 1§2 of the Charter specifically prohibits discrimination in employment (on any ground, including sexual orientation), i.e. discriminatory acts and provisions that may occur in connection with recruitment or with employment conditions in general (e.g. remuneration, training, promotion, transfer, dismissal). In its 2006 Conclusions on Article 1§2, the Committee expressly asked States whether discrimination on grounds of sexual orientation in the employment field is prohibited. The Conclusions to be adopted in December 2012 will examine the answers given by States Parties in their report.

In its decision in Interights v. Croatia (Complaint No. 45/2007, decision on the merits of 30 March 2009, §§60-61), the Committee found that homosexuals were described and depicted, in the context of sexual and reproductive health education, in a particularly negative and distorted manner, leading to a violation of Article 11§2 of the Charter in the light of the non-discrimination clause. As a result of the decision, the authorities have withdrawn the impugned school manual.

As for transgender persons, there is, to date, only one direct reference in a conclusion concerning access to health care (Malta, 2009, Article 11§1), in the sphere of hormone therapy and sex change surgery, where the Committee asks for the next report (to be sent by 31 October 2012) to describe the situation.

How can the Committee’s attention be drawn to specific matters yet unaddressed?

Two avenues possible for NGOs and trade unions to make their concerns known:

  • In the framework of the reporting system, provide the Committee with comments on national reports containing information in relation to provisions examined by the Committee, and which show the national situation under another light than the official report, enabling the Committee to have a more comprehensive view of the situation and reach an informed conclusion (for instance, the International Lesbian and Gay Association (ILGA) – Europe has made several submissions, in particular in the current 2012 cycle with regards to the Russian Federation, Turkey and Ukraine).
  • Through the lodging of a collective complaint with the Committee on specific issues coming with the scope of the provisions of the Charter.

(For more information, please refer to the European Social Charter website)