Finland violated rights of a lesbian mothers’ child by rejecting his asylum application, UN finds

UN Palais Wilson

The UN Committee on the Rights of the Child found that Finland failed to consider the best interests of the child of a lesbian couple when assessing his asylum request. Now the country is under an obligation to provide reparation.

The UN Committee on the Rights of the Child found that Finland failed to consider the best interests of the child of a lesbian couple when rejecting his asylum request, and to protect him against a real risk of irreparable harm when the family had no other choice but to return to Russia.

“This is a ground-breaking decision: it is the first asylum-related case from the UN system involving a child who is facing specific risks on the grounds of his mother’s sexual orientation, and of the family they form together”, said Kseniya Kirichenko, Programme Coordinator at ILGA World. “This is also the first time that the UN Committee on the Rights of the Child made a decision on sexual orientation issues, and the first case on children in same-sex families in Treaty Bodies’ practice altogether”.

The Committee’s decision was informed by a third-party intervention submitted jointly by ILGA World, ILGA-Europe, the International Commission of Jurists (ICJ), Child Rights International Network (CRIN) and Network of European LGBTIQ* Families Associations (NELFA).

The Committee’s decision concerned an application filed on behalf of A. B., now 11, who had fled Russia together with his mothers after the family faced harassment and threats, and he had started to suffer from bullying and isolation at school.  These were the years when regions across Russia had started to introduce so-called “anti-propaganda laws”, which have contributed to an increasingly hostile environment against people of diverse sexual orientations, gender identities and expressions. Legislation that bars “promoting non-traditional sexual relationships” was eventually adopted in 2013 at the national level.

Fearing for their safety, the family fled to Finland, where the child started to attend school, made friends, and no longer had to live in fear of calling both of his parents “mother” and of talking to anyone about his family.  However, Finland rejected their application for asylum: authorities recognised the past experiences of threats, bullying and discrimination; nonetheless, they concluded that these could not be considered as amounting to persecution.

The family was left with no other choice but to return to Russia. However, the complaint against Finland reached the United Nations, where in February 2021 the Committee on the Rights of the Child concluded that Finland “failed to adequately take the best interests of the child as a primary consideration when assessing the author’s asylum request based on his mothers’ sexual orientation, and to protect him against a real risk of irreparable harm in case of return to the Russian Federation”.

“This is an important decision, setting out necessary standards for the protection of children in LGBTI families who are at heightened risk of discrimination, especially in countries like Russia, where LGBTI people face stigmatisation and hostilities in their everyday lives”, said Arpi Avetisyan, Head of Litigation at ILGA–Europe. “States must always ensure that the best interests of the child are effectively and systematically taken into account in the context of asylum proceedings, and that they are not discriminated based on their parents’ sexual orientation.”    

While finding Finland in violation of articles 3, 19, and 22 of the Convention on the Rights of the Child, the UN committee pointed out that the state “is under an obligation to provide an effective reparation to the author, including adequate compensation.”

The decision has the potential to bring about change. “In the past, we have seen that international decisions on lesbian, gay and bisexual asylum seekers actually led to giving the applicants residency in the respondent States”, concluded Kirichenko. “We hope that Finland will also ensure that this family will be able to come back and to finally have a happy and safe life”.

Notes for editors:

UN Treaty Bodies (Committees):  committees of independent experts appointed to review the implementation by State parties of an international human rights treaty.

Committee on the Rights of the Child:  part of the UN Treaty Bodies, it is a United Nations body of 18 Independent experts that monitors the implementation of the Convention on the Rights of the Child by its State parties.

More information about Treaty Bodies is available in ILGA World’s annual Treaty Bodies reports and strategic litigation toolkit. Recordings of ILGA World’s webinars on United Nations advocacy, including on Treaty Bodies, are available here.

Additional resources:

Press releases on the case

Media contacts:

ILGA-Europe’s 10th Annual Review shows that as a result of the unprecedented events of 2020, LGBTI people and communities in Europe have been pushed to the brink

After an extraordinary year, Europe has been awoken to the acute fragility of the human rights situation for LGBTI people across the region, says ILGA-Europe.

Reporting from every country in the ILGA-Europe ‘Annual Review of the Human Rights Situation of LGBTI People in Europe and Central Asia 2021’ is a glaring clarification that progress which has been taken for granted is not only increasingly fragile, but particularly vulnerable to exploitation by anti-human rights forces.

According to Evelyne Paradis, Executive Director of ILGA-Europe: “Our Annual Review shows that the COVID-19 pandemic has highlighted all of the gaps in terms of lived realities of LGBTI people across Europe and Central Asia. In reports from country after country, we see a stark rise in abuse and hate speech against LGBTI people; many of whom became vulnerable to homelessness have been forced to move back into hostile family and community situations. LGBTI organisations have had to skew their work towards provision of basic necessities like food and shelter as many governments left LGBTI people out of their relief packages; and there has been a resurgence of authorities and officials using LGBT people as scapegoats while authoritarian regimes are empowered to isolate and legislate without due process.”

Overall there has been a crackdown on democracy and civil society, and not just in Poland and Hungary, which made all the headlines in 2020. Contributors to the Review in several countries have expressed fears of their governments following in the footsteps of Poland and Hungary, while attacks on freedom of assembly continue to be a growing trend with brutal crackdowns and attacks, and court cases against people who took part in Pride events in 2019. Concurrently the Review shows a substantial rise in hate speech across the regions, both from official sources, in the media and online. The trend of politicians verbally attacking LGBTI people has grown considerably and spread widely, while many religious leaders have directly blamed LGBTI people for COVID-19.

