A number of people around the world – including in Europe – continue to be stigmatised because of their actual or perceived sexual orientation and gender identity. In some cases these individuals are still being denied their right to education, health care, housing and work. Some of them are harassed by the police, get no protection when attacked by extremists or are deported to countries where they risk torture or execution. Also, some of their organisations are denied registration or are refused a permit to organise peaceful meetings and demonstrations. Too few leading politicians stand up against these or even worse homophobic and transphobic expressions.
It is sometimes said that the protection of the human rights of lesbians, gays, bisexuals and transgender people (LGBT) amounts to introducing new rights. That is a misunderstanding. The Universal Declaration of Human Rights and the agreed treaties establish that human rights apply to everyone and that no one should be excluded.
What is new is that there is now a stronger quest for this universal principle to be applied consistently. When grounds for not-allowed discrimination are listed in human rights treaties or such previous lists are interpreted, there are now clear references to sexual orientation. This also goes for the interpretation of the 1966 UN International Covenant on Civil and Political Rights. Also, the European Court of Human Rights has clarified in several judgments that discrimination on grounds of sexual orientation is not allowed. The EU’s Fundamental Rights Charter explicitly includes discrimination based on sexual orientation.
The idea is to make clear the obvious – that lesbians, gays, bisexuals and transgender people have the same rights as others. The international standards do apply to them as well. In other words, discrimination against anyone on the grounds of sexual orientation or gender identity is a human rights violation.
This is the main message of the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity. These principles, which were adopted after an expert meeting in Yogyakarta in Indonesia in 2006, identify the obligations of States to respect, protect and fulfil the human rights of all persons, regardless of their sexual orientation(1) or gender identity(2).
The Principles are the unanimous result of discussions between 29 independent international human rights experts from different parts of the world, of whom almost half have served in United Nations treaty committees or as special rapporteurs. One of the experts was the former High Commissioner for Human Rights Mary Robinson(3).
In the introduction to the Principles the experts make clear that they do not ask for new norms, only that those existing should be respected. They state that it is critical to clarify State obligations under agreed international human rights law in order to promote and protect all human rights for all persons on the basis of equality and without discrimination.
Therefore, the Yogyakarta document goes further than just defining the principles, it also spells out the State’s obligations. It asks for legislative and other measures to prohibit and eliminate discrimination against individuals because of their sexual orientation or gender identity. Legislation and action plans against discrimination should include this type of discrimination as well. Laws should be repealed which criminalise consensual sexual acts between people of the same sex(4).
The document also requests governments to take concrete action to counter prejudices through education and training. Steps should be taken to dispel discriminatory attitudes or behaviours which are built on the idea that any sexual orientation or gender identity is superior or inferior.
One particularly important chapter in the document relates to the implementation of the principle of the right to security of persons. In this chapter it is recommended that governments do the following:
• Take all necessary policing, or other, measures to prevent and provide protection from all forms of violence and harassment related to sexual orientation and gender identity;
• Take all necessary legislative measures to impose appropriate criminal penalties for violence, threats of violence, incitement to violence and related harassment, based on the sexual orientation and gender identity of any person or group of persons, in all spheres of life, including the family;
• Take all necessary legislative, administrative or other necessary measures to ensure that the sexual orientation and gender identity of the victim may not be advanced to justify, excuse or mitigate such violence;
• Ensure that preparation of such violence is vigorously investigated, and that, where appropriate evidence is found, those responsible are prosecuted, tried and duly punished, and that victims are provided with appropriate remedies and redress, including compensation;
• Undertake campaigns of awareness-raising, directed at the general public as well as actual and potential perpetrators of violence, in order to combat the prejudices that underlie violence related to sexual orientation and gender identity.
Such steps are necessary. During my mission travels I have been confronted with some of the realities behind the aggressive intolerance of those who are perceived as different. I have met individuals who live in fear of being exposed and others who have ‘come out’ but suffer serious consequences.
Transgender persons are humiliated. Some of them have been denied necessary healthcare and have been confronted with medical practitioners who refuse to provide gender reassignment therapy. Others have been prevented from having a change of name in passport or identification documents or only managed such a change after having gone through de-humanising procedures that are currently in place in many States.
The prejudices in this area are indeed very deep, not least in countries with a recent past of dictatorship and absence of free discussion. Unfortunately, some religious preaching has also been influenced by similar tendencies and generally not been helpful in the defence of human rights of LGBTs. Advocacy against homophobia is clearly not opportune in a number of countries. This underlines the importance of broader and more systematic education and awareness efforts and more principled positions by leading politicians. I believe that the Yogyakarta Principles are important in this endeavour.
I recommend all governments of the Council of Europe member states to study the document and build on its principles through concrete action. In fact, some of the member states have already made them an integral part of their human rights policies. For my part, I fully endorse the Principles.
1. The Yogyakarta document states that the term ‘sexual orientation’ refers to "each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender."
2. The document defines ‘gender identity’ with reference to "each person’s deeply felt internal and individual experience of gender which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms."
3. Other Europeans among the experts are Maxim Anmeghichean (Molodova), Yakin Erturk (Turkey), Judith Mesquita (United Kingdom), Manfred Nowak (Austria), Michael O’Flaherty (Ireland), Dimitrina Petrova (Bulgaria), Nevena Vuckovic Sahovic (Serbia), Martin Scheinin (Finland), Stephen Whittle (United Kingdom) and Roman Wieruszewski (Poland).
4. More than 80 countries still criminalise consensual same-sex acts and at least seven maintain the death penalty.