LGBTI asylum seekers are often at risk of additional danger because of their SOGIESC during their journey and upon arrival in the country where they seek asylum, which can take the form of harassment, exclusion, sexual violence, or other forms of violence. Often but not always, they qualify as vulnerable persons with specific needs in legal assistance, reception conditions, healthcare, and others throughout the asylum process.

The policy brief presents concrete proposals of legislative and policy initiatives to be included in the EU LGBTI Strategy. 

We are delighted that ILGA-Europe’s events draw such a wide variety of
participants and we are committed to the fullest possible participation and want to make sure that no one is put off by the actions, language and attitude of others.

In ILGA-Europe’s view, LGBTI organisations have a key role to play in fighting against stigma affecting LGBTI sex workers, both within and outside the LGBTI community.

Empowerment, combatting exclusion, and ‘nothing about us without us’ – these principles are at the core of our new policy.

Entitled ‘Empowering LGBTI sex workers towards the full respect of their human rights’, it outlines three key steps that we all collectively must take to ensure the rights of sex workers are protected:

• Combatting structural discrimination and social exclusion of LGBTI people
• Calling for decriminalisation as a cornerstone for protecting the human rights of sex workers
• Working towards the full inclusion of the voices of sex workers in the LGBTI community

LGBTI sex workers have always been part of the LGBTI movement; the names of Marsha P. Johnson and Sylvia Riveria are not just historical references, their experiences at Stonewall shaped Pride events and the global LGBTI movement as we know it today. And yet, many sex workers are excluded from modern-day LGBTI activism.

In ILGA-Europe’s view, LGBTI organisations have a key role to play in fighting against stigma affecting LGBTI sex workers, both within and outside the LGBTI community.

This is why ILGA-Europe commit to raising awareness within the LGBTI community on the human rights violations which LGBTI sex workers are facing, and to addressing stigma against sex workers and supporting them to be more visible within the LGBTI community.

ILGA-Europe aim to achieve equality for intersex people and ensure they are protected against human rights violations, discrimination and violence based on sex characteristics.

ILGA-Europe aim to include the needs of intersex people in all our work. One of ILGA-Europe’s key role is to contribute to raising awareness about the ongoing discrimination faced by intersex people in our societies, and to enable LGBT organisations to be supportive and inclusive of intersex human rights concerns and intersex people.

Specifically, we want to contribute to ensuring the full respect of the right to bodily integrity of intersex people.

We also call for quick, transparent and accessible legal gender recognition procedures, available to intersex persons, and based on self-determination. Information about those procedures needs to be easily available and understandable.

We advocate for non-discrimination legislation and policies that protect intersex people, as well as specific measures tackling hate crime and incitement based on sex characteristics.

With this briefing, ILGA Europe sets out how to ensure that the proposed EU directives and regulations will protect the rights of LGBTI asylum seekers, and respect their specific needs in terms of reception conditions, procedures and protection status.

ILGA-Europe’s key demands:

• The new Qualification Regulation, the Reception Conditions Directive and the Procedure Regulation should enhance protection, reception and procedural standards offered to people persecuted on the ground of their sexual orientation, gender identity, gender expression and sex characteristics.
• Outdated or inappropriate language excluding trans and intersex people or linking LGBTI people to criminal practices should be removed.
• The definition of the asylum seeker’s family members should be improved to clearly include same-sex partners and their families.
• People belonging to persecuted minorities, including LGBTI people, should not be subject to accelerated procedures, like lists of safe countries of origin, safe third countries, etc.

This paper was composed by ILGA-Europe, on behalf of Sarajevo Open Centre, to inform decision-makers in both the EU and its accession countries in the Western Balkans about advocacy priorities regarding LGBTI issues in the region in the coming year.

The situation for LGBTI people is at a pivotal moment in most accession countries. Much has been achieved over the last years, mainly due to EU accession process, with key developments in anti-discrimination and hate crime legislation, respect for freedom of assembly and expression, and an increase in the number and capacity of LGBTI civil society organisations.

Yet much is left to be done to ensure the human rights of LGBTI persons in the region. This is a unique moment in time for taking the next steps. Governments in the region are keen to progress in order to join the EU, which provides an opportunity for the LGBTI movement to reach further to achieve several key aims, including effective implementation of existing legislation across urban and rural areas, promoting an enabling environment for civil society, and pushing for adoption of legal gender recognition and registered partnership for same sex couples.