Says Katrin Hugendubel, Advocacy Director at ILGA-Europe: “In this worrying context, it was important in 2020 to see the European Commission resetting its commitment to protect and advance LGBTI rights with the EU LGBTIQ Strategy 2020-2025, and the Commission President finally finding very clear words condemning persistent discrimination and ongoing attacks on LGBTI people. These are steps in the right direction, but they need to be followed by similar actions at national level, and the Strategy needs to be meaningfully implemented.”

The ILGA-Europe Annual Review 2021 shows a significant growth of opposition towards trans rights across Europe, which is beginning to have a wide and negative impact on legal gender recognition. There is legal regression and stagnation in 19 countries, many of which have seen opposition forces become louder, saying that advancing the protection against discrimination and self-determination for trans people would harm women’s rights or ‘the protection of minors’.

For much of this annual report’s ten years, reporting on family rights has generally focused on same-sex partnership registration or marriage rights and in this context there continues to be stagnation in several countries. However, markedly in 2020, Montenegro became the first Western Balkans country outside the EU to introduce civil partnership; while in Serbia the government promised steps toward introducing civil partnership in 2021. We also see a growing number of countries moving on parenthood rights and paying more attention to the protection of children’s rights.

Evelyne Paradis concludes: “With this review, our message to governments and institutions is that we have to acknowledge how fragile the situation is for LGBTI people across Europe and Central Asia. It is essential to take bold and decisive action at multiple levels, so that the human rights of LGBTI people in all their diversity will continue to advance across the region, and the promise of equality will be experienced in their lived realities.”

Check out the Annual Review 2021 on our website. 

Navigate the Annual Review chapters by country, institution or theme in our Rainbow Europe module!

For further comment, please contact ILGA-Europe’s Media Office, Ana Muñoz Padrós at ana@ilga-europe.org or +32 493356055.

Turkish government steps up its attacks on LGBTI+ citizens

Turkey's flag

Europe’s leading LGBTI+ rights organisation, ILGA-Europe are alarmed to observe that in the past week the Turkish government has stepped up its systematic attacks on and defamation of LGBTI+ people and calls on President Erdo?an to guarantee the fundamental rights of all minorities without discrimination, as enshrined in the country’s Constitution.

Over the past week in Turkey, both government and government-supported media have called LGBTI+ people a “disgrace”, “dirty” and “perverts”, which has prompted a wave of hate-speech on social media.

President Recep Tayyip Erdo?an held video conferences on Monday 1 February and Wednesday 3 February denouncing LGBT people and praising his supporters saying: “We will carry our young people to the future, not as the LGBT youth, but as the youth that existed in our nation’s glorious past.”

On February 2, Justice Minister and the Interior Minister Süleyman Soylu called LGBT people “perverts” on Twitter. The social media platform has since flagged the tweet as violating its rules against “hateful conduct”.

This new campaign takes place in the context of rising hateful rhetoric against the LGBTI+ community by representatives of high-level religious and political institutions in Turkey, as well as actions and legislation attacking human rights defenders and civil society organisations.

Crackdown on freedom

The step-up in governmental anti-LGBTI+ rhetoric comes as academic staff and students at Bo?aziçi University of Istanbul have been protesting the appointment of the University’s new Rector, Melih Bulu, by President Erdo?an on 1 January 2021. Melih Bulu’s appointment is being protested because Bulu is the first appointed rector from outside the University, a move that further extends the government’s crackdown on academic freedom in Turkey.

The new Rector is a long-standing ally of President Erdo?an and his ruling party, and has held different positions in the party for years. He has supported anti-LGBTI+ statements from the Erdo?an government. Professors at Bo?aziçi University and students alike are concerned about the future of academic freedom, freedom of expression, freedom of assembly and freedom of association at the University.

Using COVID-19 to slander LGBTI people

In addition to the systematic attacks and bans that Turkey’s LGBTI+ movement has experienced at the hands of Turkish authorities since 2015, in 2020 the government seized upon the COVID-19 crisis as an opportunity to slander LGBTI+ people. In April last year, the President of the Directorate of Religious Affairs, Ali Erba? targeted LGBTI+ people and people living with HIV, equating homosexuality with a disease, stating that “hundreds of thousands of people a year are exposed to the HIV virus caused by this great haram, which passes as adultery in the Islamic Literature,” and blaming lesbian and gay people for COVID-19. He was quickly supported by leading governmental figures including the Minister of Family, Labour and Social Services, and President Erdo?an himself.

According to Evelyne Paradis, Executive Director of ILGA-Europe: “The Turkish government has an obligation to protect everyone from hate crime and discrimination, and should not be part of any statements that could encourage hate crimes and target any minority group, including LGBTI+ people.

“We recall that as a founding member of the United Nations, Turkey pledged to protect inherent dignity and the equal and inalienable rights of all members of the human family. In addition, as a Member State of the Council of Europe and having ratified the European Convention of Human Rights, Turkey must uphold European human rights law, which prohibits a discriminatory application of human rights.

“We call on Turkey to respect, guarantee, protect and fulfil the fundamental rights of the LGBTI+ community without discrimination as enshrined in its Constitution and equality article therein, and ratified by human rights treaty bodies,” Paradis concluded.

