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| www.coe.int/hrlawpolicy | |
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Human Rights |
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Accession |
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External relations |
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Presentation of our activities |
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Other Topics |
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Finally, the case-law of the Court has been essential in combating discrimination on grounds of sexual orientation and gender identity, regularly recognising violations of the various articles of the Convention insofar as the human rights of LGBT persons were at stake.
Until 2008 there had been no specific action on the protection of the fundamental rights of LGBT persons within the Committee of Ministers, apart from the replies to the Parliamentary Assembly recommendations and questions. The only indirectly relevant recommendations adopted so far dated back to 1997 and concerned respectively “ hate speech” and “ the media and the promotion of a culture of tolerance”, which did not explicitly refer to LGBT persons, but which the Committee of Ministers invited States to implement also in respect of LGBT persons.
Following the initiative of a group of member States which led to action proposals made by the Secretary General, the Committee of Ministers decided, in July 2008, to undertake a more focused action. It took three decisions:
Instructed the Steering Committee on Human Rights (CDDH) to prepare a
recommendation on discrimination based on sexual orientation and gender
identity; |
Instructed the European Committee on Legal Co-operation (CDCJ) to
examine the topic of various forms of marital and non-marital
partnerships and cohabitation with a view to identifying possible
measures to avoid discrimination on grounds of sexual orientation or
gender identity and to report back; |
Sent a message to all CoE intergovernmental committees inviting them to
give due attention in their current and future activities to the need to
avoid and remedy any discrimination on grounds of sexual orientation or
gender identity and to make proposals for specific activities designed
to strengthen, in law and in practice, the equal rights and dignity of
LGBT persons and to combat discriminatory attitudes against them in
society.
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As affirmed in this message “the Council of Europe’s standards of tolerance and non-discrimination apply to all European societies, and discrimination on grounds of sexual orientation or gender identity is not compatible with these standards.”
The most prominent result of these decisions (although not the only one) is the adoption by the CM of the Recommendation on measures to combat discrimination based on sexual orientation or gender identity, adopted on 31 March 2010, which is the first legal intergovernmental instrument in Europe, and in the world, dealing specifically and comprehensively with this form of discrimination. |
CM Rec(2010)5 |
It identifies specific measures to be adopted and effectively enforced by member states in order to combat discrimination, to ensure respect for human rights of lesbian, gay, bisexual and transgender persons and to promote tolerance towards them.
It has been drafted by a Committee of experts from the governments of member States, with the support of experts from civil society, including Amnesty, ILGA Europe, Transgender Europe, and from international bodies such as the FRA and the OSCE, and adopted by the representatives of all 47 member States in the Council of Europe.
The main recommendations to member States contained in Rec(2010)05 are the following:
| 1. examine existing legislative and other measures, keep them under review, and collect and analyse relevant data, in order to monitor and redress any direct or indirect discrimination on grounds of sexual orientation or gender identity; | 2. ensure that legislative and other measures are adopted and effectively implemented to combat discrimination on grounds of sexual orientation or gender identity, to ensure respect for the human rights of lesbian, gay, bisexual and transgender persons and to promote tolerance towards them; | 3. ensure that victims of discrimination are aware of and have access to effective legal remedies before a national authority, and that measures to combat discrimination include, where appropriate, sanctions for infringements and the provision of adequate reparation for victims of discrimination. |
In addition, the recommendation contains, in its Appendix, a number of relevant principles and concrete measures for each area in which relevant Human Rights standards are set out, by the Convention, by the European Social Charter or other instruments: Right to life, security and protection from violence, Freedom of association, Freedom of expression and peaceful assembly, Right to respect for private and family life, Employment, Education, Health, Housing, Sports, Right to seek asylum and multiple discrimination.
Finally, when adopting Recommendation CM/Rec(2010)5 the Committee of Ministers also agreed to examine the implementation of the recommendation two years after its adoption.
The CM recommendation is referred to and echoed in the Resolution and in the Recommendation on discrimination on the basis of sexual orientation or gender identity subsequently adopted on 29 April by PACE. The Resolution and the Recommendation were adopted on the basis of a Report (prepared by Andreas Gross), which contains a thorough analysis of the situation in CoE member States, of existing stereotypes, prejudices and forms of discrimination and of factors which could contribute to develop a human rights compatible approach and to positive changes in attitudes and legislation towards LGBT persons.
The PACE Resolution 1728 (2010), addressed to member States, also refers specifically to gender-based violence against LBT women, and calls on States to ensure legal recognition of same-sex partnerships when national legislation envisages such recognition, by providing notably for the same pecuniary rights and obligations as those pertaining to different-sex couples, for the recognition of the "next of kin" status, and for the possibility for joint parental responsibility of each partner’s children. The PACE Recommendation 1915(2010) invites the CM to monitor the implementation of its own recommendation and to define further CoE action (including mainstreaming, monitoring, awareness-raising, bullying at school etc.).