This paper sets out the state of play and overarching policy aims for the region as a whole in the coming years, as well as shedding light on each country specifically. It wascomposed by ILGA-Europe, on behalf of Sarajevo Open Centre, to inform decision-makers in both the EU and accession countries about advocacy priorities regarding LGBTI issues in the coming years. The paper is based on interviews with and input from LGBTI organisations active in the region: ProLGBT (Albania), SOC and UNDP (Bosnia), CSGD (Kosovo*), Subversive Front and LGBT Support Center (‘The former Yugoslav Republic of Macedonia’), Queer Montenegro (Montenegro), Labris and Gayten (Serbia), ERA – LGBTI Equal Rights Association for the Western Balkans and Turkey, Civil Rights Defenders, Trans Network Balkan and TGEU (regional).

A significant number of people applying for asylum in EU Member States are lesbian, gay, bisexual, trans or intersex (LGBTI). Some of them flee persecution unrelated to their sexual orientation or gender identity (e.g. their political activity) while others are at risk of persecution precisely because of their sexual orientation or gender identity. In both cases, their sexual orientation or gender identity can be a ground for protection under the Refugee Convention and under EU asylum law, depending on the situation in their home country and on their case.

On top of that, LGBTI asylum seekers are often at risk of additional danger during their journey and upon arrival in the country where they seek asylum, which can take the form of harassment, exclusion, sexual violence, or other forms of violence. Often but not always, they qualify as vulnerable persons with specific needs in terms of legal assistance, reception conditions, healthcare, etc. 

Position on the right to the highest attainable standard of health of lesbian, gay, bisexual, trans and intersex (LGBTI) people

ILGA-Europe advocates for policies and laws that fully respect, protect and fulfill the right to health of LGBTI people. This implies not only negative obligations (prohibiting policies that violate the physical integrity of LGBTI people) but also positive measures (facilitating access to services, promoting healthy behaviours, etc.).

Therefore, ILGA-Europe calls for the removal of all discriminatory legislation, policies and practices in the area of health. LGBTI people must have access to appropriate and patient-centered healthcare systems that fully meet their health needs.

The identities of LGBTI people should not be pathologised or their bodies medicalised. Individuals who need or wish specific treatments should be informed about their long-term consequences, and those treatments should then be made accessible and affordable.

Position on partnership and parenting, adopted in October 2006, revised in 2014.

ILGA-Europe strives for equality in law, public policies and practices relating to any form of partnership (including marriage, registered partnership and cohabitation) and parenting (reproductive rights, adoption, fostering and parental responsibility). ILGA-Europe particularly strives for the elimination of restrictions on the rights and responsibilities of partners and parents based on sexual orientation, gender identity or gender expression. Furthermore, ILGA-Europe supports an inclusive understanding of family that is not dependent only on the legal status of marriage or partnership but also on the recognition of de facto family links. Most importantly, the rights of the child are at the core and guiding ILGA-Europe’s demands for recognition of diverse families.

ILGA-Europe’s position is based on international human rights standards. It respects the principle of indivisibility of human rights and establishes no hierarchy between rights and freedoms, including freedom of thought, conscience and religion. It can by no means be understood as an attempt to limit the expression of different opinions in the frame of legitimate political debates relating to the rights of LGBTI people.

General principles

• ILGA-Europe calls on public authorities to adopt comprehensive strategies to combat prejudice and to promote dialogue, education and mutual respect to achieve full inclusion of lesbian, gay, bisexual, trans and intersex (LGBTI) people in a society free from intolerance.
• ILGA-Europe believes that public authorities must guarantee LGBTI people’s freedom of expression, a necessary condition to combat intolerance, prejudice and incitement.

Comprehensive action against prejudice

• ILGA-Europe calls on governments, legislatures, independent equality bodies and other public authorities to implement sound anti-discrimination and awareness raising policies in their respective remit. This includes mechanisms to tackle and react to manifestations of intolerance and prejudice in all relevant sectors.
• The area of education is a priority in that respect. Another priority is the professional training of all relevant public sector professionals. Public information campaigns are equally necessary, particularly in areas such as intolerance on-line or in sports.
• The media and their professional organisations should be encouraged to develop and respect codes of conduct reflecting equality principles and to provide specific training to their staff, including on issues related to sexual orientation, gender identity and gender expression.
• All relevant stakeholders should cooperate with civil society organisations, including community-based organisations, in order to build on their expertise.