Further information:

  • Find out more about LGBTI rights in Turkey in our Rainbow Map.

For comment, contact Ana Muñoz, ILGA-Europe: ana@ilga-europe.org / +32 493 35 60 55

European Court must rule in favour of a child at risk of statelessness and her family’s freedom of movement in the EU, say leading LGBTI rights organisations

View of the Court of Justice of the European Union

Authorities in Bulgaria have not recognised the valid EU birth certificate of the child of a same-sex couple. On February 9, the Court of Justice of the European Union must clarify that if you are a parent in one EU country, you are a parent in every EU country.

On Tuesday, February 9, the Court of Justice of the European Union (CJEU) will hear the case of a same-sex couple who were refused a birth certificate in Bulgaria for their newborn daughter. The authorities claimed that a same-sex couple cannot be registered as parents on the birth certificate. ILGA-Europe have been supporting Bulgarian LGBTI rights organisation, Deytsvie in bringing the case forward and is, through their campaign #parentswithoutborders, raising awareness of the lack of protection of same-sex parents and their children within the EU.

Bulgarian born Kalina Ivanova* and Gibraltar-born Jane Jones* are the mothers of Sara, who was born in Spain in 2019. Under current Spanish law, the child could not acquire Spanish citizenship because neither Kalina or Jane is a Spanish citizen. The child was also denied British citizenship because Jane was born in Gibraltar of British descent, and under the British Nationality Act (1981), cannot transfer citizenship to her daughter.

Therefore, Kalina requested Bulgarian citizenship for their daughter. Bulgarian authorities rejected the application, arguing that a baby cannot have two mothers, and refused to issue a birth certificate in which the parents are two persons of the same sex.  

Sara has been deprived of Bulgarian, and therefore European citizenship, and is at risk of statelessness. At the moment, the child has no personal documents and cannot leave Spain, the country of the family’s habitual residence. The lack of documents will restrict Sara’s access to education, healthcare, and social security.

According to the case taken to the CJEU, the Bulgarian authorities are violating the rights of a European citizen on the grounds of sexual orientation, namely to free movement, and to private and family life. This constitutes a breach of the fundamental principles of the EU.

In Bulgaria, same-sex marriages and same-sex registered partnerships are not recognised.

According to Denitsa Lyubenova, attorney-at-law and co-founder of Deytsvie: “Countries in Central and Eastern Europe are derogating from basic human rights guaranteed by the European Convention on Human Rights and the Charter of the Fundamental Rights of the EU. This weakens the EU position as a guardian of human rights. With this case we have the chance to realign the practice in EU countries with the principles set out in the EU Treaties and to protect the rights of LGBTI families and their children moving across Europe. and the Court needs to reconfirm that Rainbow families are as valid as all others.”

Arpi Avestisyan, Head of Litigations at ILGA-Europe added: “In her State of the Union 2020 address, President Ursula von der Leyen said: ‘If you are parent in one country, you are parent in every country’. However, thousands of same-sex parented families in the EU currently live at risk of not having the parental relations recognised and face legal turmoil due to differences in member states’ national systems.”

Avestisyan continued: “Parents cease to exist when moving from one EU member state to another, where birth certificates from another member state are not recognised. These situations create severe obstacles for children in exercising the rights to which they are entitled under European and international law.

“Through this case, the CJEU has the opportunity to clarify that parentage established in one member state must be recognised across the EU, and all EU citizens and their families equally enjoy freedom of movement. As already confirmed in Romanian Coman case, arguments on “constitutional identity”, namely that Bulgaria does not recognise rainbow families, cannot justify a violation of EU law.” 

*Names have been changed.

LGBTI rights groups welcome judgement finding Romania in violation of the European Convention on Human Rights because of a lack of proper legal framework for legal gender recognition

European Court of Human Rights

Romania has been found to be in violation of the European Convention on Human Rights because its authorities present transgender people with an impossible dilemma. 

LGBTI rights organisations, ILGA-Europe and Transgender Europe (TGEU) have welcomed today’s judgment in the cases of X and Y v Romania, the European Court of Human Rights (ECtHR) found a violation of Article 8 of the European Convention, in that Romania lacked a clear and foreseeable legal framework for the legal gender recognition. The Court’s judgment was informed by a third-party intervention submitted jointly by ILGA-Europe and TGEU.

The applicants in the case, Mr. X and Mr. Y, spent years in the national courts requesting the authorisation for gender reassignment from female to male and an administrative change of forename and personal digital identity code, and other necessary changes in the civil-status register indicating the applicant’s new forename and male gender. The relevant administrative corrections were refused on the grounds that persons making such requests had to provide proof that they had undergone gender reassignment surgery.

While Applicant X was able to obtain male forenames by deed poll in the UK in 2015, he continued suffering constant inconvenience owing to the mismatch between the female identifiers on the papers issued by the Romanian authorities and the male identifiers on the various documents he had obtained in the United Kingdom. While waiting for a decision from the European Court, Applicant Y felt compelled to undergo various surgeries in order to be able to make the necessary alterations to his civil-status records and have a new birth certificate issued.

The ECtHR observed that the lack of procedure and unreasonable requirements by the national courts had presented both applicants with an impossible dilemma: either they were forced to undergo the surgery, contrary to their right to respect for their physical integrity, or they had to forego recognition of their gender identity, which also came within the scope of respect for private life.

