LGBT Rights within the Council of Europe framework: the Principle of Non-Discrimination

Vasco P. da Silva

Within the political and legal framework provided by the Council of Europe, several recommendations have been presented to its 47 Member States concerning the topic of the LGBT rights. The most crucial has been the request for signature and ratification of Protocol No. 12 to the European Convention on Human Rights (“ECHR”) on the general prohibition of discrimination.i But no effectiveness can be achieved, in practice, without the enactment of comprehensive legislation on non-discrimination in the domestic level, with an express mention to ‘sexual orientation and gender identity’.ii Other matters have been raised either by the Parliamentary Assembly of the Council of Europe (“CoE”) or the Council of Ministers such as the necessity to respect freedom of speech and assembly of the LGBT community and also the recognition for the preferred gender of transgender individuals.iii

It was only during the second half of the last century that the LGBT community has become more active within the human rights movement. Legally speaking, even if for different periods of time, same-sex relations were criminalised in nearly all the CoE’s States.iv Decriminalisation in Europe took approximately three centuries (between 18th century and the 21st century). At the moment, none of the CoE Member States criminalises on the grounds of sexual orientation, which does not mean that discriminating cases were banned.v

Two major lines of reasoning have been associated with the known cases of discriminatory action against the LGBT community: the criminalisation of homosexual behaviour and its classification as a disease in the medical area.vi Both situations have enhanced stigma against this group. Furthermore, neither the process of decriminalisation nor the removal of homosexuality from the list of diseases has changed mentalities.vii Public opinion is in fact still influenced by outdated classifications and incorrect information on homosexuality, which still justifies the idea that it shall, as an illness, be treated. In the particular case of transsexualism, the World Health Organisation still lists it as a mental and behavioural disorder in the International Classification of Diseases.viii

Looking at the legal instruments provided by the CoE to combat discrimination, one shall firstly refer to the ECHR itself and its Article 14. This provision is said not to have an independent existence, in the sense that it needs to be combined with other articles of the Convention to be applicable. It is therefore quite similar to Article 2 of the ICCPR. The other instrument is Protocol No. 12 to the ECHR which has a general scope of application on the prohibition of discrimination. In both cases sexual orientation and gender identity were omitted. Nevertheless, both the European Court of Human Rights’ (“ECtHR”) case-law and the commentary to the Protocol make clear that it encompasses a non-exhaustive list of grounds of non-discrimination.ix The ECtHR confirmed in 1999 that sexual orientation is a discrimination ground covered by Article 14 of the Convention.x Nevertheless, as early as 1981 the Court had found in Dudgeon v. United Kingdom that discrimination in the criminal law regarding consenting relations between same-sex adults in private was contrary to the right to respect for private life in Article 8 ECHR.xi Similarly, in 2010, the Court explicitly mentioned the specific case of transsexuality.xii

The principle of non-discrimination is also included in several other CoE thematic conventions. The same applies to the revised European Social Charter and its Article E. Further steps in matters of LGBT rights have been taken in different instruments within the framework of the Council of Europe and its bodies. Just to name the most recent: Message from the Committee of Ministers to steering committees and other committees involved in intergovernmental co-operation at the Council of Europe on equal rights and dignity of lesbian, gay, bisexual and transgender persons; Recommendation No. R (97) 20 of the Committee of Ministers to member states on “hate speech”; Recommendation 1915 (2010) of the Parliamentary Assembly – Discrimination on the basis of sexual orientation and gender identity; Resolution 1728 (2010) of the Parliamentary Assembly – Discrimination on the basis of sexual orientation and gender identity. Particular relevance shall be given to Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity,xiii the most recent act in this field.xiv

Notwithstanding the fact that several measures have been taken at European level in order to contribute to the enactment of effective domestic legislation with regards to the protection of the LGBT rights, particularly the referred Recommendation of 2010, nine member States of the CoE persist in not having a sectoral and comprehensive non-discrimination legislation covering sexual orientation.xv Nonetheless, positive steps keep being taken by the ECtHR in order to enhance the principle of non-discrimination with regards to sexual orientation in Europe, which will hopefully lead to necessary change in the domestic legislations of the Parties to the ECHR.xvi

About the Author

Vasco P. da Silva is a Master degree candidate in European and International Law at KU Leuven, Belgium. In the period 2012-2013, he was the Vice President for Academic Activities of the European Law Students’ Association, the world’s largest independent, non-political, non-profit-making law students’ organisation. During his years as Bachelor student at the University of Porto, he occupied diverse positions in student representation. He is a young jurist focused on the law of the External Relations of the EU and passionate about the management of legal education and international human rights related projects.

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i Discrimination on grounds of sexual orientation and gender identity in Europe (Council of Europe, 2nd edition, Council of Europe Publishing 2011)

https://www.coe.int/t/commissioner/Source/LGBT/LGBTStudy2011_en.pdf accessed on 11 November 2014, 11.

ii Ibid.

iii Ibid, 13.

iv Ibid, 22; Kees Waaldijk, ‘Civil Developments: Patterns of Reform in the Legal Position of Same-sex Partners in Europe’ (2000) Canadian Journal of Family Law 17(1) 62-64 https://openaccess.leidenuniv.nl/bitstream/handle/1887/5228/6_170_067.pdf?sequence=1 accessed on 11 November 2014

v Discrimination on grounds of sexual orientation and gender identity in Europe (n 2) 22.

vi Ibid, 23; Human Rights Council, ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover’ (2010) A/HRC/14/20, paragraph 22, http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.20.pdf accessed on 11 November 2014

vii Only in 1990 did the World Health Organization (WHO) remove homosexuality from the International Statistical Classification of Diseases and Related Health Problems (ICD).

viii Discrimination on grounds of sexual orientation and gender identity in Europe (n 2) 23.

ix Discrimination on grounds of sexual orientation and gender identity in Europe (n 2) 37.

x European Court of Human Rights, Mouta v. Portugal, Application No. 33290/96, judgment of 21 December 1999.

xi European Court of Human Rights, Dudgeon v. United Kingdom, Application No. 7525/76, judgment of 24 February 1983.

xii European Court of Human Rights, P.V. v. Spain, Application No. 35159/09, judgment of 30 November 2010, paragraph 30.

xiii See, Committee of Ministers Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity – Explanatory Memorandum to the Recommendation, CM(2010)4 add3 rev2E, 29 March 2010, https://wcd.coe.int/ViewDoc.jsp?id=1606669 accessed on 9 November 2014.

xiv For previous instruments see, Combating discrimination on grounds of sexual orientation or gender identity – Council of Europe standards (Council of Europe, Council of Europe Publishing 2011) http://www.coe.int/t/dghl/standardsetting/hrpolicy/Publications/LGBT_en.pdf accessed on 10 November 2014

xv Discrimination on grounds of sexual orientation and gender identity in Europe (n 2) 43.

xvi In this regards, see the compiled information on the most relevant Court’s decisions, ‘Factsheet – Sexual orientation issues‘, http://www.echr.coe.int/Documents/FS_Sexual_orientation_ENG.pdf accessed on 11 November 2014

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