Prohibition of incitement to discrimination, hostility and violence

• ILGA-Europe calls on legislators to prohibit incitement to discrimination, hostility and violence on all grounds, including sexual orientation, gender identity and gender expression, in the respect of international human rights standards (UDHR, ICCPR, ECHR). Victims should be provided with a range of appropriate remedies, including civil law redress mechanisms and the right to reply.
• Prohibition of incitement must always be provided by law, be necessary and proportional to its objective. Relevant prohibiting provisions should be consistent with anti-discrimination and criminal legislation. They should not create penalties that would be more severe than the sanctions applicable to cases of actual discrimination, hostility and violence.
• Legislation should define clear guidelines for Courts to assess all incitement cases in a coherent way, on the basis of well-defined criteria.

This submission, collated by ILGA-Europe, includes various concerns regarding the implementation of Article 9 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. It also elaborates how the absence of class action and the NGO’s inability to pursue test cases without the identification of a victim limits the impact of the Directive.

In preparation towards this paper, ILGA-Europe launched a call to its EU-based member organisations to collect fresh evidence of inadequate implementation and we received responses from Austria, Germany, the Netherlands, Poland, Spain, Sweden and the United Kingdom with a varying level of detail. However, in spite of our best intentions, we were not in a position to prepare a paper which provides an exhaustive list of concerns and implementation breaches. This is due to many reasons, including the fact that in several countries NGOs are unable to represent victims of discrimination due to legal, administrative or other barriers, and also the fact that not all organisations have the required resources to represent cases adequately.

In view of this, we call on the European Commission to treat this paper as yet another source of evidence which is to be taken in conjunction with the various reports prepared by the EU Fundamental Rights Agency, reports prepared by the European Network of Legal Experts in the Non-Discrimination Field , the reports by the Council of Europe’s Commissioner for Human Rights , and the expected results from the EU Fundamental Rights Agency’s LGBT survey which will be launched in May of this year.

In the framework of the 2012 European Year for Active Ageing and Solidarity between Generations, AGE Platform Europe (AGE) and ILGA-Europe have decided to focus on the situation of older LGBTI people in Europe. In a joint policy paper, the two NGOs suggest best practices and policy recommendations to help older LGBTI people going through those life stage transitions.

The policy paper ‘Equality for older lesbian, gay, bisexual, trans and intersex people in Europe’ is the first of its kind at European level. AGE and ILGA-Europe are calling on actions both at European and national levels; the two NGOs call for a comprehensive and coherent approach to tackle multiple discrimination of older LGBTI people, and for development of adequate policy responses to support ageing LGBTI communities on a national and as well as on an European level.

In the policy paper AGE and ILGA-Europe have identified four main challenges faced by older LGBTI people:

1. The lack of recognition of same-sex couples has an impact on their access to social protection and on their financial security. This becomes particularly worrying when people get older and cannot ensure that their partner will have access to their pensions and assets.
2. Older LGBTI people may have specific health needs and may face ongoing stigmatisation in the field of healthcare.
3. Some elderly LGBTI people experience social exclusion and invisibility and cannot rely on the same family support as other older people.
4. This raises specific challenges related to long-term care, inclusive of older LGBTI people needs.

The European Commission should take into consideration the difficulties that are currently experienced by same-sex partners, trans and intersex people, and their children when implementing the current EU legislation and when formulating new policy initiatives to amend it or to provide Member States with interpretation guidelines.

The European Union should adopt interpretative guidelines on a human rights sensitive application of Directive 2003/86/EC, with a focus on non-discrimination. These guidelines should in particular assist Member States in the implementation of European legislation in the case of LGBTI families. They should take into account the structures of inequality on the grounds of sex, sexual orientation, gender identity and gender expression.

In addition:

• ILGA-Europe believes that it should be made clear that the reunification of married couples applies equally to same-sex and opposite-sex married couples
• ILGA-Europe believes that the directive should be amended in order to make sure that unmarried or registered partners are clearly included in the scope of the family covers covered by the directive (to date, this is only an optional clause). Member States should be offered guidance on how to define transparent and non-discriminatory criteria to determine what evidence is required to demonstrate the existence of such family relationships, including when it comes to trans people’s families
• Provisions covering the children and adopted children of unmarried partners should also stop being optional
• The directive should also address the case of family reunification of all beneficiaries of international protection (refugees and subsidiary protection). Sensitive guidance should be provided to take into consideration the families of LGBTI people who were granted protection because of persecution based on sexual orientation and gender identity
• Finally, ILGA-Europe considers that no reopening of the Directive should happen if that would lead to greater restrictions and harsher conditions to the detriment of migrants seeking reunification

ILGA-Europe and Transgender Europe jointly submitted input for a public consultation on measures for improving the recognition of prescriptions issued in another European Union Member State.