ECtHR finding

The Court found a violation of ECHR Article 8 in that Romania lacked a clear and foreseeable legal framework for legal gender recognition. The Court recalled recommendations by the Committee of Ministers and the Parliamentary Assembly of the Council of Europe, as well as the United Nations High Commissioner for Human Rights and the UN Independent Expert on SOGI calling on States to adopt procedures allowing persons to have their name and gender changed on official documents in a quick, transparent and accessible manner.

The Court also found that the State failed to provide fair balance between the general interest and the individual interests of the persons concerned. 

Unfortunately, the Court did not address Article 14 claims on non-discrimination based on gender identity that affects the applicants, and thus did not clearly condemn any surgery requirements in legal gender recognition procedures as discriminatory.

Romania’s ACCEPT association estimates that around 120,000 transgender people live in the country, while less than 50 have managed to change their civil status documents in the last 20 years.

According Patrick Br?ila, co-president of ACCEPT: “Gender identity is an inner feeling and a deeply private one, which must be ascertained by the civil status authority on the basis of the trans person’s statement, without being required to provide medical evidence, the testimonies of others, or worse, to be forced to undergo surgery on the genitals that the person in question either does not want or that are impossible to have in our country, due to the absence of specialists in the field. These interventions cost over €50,000 in foreign countries. We therefore request the Government of Romania, which has the obligation to implement this decision, to develop in collaboration with the ACCEPT Association and the transgender community in Romania, a simplified administrative procedure that allows the modification of identity documents of trans persons, respecting their dignity and personal autonomy and their right to self-determination.”

Welcoming the judgement, Antonella Lerca, member of the TGEU Board said: “Transgender people in Romania are very excited about the news from the European Court of Human Rights. We have been waiting for a long time to hear this, particularly those at the margins. Trans sex workers, poor and homeless trans people, have been rejected by society and been trampled on by the State. We call upon the Romanian state to respect its obligations and immediately introduce a legal gender recognition procedure that is quick, transparent, and accessible and based on self-determination.”

Head of Litigation at ILGA-Europe, Arpi Avetisyan added: “We welcome this judgment as it reiterates the need for establishment of a clear legal framework for the legal gender recognition without any requirements violating the right to privacy and bodily integrity in Council of Europe Member States. Putting trans people in a dilemma of choosing between having their physical integrity respected or having their gender identity recognised is unacceptable. The Court took note of declining number of Member States requiring gender reassignment surgery as a prerequisite for legal gender recognition. It is time that countries across Europe set in place legal gender recognition procedures in line with international human rights standards.”

Further information:

For media requests, please contact Ana Muñoz: ana@ilga-europe.org, 

The European Court of Human Rights finds Croatian response to violent homophobic attack fosters impunity for hate crime

Croatia's flag

A judgement issued today by the European Court of Human Rights finds that the response of Croatian authorities to a hate crime against a lesbian woman was “particularly destructive of fundamental human rights”.  

In today’s judgment in Sabalic v Croatia, the European Court of Human Rights (ECtHR) found a violation of Article 3 (prohibition of inhuman or degrading treatment) in conjunction with Article 14 (prohibition of discrimination) of the European Convention on the account of Croatian authorities’ failure to respond effectively to the applicant’s allegations of the violent homophobic attack against her.  

Background

The case concerned Ms Sabali?’s allegation that the Croatian authorities’ response to a violent homophobic attack against her had been inadequate. She had been attacked in a nightclub when she had refused a man’s advances, disclosing to him that she was a lesbian. The man, known as M.M, severely beat and kicked her, while shouting ‘All of you should be killed!’ and threatening to rape her. Ms Sabali? sustained multiple injuries all over her body for which she was treated in hospital.

M.M. was convicted in minor-offence proceedings of breach of public peace and order and given a fine of 300 Croatian kunas (approximately 40 euro (EUR)). Ms Sabali?, who had not been informed of those proceedings, lodged a criminal complaint against M.M. before the State Attorney’s Office, alleging that she had been the victim of a violent hate crime and discrimination.

Although Croatia has hate crime legislation and offences based on sexual orientation are to be charged as an aggravated crime, it is generally disregarded and violent acts are considered as minor offences, as in the applicant’s case. 

ECtHR finding

The European Court found that “such a response of the domestic authorities through the minor offences proceedings is not capable of demonstrating the State’s Convention commitment to ensuring that homophobic ill-treatment does not remain ignored by the relevant authorities and to providing effective protection against acts of ill-treatment motivated by the applicant’s sexual orientation”. 

It stressed that “the sole recourse to the minor offences proceedings against [the aggressor] could be considered rather as a response that fosters a sense of impunity for the acts of violent hate crime.”  Such conduct by Croatian authorities was found to be “particularly destructive of fundamental human rights”. 

The Court’s judgment was informed by a third party intervention submitted jointly by the AIRE Centre (Advice on individual rights in Europe), ILGA-Europe, and the International Commission of Jurists (ICJ).

Marko Jurcic, an activist at Zagreb Pride who provided victim support for the case, said: “The European Court of Human Rights has proven something we have been saying for decades: the Croatian police are failing to protect victims of homophobic and transphobic violence. Unfortunately, the practice of treating homophobic and transphobic hate crimes as misdemeanors is continuing in Croatia. In the last couple of years, three hate-crime complaints by Zagreb Pride have also been rejected by the public prosecutor because of the police misconduct.” 

