Commissioner tells ILGA that gays are denied “core human rights”

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Freedom of assembly, freedom of expression and the right to life, liberty and security are often not applied to lesbian, gay, bisexual and transgender (LGBT) persons, a Council of Europe commissioner has said.

Thomas Hammarberg was addressing the International Gay and Lesbian Association Europe’s conference, Thinking Globally, Acting Locally in Vienna last Friday.

He was elected as the Council of Europe’s Commissioner for Human Rights in 2005 by the Parliamentary Assembly.

The 47-member Council of Europe predates the European Union.

It promotes and protects democracy, educational and sporting co-operation and created the European Court of Human Rights.

“The human rights of LGBT persons and gender identity and sexual orientation as grounds for discrimination are only recognised and respected in a very limited number of countries in the world,” he said.

“Even in some of the Council of Europe Member States LGBT persons are often excluded from protection under anti discrimination legislation. I encounter this often during my missions.

“That is why it is so important that Europe sets the standards.

“I am in this regard worried about current discussions in some EU Member States whether to support the proposed single EC Anti-Discrimination Directive which would prohibit discrimination on the grounds of age, disability, sexual orientation, race/ethnicity and religion or belief in the areas of social protection, including social security and health care, education and access to and supply of goods and services, including housing.

“This would bring an end to the current hierarchy in discrimination grounds, altough I remain concerned about the lack of gender identity being explicit part of the proposed EC Directive.

“My understanding is that the current EC Gender Directive only applies to post-operative transsexuals, which leaves approximately 90% of the transgender community not covered.

“This has to be clarified – all transgender persons should be protected against discrimination on the same footing as other groups.”

Mr Hammarberg said he was concerned about the lack of correct implementation of universal human rights on a national and local level.

“The persisting pattern of freedom of assembly being denied to gay Pride march organisers,” he said.

“Moldova tops the list with five Pride marches in a row not being ‘permitted’ despite a Supreme Court ruling in favour of the freedom of assembly for LGBT persons.

“Currently there are similar cases in Ukraine and the Russian Federation which I am closely monitoring.

“The patterns of hate crimes and hate motivated incidents against LGBT persons and the lack of appropriate response of law enforcement officials;

“Cases in the Russian Federation and Turkey where LGBT organisations face denial of being registered due to not meeting ‘moral’ standards;

“The lack of support from National Human Rights Institutions or Ombudsperson, who do not consistently give appropriate attention to human rights violations based on sexual orientation and gender identity even if the information is available and complaints are submitted;

“Lack of recognition that LGBT activists are human rights defenders.

“During my missions I have come across examples where mainstream human rights NGOs would not (dare to) stand up for LGBT persons, or if they do, they face aggressive response or even death threats.”

Mr Hammarberg said that the next ten years would see progress on trans rights.

“The Fundamental Rights Agency study on homophobia and discrimination based on sexual orientation and gender identity revealed that there is unawareness in many EU Member States on how to combat discrimination based on gender identity,” he said.

“In some States it is regarded as a form of ‘sex’ discrimination, in others – wrongly so – as discrimination based on sexual orientation and in again other States, there is simply no answer to this question.

“The problems at stake go to the very roots of what human rights are: the protection of the most vulnerable in society, the integrity of the human body and the right to be free from inhumane treatment.

“On November 18th I have invited 10 transgender experts from different Council of Europe Member States to inform me on the issues at stake in greater detail.

“Finally, States are eager to deny that human rights violations and discrimination based on sexual orientation and gender identity exist in their territories.

“NGO reports are not always taken seriously. I see a big need for more and comparable data on transphobia, homophobia and discrimination based on gender identity and sexual orientation. ”

In July the European Commission adopted a proposal for a directive which provides for protection from discrimination on grounds of age, disability, sexual orientation and religion or belief beyond the workplace.

All goods and services which are commercially available to the public, including housing, will be covered by the directive.

EU directives are legislation that requires member states to, for example, deal with discrimination, but leaves it up to the states to decide on the best course of action to take.

There is at present no EU law protecting LGB people from discrimination in areas such as goods and services which exist for race and gender.

All forms of discrimination at work are already covered by directives.

The directive will cover direct and indirect discrimination as well as harassment and victimisation.