Key concerns highlighted in our submission:

• We are worried by the fact that in some cases, trans persons were denied products on the basis that dispensers disapprove of their gender reassignment.
• It seems that some medicines, on which trans persons very much depend, are available only in some member states and not in other.
• We consider that the identification of the patient based solely on the first name or on the gender can be problematic in the case of patients whose appearance does not match the first name and the gender mentioned on the prescription.
• It seems that there is an extensive lack of knowledge within the trans community about the possibility of getting medicines prescribed in another member state.

Recommendations for the integration of a gender perspective into the work of the European Asylum Support Office

The current discriminatory and incoherent provision of protection across the EU and the lack of expertise on gender/sexual orientation/gender identity-related persecutions are putting individuals at risk.

If the EASO is to ensure that the EU fulfils its obligations to protecting all those at risk whether man, woman, gay, lesbian or transgender, a set of recommendations (attached), produced by a coalition formed by ILGA-Europe, the European Women’s Lobby and Amnesty International’s End Female Genital Mutilation European Campaign, must be translated into practice by the new agency.

The European Asylum Support Office will provide asylum expertise, conduct comparative research, collate country of origin information, gather existing practices, and provide training and guidelines for national asylum authorities.

The coalition calls on the EASO to work against discrimination in asylum procedures and to ensure that gender, sexual orientation and gender identity perspectives are embedded equally in the structure and the work of the EASO.

Current asylum procedures in the EU are generally lacking gender, sexual orientation and gender identity awareness: training on questioning techniques is inadequate, and the knowledge and understanding of persecutions on the basis of gender, sexual orientation and gender identity remains low. For instance, a Christian woman was not granted asylum by the Belgian asylum system because they mistakenly believe Christian girls and women not to be at risk of female genital mutilation (FGM).

Background information:

Gender based violence and persecution is a global problem of pandemic proportions:

• more death and disability among women aged 15–44 are caused by acts of violence than by cancer, malaria, traffic accidents and war combined (UN)
• 3 million girls worldwide are subjected to genital mutilation each year (WHO)
• 76 countries still criminalise same-sex sexual activities between consenting adults
• 539 trans people were murdered worldwide from January 2008 to the end of 2010 (Transgender Europe)

The EASO was established by the European Union in response to asylum challenges and is part of the implementation of the 2008 European Pact on Immigration and Asylum which called for the completion of a Common European Asylum System by 2012 “to offer a higher degree of protection”.

On the grounds of previous submissions and policy documents, ILGA-Europe believes that the Victims’ Rights package to be presented in May by the European Commission should include measures aiming at:

Reinforcing the existing EU legislation on the rights of victims by providing a clear definition of the concept of “vulnerable victim” that would include victims of bias crimes, on the basis of European and international instruments adopted by all Member States at the OSCE and at the Council of Europe;
Developing EU policies in order to define high European standards in the areas of data collection, support to victims and training of law enforcement officers, prosecutors and judges. These policies should take into account the role of civil society victim support organisations and include a strong focus on victims of bias violence and hatred.

Joint contribution by ILGA-Europe, Transgender Europe and OII-Germany towards the European Commission’s assessment of the state of affairs vis-à-vis gender discrimination in education and the provision of financial services

ILGA-Europe’s policy paper on how various aspects of EU law are impacting upon national rules relating to ‘personal status’ in its broader sense.

This Policy paper is available in 5 languages.

Issues such as marriage, partnership and parenting have been traditionally treated as falling within national legal competence and hence outside the powers of the European Union. However, this situation is now rapidly changing. The boundaries between national and EU competences have gradually blurred over time.

The Union is now committed to promoting social inclusion through policies in a wide range of fields such as employment, education, healthcare and housing. Moreover, the creation of the “Area of Freedom, Security and Justice” has demanded much greater involvement of the Union in the coordination of civil law systems, including family law. In this policy paper, we examine how various aspects of EU law are impacting upon national rules relating to “personal status” in its broadest sense.

Combatting discrimination outside employment. 

This ILGA-Europe’s policy paper argues that there is a clear need for the European Union to move quickly to complement the measures introduced in the area of employment with further legislation designed to prohibit discrimination in other spheres of life such as healthcare, education and housing.