According to ILGA-Europe’s Head of Litigation, Arpi Avetisyan: “Today’s judgment sends a strong signal to the Council of Europe member states to ensure effective investigation, prosecution and punishment of homophobic and transphobic violent crimes. Downplaying such crimes and letting the aggressors get away without due punishment serves as encouragement to homophobia and transphobia.”

Matthew Evans, Director of AIRE Centre on today’s judgment: “Police often fail to investigate the homophobic motive behind violence despite being a key element of the criminal porceedings. In Sabalic v Croatia, the ECHR has found that such an ‘ineffective’ response can amount to inhuman and degrading treatment within the meaning of Article 3 of the European Convention”. 

Further information

  • Read the news about the judgement, written by Blackstone Chambers, twho acted pro bono for the AIRE Centre, ILGA-Europe and the ICJ

Poland: All charges against LGBTI rights defenders charged for peaceful activism must be dropped, say Human Rights NGOs

A portrait of the Virgin Mary with a rainbow halo

The trial of three women accused of “offending religious beliefs” will take place, tomorrow on January 13 in Plock, Poland. The activists face up to two years in prison for disseminating posters of the Virgin Mary with a rainbow halo symbolic of the LGBTI flag. Six international human rights NGOs are calling for all charges to be dropped, and for the Polish authorities to amend their legislation and bring it in line with international and regional human rights standards. 

After a first postponement in November, the trial against El?bieta, Anna and Joanna (whose surnames are not being used to protect their privacy) will take place this Wednesday, January 13. Under article 196 of the Polish Criminal Code (C.C.), the women are accused of having ‘publicly insulted an object of religious worship in the form of this image which offended the religious feelings of others’ in relation to their display of posters of the Virgin Mary with a rainbow halo on 29 April 2019. If found guilty, the activists face up to two years in prison.

The authorities arrested and detained El?bieta in 2019 after she took a trip abroad with Amnesty International. The authorities opened an initial investigation against her in May 2019, and in July 2020 they officially charged the three activists.

Six non-governmental human rights organisations: ILGA-Europe, Amnesty International, Campaign Against Homophobia, Freemuse, Front Line Defenders, and Human Rights Watch call on the Polish Prosecutor General to drop the charges and ensure that the three women are allowed to carry out their human rights work without harassment and reprisals by the authorities.

RESTRICTING THE RIGHT TO FREEDOM OF EXPRESSION

Creating or distributing posters such as the ones depicting the Virgin Mary with a rainbow halo should not be a criminal offence and is protected under the right to freedom of expression.

In its current formulation, article 196 of the Polish C.C. imposes undue restrictions on the right to freedom of expression by providing overly broad discretion to the authorities to prosecute and criminalise individuals for expression that must be protected. This is incompatible with Poland’s international and regional human rights obligations. 

Poland is bound by the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights as well as the Charter of Fundamental Rights of the EU to respect, protect and fulfill the right to freedom of expression. 

Furthermore, in 2013, the Special Rapporteur in the field of cultural rights noted that “Restrictions on artistic freedoms based on insulting religious feelings… are incompatible with [ICCPR]”. In 2019, this was again highlighted by the Special Rapporteur on freedom of opinion and expression, who stressed that criminalising expression that insults religious feeling limits “debate over religious ideas and… such laws [enable] governments to show preference for the ideas of one religion over those of other religions, beliefs or non-belief systems”.

Freemuse is particularly concerned about the policing of artistic and creative content by the authorities in Poland and regard this court case as an unlawful attack on freedom of artistic expression.

Amnesty International has previously called on the Polish authorities to repeal or amend legal provisions, such as article 196 of the Criminal Code, which criminalise statements protected by the right to freedom of expression. Many other national and international human rights organisations have criticised provisions of the Polish Criminal Code, including article 196, as problematic because they constitute restrictions on the right to freedom of expression not permissible under international human rights law.

According to international standards, restrictions on the right to freedom of expression must be provided by law and formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly (Human Rights Committee, General Comment 34 on Freedom of Expression, para. 25). The current formulation of article 196 is not sufficiently precise, leaves space for arbitrary interpretation and allows authorities to arrest, detain, and prosecute people simply for expressing views that may be perceived by others as offensive. 

The six organisations state that everyone has a right to express themselves safely and without fear of reprisals, and that the right to freedom of expression is protected, even if some people might find the expression to be deeply offensive (Human Rights Committee, General Comment 34 on Freedom of Expression, para. 11). In the words of the European Court of Human Rights the right to freedom of expression “is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population”.

According to ILGA-Europe’s Advoacy Director, Katrin Hugendubel: “The case against El?bieta, Anna and Joanna is an example of the repeated harassment activists and human rights defenders face simply for carrying out peaceful activism in Poland, which Polish and international human rights organisations have documented and denounced at length in the last number of years. 

“El?bieta, Anna and Joanna stood against hate and discrimination and for years they have been fighting for a just and equal Poland. They deserve to be praised and not taken to court for their activism.”

BACKGROUND

To date, around 140,000 people have joined an international campaign urging the Prosecutor General to drop the unfounded charges against the three women human rights defenders. The campaign is available at https://www.amnesty.org/en/get-involved/take-action/poland-activist-elzbieta-podlesna/.   

Amnesty International, Campaign Against Homophobia, Freemuse, Front Line Defenders, Human Rights Watch and ILGA-Europe, remain committed to supporting the three women human rights defenders and campaigning for justice. 

