Council of Europe report on LGBT citizens’ state in member countries

Thomas Hammarberg

“Millions of people in Europe are discriminated, stigmatised and even victims of violence because of their actual or perceived sexual orientation or gender identity.” Commissioner for Human Rights Thomas Hammarberg.

“They cannot fully enjoy their universal human rights. There is an urgent need for all European governments to remedy this situation and take policy and legislative measures to combat homophobia and transphobia”, says Hammarberg.

 

Council of Europe has presented a report on LGBT citizens’ state around European countries. The report is the result of a two-year study. It contains a socio-legal analysis of the situation of lesbian, gay, bisexual and transgender people across the 47 Council of Europe member states, relying on data and information made available by public authorities, national human rights structures, non-governmental organizations and experts.

Hammarberg adds, “There is considerable resistance among many people, including political leaders, to discuss the full enjoyment of universal human rights by LGBT persons. Even if this may not be a popular human rights topic, the time has now come to take the discussion forward and make it concrete. Converging efforts by the Council of Europe, the European Union, the OSCE and the UN are essential for ensuring the full enjoyment of universal rights by LGBT persons everywhere.”

Decriminalisation: Among Council of Europe member states Armenia is the last one to decriminalise homosexuality in 2003. Azerbaijan had had done it in 2001. Georgia did it in 2000. France is the leader – long before the existence of Council of Europe, after the ‘Prise de la Bastille’ (The Storming of Bastille) and during the revolution – 1791! Turkey did it in 1858!

Transgenders: Armenia is among those countries which have no particular legislation regulating the legal gender recognition. Also, there is no evidence to claim that Armenia, among several other countries, offers the possibility for transgender persons to have their preferred gender legally recognised in an alternative manner (in the absence of legislation). In 13 other member states transgender persons are able to have their new gender legally recognised, either through going to court or by certain administrative practices or decrees.

The research confirms that many victims of hate crimes do not report incidents of violence and harassment because of fear of exposure of their sexual orientation or gender identity or because of the lack of trust in the judiciary.

Twenty-six member states have explicitly recognised in their national legislation that sexual orientation is included in the notion of “membership of a particular social group.” In other member states there is no explicit mention in their legislation.

There are, however, at least seven other member states which, even in the absence of such explicit recognition, have had asylum claims in which sexual orientation has been recognised as a ground for persecution evidenced by decisions of national competent bodies in these countries.

In the other 12 member states, including Armenia, which are parties to the 1951 Convention, there is no explicit recognition of persecution on the basis of sexual orientation as a valid ground for asylum claims either in legislation or in actual successful cases filed by LGBT asylum seekers.

Negative attitudes towards LGBT persons are also shaped by religious beliefs, such as that LGBT persons are sinful and acting against religious teaching. Such arguments draw upon a particular interpretation of religion to support the view that LGBT persons are detrimental to religion or religious believers.

In a significant number of member states, including Armenia, Azerbaijan, the Russian Federation and Turkey, NGOs report that schools do not provide any information about homosexuality or if so, only biased information. Such schoolbooks and teaching materials tend to present incorrect information not reflecting the WHO declassification of homosexuality. In Moldova, for instance, according to NGO reports, at the Medical University homosexuality is taught as a disease from text books written when it was still criminalised.

LGBT NGOs have been formed in nearly all member states. LGBT NGOs in some member states of the Council of Europe face challenges on the most basic level: to register their organisation and statutes. Restrictions on the freedom of association have been observed in five member states during the period of 2004-2010: Armenia, Azerbaijan, the Russian Federation, Turkey and Ukraine. Such restrictions by the authorities are usually motivated on the ground that the founding documents and the scope of the association are contrary to the national law. Authorities have also used the argument that the scope of the association is in contrast to or undermines national moral values. Furthermore, administrative issues may arise in relation to registration formalities. Problems with the registration of the statutes of LGBT associations have also been registered in Armenia, Azerbaijan and Ukraine. In Armenia, NGOs report being unable to include in their statutes references to LGBT issues, sexual orientation or gender identity, although the authorities have denied that this is the case.

Armenia is in the list of those countries that had no large public, cultural or Pride events.

Several member states have specialised legislation in different fields, which includes non-discrimination provisions prohibiting discrimination on the ground of sexual orientation or gender identity. By way of example, in Georgia, the Law on the Rights of the Patient (Article 6) as well as the Law on the Protection of Health (Article 6) explicitly prohibit discrimination due to sexual orientation.

National structures for promoting equality possess great potential for dealing with complaints on grounds of sexual orientation and gender identity as well as promoting the enjoyment of human rights by LGBT persons more generally. However, awareness of these possibilities should be enhanced among LGBT communities as well as within national structures themselves. The Human Rights Defender of Armenia, for example, noted that his office receives a large number of complaints about discrimination from minorities, but has not registered any from LGBT persons. He concludes that this “is the best proof that the problem is bigger than assumed and well hidden”.

Many LGBT NGOs interviewed for this study expressed the view that national structures were not sufficiently active in this field. Although an increasing number of equality bodies, although ombudsmen and human rights national institutions appear to work on questions related to sexual orientation and homophobia, even more efforts are needed to initiate work to address discrimination on the grounds of gender identity.

In some member states, being gay or lesbian is viewed as a “betrayal” of national values and unity. Such arguments may be grounded on a specific understanding of the nation or the state which aims to preserve the homogeneity of the nation. For example, an interlocutor from the authorities explained that in Armenia being homosexual is often seen as disloyal to the traditional values of the Armenian people.

Sevak Kirakosyan

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