Commissioner for Human Rights
Council of Europe
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STRASBOURG, May 14, 2008 – 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
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
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
• 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.
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
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
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.
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Posted: 14 May 2008 at
17:00 (UK time)