El?bieta is one of the 14 women human rights defenders who were beaten and targeted for standing up to hate in Poland during the Independence March in 2018. See their story at https://www.amnesty.org/en/latest/campaigns/2019/04/14-women-blog/. 

At the time of her arrest in May 2019, El?bieta had just returned from a trip to Belgium and the Netherlands with Amnesty International, where she participated in several events and advocacy meetings with activists and supporters to raise awareness about the situations of peaceful protesters and the crackdown they are facing in Poland. 

To see a timeline on anti-LGBTI hate in Poland, click here.* Article 196 of the Criminal Code makes anyone found guilty of intentionally offending religious feelings through public calumny of an object or place of worship liable to a fine, a restriction of liberty, or to imprisonment for a maximum of two years.

Turkey: 19 LGBTI Pride marchers must be acquitted in forthcoming trial

Protests after METU Pride 2019.

Turkey must uphold its domestic and international commitments, and dismiss all charges against 19 human rights defenders, prosecuted for their participation in a peaceful Pride march at Middle East Technical University (METU) in Ankara in May 2019, says Europe’s largest LGBTI rights umbrella organisation, ILGA-Europe.

On December 10, International Human Rights Day, 18 students and one academic, who were detained, charged and prosecuted for their participation in a peaceful LGBTI Pride march at Turkey’s Middle East Technical University (METU), will come to trial. Although they were exercising their right to freedom of assembly, the 19 human rights defenders face charges of “participating in an unlawful assembly” and “failing to disperse despite being warned”. If found guilty, they could face up to three years in prison.

METU Pride had peacefully taken place in the city of Ankara every year since 2011. However, on 10 May 2019, a few days before the annual event, the administration of METU said it could not go ahead. Ankara had banned all LGBTI+ activities under a state of emergency in 2017, but this ban had been lifted earlier in 2019. There was no legal basis for METU’s administration to ban the march, so activists and students got together and exercised their legal right to freedom of assembly, celebrating LGBTI Pride. The administration then called the police, who used excessive force to disperse the march. Tear gas and plastic bullets were fired at the crowd, students were dragged across the ground, pushed up against trees and sustained head injuries.

22 METU Pride participants were detained, 19 of whom were subsequently charged. The first hearing of the court case took place in November 2019, but a judgement has been postponed several times, due to COVID-19 pandemic measures.

Says Turkish NGO, ÜniKuir: “We do not accept the prohibition, marginalisation or prosecution of the METU Pride march or any Pride march. We have to speak out against this injustice and we ask you to speak out with us.” 

LGBTI rights have been systematically attacked in Turkey and any outcome other than the acquittal of the METU Pride human rights defenders goes against Turkey’s own legislation and the European Convention of Human Rights, of which Turkey is signatory.

According to activists from METU LGBTI+ Solidarity: “Turkey is ignoring the international treaties that they are a party to and violate our basic human rights, on Human Rights Day. We are standing with all of our colours against this injustice.”

Katrin Hugendubel, Advocacy Director for ILGA-Europe says: “It is incredibly important that Turkey upholds its international and domestic human rights commitments by acquitting the METU Pride LGBTI activists on 10 December. Anything else would be a slap in the face for human rights and the decision of the Ankara Administrative Court to lift the ban. All Turkish citizens should enjoy the right to freedom of assembly, and this judgement will set a precedent for forthcoming similar trials in Turkey.”

Further information:

  • Read our joint statement with 8 international human rights organisations here, and download it in English and Turkish.
  • Timeline of the story so far.

For further comment, contact: Ana Muñoz Padrós, ILGA-Europe: ana@ilga-europe.org, +32 493 35 60 55

EU shifts gear with adoption of LGBTIQ Equality Strategy

Two people wear EU and rainbow flags on a crosswalk painted in rainbow colors

The publication today of a five-year EU LGBTIQ Equality Strategy marks a qualitative shift from the European Commission towards playing its full role to defend and protect LGBTI rights in times of real backlash, says Europe’s largest LGBTI umbrella organisation, ILGA-Europe.

Today, the European Commission (EC) Vice-President Vera Jourova and Equality Commissioner, Helena Dalli published the Commission’s ‘Union of Equality: LGBTIQ Equality Strategy 2020-2025’, following President Ursula von der Leyen’s strong commitment to LGBTI rights in her State of the Union speech in September.

According to the Strategy, the European Union “has to be at the forefront of efforts to better protect LGBTIQ people’s rights,” at a time when “discrimination on the grounds of sexual orientation, gender identity/expression and sex characteristics is actually increasing in the EU” and there is a “worrying trend in parts of the EU of more frequent anti-LGBTIQ incidents such as attacks on LGBTIQ public events including Pride marches, so-called declarations of LGBTIQ ideology free zones… and the rise of the anti-gender (and anti-LGBTIQ) movement.”

According to ILGA-Europe, an umbrella organisation for over 600 LGBTI organisations across the region, the Strategy marks the beginning of a new approach in the European Commission to LGBTI rights and equality.

Welcoming the Strategy, Katrin Hugendubel, ILGA-Europe’s Advocacy Director, said: “For the first time, the strategy sets out a clear work programme for a wide range of services in the European Commission in relation to LGBTI rights. It is committed to being true to the values set out in the EU treaties, both in areas where the EC has competencies, like for example proposing legislation to finally ensure that parents can move freely across member states without losing their parental status, to taking a leadership role in working with member states in areas where change needs to happen on national level, such as banning so-called “conversion therapies” and ensuring legal gender recognition procedures based on self determination. With its understanding that LGBTI rights are not niche issues but touch on all areas of life, the strategy clearly acknowledges the structural discrimination and marginalisation of LGBTI people.”

According to Evelyne Paradis, Executive Director at ILGA-Europe: “At the very core of this strategy is the understanding that if you are going to bring about profound change, it needs to be everyone’s business. Working alongside civil society, every political actor and department has their fundamental role to play. In order for this strategy to reverse backtracking and make the real progress it sets out to do, everyone must come on board with the same commitment to exercising institutional powers, across the board, in its implementation.”

Katrin Hugendubel continued: “With this strategy, the EC is finally using the full toolbox available, within its own competences and in working with member states, in assuming leadership in defending and advancing the rights of LGBTI people in Europe and beyond. The EC can play a significant role in making sure we continue to move closer to achieving equality for LGBTI people, especially in more challenging times. With this strategy, the Commission is equipping itself to do just that. We are looking forward to working with everyone at the Commission and other EU institutions to make sure the ambitions in the strategy translate into real change for LGBTI people across the EU and beyond.”

For further comment, please contact ILGA-Europe’s Media Office, Ana Muñoz Padrós at ana@ilga-europe.org or +32 493356055.

Poland is violating the fundamental rights of EU citizens and blatantly disregarding EU treaties and standards

The Polish flag flies against a blue sky

The European Commission and member states are duty bound to hold Poland accountable to EU Treaties, asserts ILGA-Europe, alongside two Polish equality organisations, in a legal complaint citing the violation of fundamental rights of the EU by inciting hatred and discrimination against LGBTI people.

On Monday 14 September, ILGA-Europe together with Polish LGBT rights organisations KPH (Campaign Against Homophobia) and Fundacja Równo?ci (The Equality Foundation) submitted a legal complaint to the European Commission about so-called Family Charters and LGBT Free Zones, which over 100 Polish local governments have adopted over the last two years.

The complaint sets out how these declarations introduce discrimination against LGBTI people and thus breach the European Council Directive (2000/78/EC), establishing a general framework for equal treatment in employment and occupation, as well as the Charter of Fundamental Rights Article 15 on Freedom to choose an occupation and right to engage in work, and Article 21 on non-discrimination.

At the same time, many Polish LGBTI people have begun to write to the European Commission, often anonymously out of fear of further stigmatisation and hate, putting forward individual complaints about how they are being discriminated against in the cities that have declared themselves LGBT-free Zones and adopted Family Charters. Over 400 individual complaints were sent to the European Commission by LGBTI persons, sharing their fears for employment, health and life and their stories of discrimination in Poland.
With this complaint, ILGA-Europe and partners provide the legal analysis of how these Charters do not, as claimed by the Polish Prime Minister in a recent letter to the European Commission, protect Polish families, but instead put in place active discrimination against LGBTI people. Although there is no clear individual court case claiming discrimination in recruitment or employment at this point, the analysis shows clearly how the principles of Directive 2000/78/EC and the Charter of Fundamental Rights are being violated.

According to KATRIN HUGENDUBEL, Advocacy Director of ILGA-EUROPE: “The European Commission and Council can no longer remain silent in the face of such blatant violations of the principle of non-discrimination by a member state. Our legal analysis of the texts of the Family Charter clearly dismantles their discriminatory nature. The European Commission is duty-bound to answer the Polish Prime Minister’s letter, clearly rejecting the argument of “defending Polish families” and addressing the real harm that is being perpetrated on LGBTI people in Poland. EU law is being violated and the EC needs to start infringement procedures.”

According to MIKO CZERWI?SKI from FUNDACJA RÓWNO??: “Working in so-called ‘LGBT-free Zones’ we see what detrimental effect this is having on LGBTI people. They are losing their jobs or contracts, are excluded from local communities and are being violently attacked in their own cities. Fundacja Równo?? have also submitted complaints to the EC as we were denied access to an EU-funded cultural centre with the argument that we wanted to hold an “ideological event”, while a homophobic event was allowed to go ahead. The examples of discrimination and violence provided in all of the 400 individual complaints sent to the EC show how seriously Poland is violating fundamental rights.”

According to MIROS?AWA MAKUCHOWSKA from CAMPAIGN AGAINST HOMOPHOBIA (KPH): “LGBT people living in so-called ‘LGBT-free Zones’ cannot wait any longer. Hundreds of complaints have been sent to EC as fundamental rights are being violated on a daily basis. It’s high time for both EC and the Council to act – the citizens are calling for the immediate trigger of infringement procedure and to finally act under the Article 7(1) TEU procedure.”

Poland’s Family Charters are only one element in the hate campaign that Polish LGBTI people have been subjected to since 2018. In the country’s presidential elections earlier this year, President Andrzej Duda  degraded and scapegoated the LGBTI community in his campaign for election victory. This included claims that LGBT people “are not people, but ideology” and “more destructive than communism”, among other attempts at dehumanisation and incitement of hatred and fear. In the 2020 ILGA-Europe Rainbow Map, which benchmarks European countries in terms of LGBTI rights, Poland became the lowest ranking EU country, having lost points because LGBTI human rights defenders have been increasingly at risk, authorities have taken active measures to undermine civil society associations, and there have been attempts to ban public events.

Last week, the Polish Commissioner for Human Rights, published his investigation of the arrests and detention of 48 LGBTI activists, which took place over the weekend of 7-9 August 2020, identifying degrading treatment, bordering on inhumane, in arrest and detention, and breaches of fundamental rights as set out in the Treaty and the Charter of Fundamental Rights, including mistreatment, the right to legal help, to inform a close person, to access to medical help, and the right to information.

KATRIN HUGENDUBEL concludes: “We have seen first actions by the European Commission in August, when Commissioner Dalli rejected six applications for town twinning projects by local governments who have declared themselves LGBT-free zones, but we need a more coordinated and holistic response, both from the European Commission and the European Council.

EC President, Ursula von der Leyen will address the Parliament with her State of the Union speech tomorrow, Wednesday morning.  What state is the Union in when Member States are freely violating the fundamental rights of EU citizens, and the principles of non-discrimination as set out in the Treaty?”

Poland: International institutions must protect LGBTI citizens and ensure the immediate release of activists

Protests in Poland on 7 August 2020

After nearly 2 years of mounting pressure, things came to a boiling point yesterday, August 7, in Warsaw. A spontaneous protest related to the “preventative detention” of an LGBTI activist, Margot Szutowicz, resulted in 48 arrests and extensive police brutality last night. More protests, and more arrests, are expected today as the repression of LGBTI people goes unabated.

The hate campaign against the LGBTI community in Poland has been going on since October 2018 and resulted in LGBTI people becoming a dominant issue during this year’s presidential elections, in which President Duda degraded and scapegoated the LGBTI community on his way to election victory. This included claims that LGBT “are not people, but ideology” and other attempts at dehumanisation and incitement of hate and fear. Over 100 local governments adopted resolutions calling their territories “LGBT-free zones”. Trucks with homophobic banners and audio claiming a link between homosexuality and pedophilia begun driving in public spaces, in some cases stopped and blocked by LGBT activists and allied citizens outraged by the sharing of hateful messages. In one case an altercation ensued and one of the vehicles was damaged. This was followed by repeated covert arrests of LGBT activists by plain clothes police officers in unmarked cars, which creates a climate of fear and state harassment. 

Just a few days ago, an action of decorating monuments with rainbow flags and face masks was organised, which was followed by another series of covert arrests. One of the persons arrested, Margot Szutowicz, received an order for a 2 month detention to prevent her from further action. This sparked a spontaneous solidarity demonstration, during which Margot attempted to surrender to the police officers present. Their refusal to detain her among witnesses and media, and the fact she was later detained in a different location by plainclothes officer in an unmarked car, led to further civil unrest. 48 individuals were arrested and refused access to lawyers. Margot, who is non-binary and uses female pronouns, will be detained in a men’s facility. 

Björn van Roozendaal, Programmes Director at ILGA-Europe, says: “The LGBTI community is being denied the right to exist by the leading political party. LGBTI people in Poland live in a situation of constant, repressive pressure with no access to justice or State protection. In circumstances like these, where marginalised members of society are being attacked from all sides, protest and activism are inevitable, and may even be considered provoked by the government’s failure to protect their fundamental rights and disproportionate law enforcement responses. Let us not forget this is happening in an EU country where the human rights of all citizens are deeply rooted in law.”

We are calling international human rights institutions, including the European Union, the Council of Europe, and the United Nations, to raise their voices against police violence and arbitrary detention, and to demand that the rule of law be followed and fundamental rights protected for LGBTI people in Poland.

Credit: Aleksandra Perzynska and KPH

Campaign Against Homophobia (Kampania Przeciw Homofobii), an ILGA-Europe member organisation from Poland, is calling upon the state and international authorities to summon the District Prosecutor’s Office in Warsaw to revoke Margot’s pre-trial arrest warrant:

And upon the Polish police to immediately release those detained during yesterday’s demonstrations:

Updates (last updated on August 28):

  • August 8-9: The ombudsperson visited all detainees.
  • August 13: Margot Szutowicz had access to a lawyer.
  • August 15: Police intervene when LGBTI activists try to stop a van with homophobic slogans from driving around Warsaw. Police forcefully remove activists and create a corridor of protection for the van with their bodies.
  • August 16: Anti-LGBT march in Warsaw received police protection. LGBTI activists painted their route in rainbow colours, and held a counter-demonstration.
  • August 28: Margot Szutowicz released from pre-trial detention

Further information:

For further comment, contact: 

ILGA-Europe, TGEU and Transvanilla welcome landmark judgement from the European Court of Human Rights recognising the right of refugees to legal gender recognition

Courtroom European Court of Human Rights

In the judgement Rana v. Hungary delivered today, the European Court of Human Rights (ECHR) held that Hungary had breached its obligation to protect the right to private life under Article 8 of the Convention by rejecting the application of an Iranian transgender refugee to have his name and sex marker changed officially.

The judgement is even more significant because it arrives two months after the Hungarian Parliament approved a bill, replacing “sex” on the civil registry with “sex assigned at birth”, which effectively bans legal gender recognition in the country.

Back in 2017, when the case was introduced before the ECHR, it was possible to change one’s documents on the basis of an informal practice. However, the applicant’s request to have his name and sex marker officially changed was rejected because he did not have a Hungarian birth certificate.

The Hungarian Constitutional Court and the European Court of Human Rights noted that there was a legislative gap excluding all lawfully settled non-Hungarian citizens from accessing the procedures regardless of their circumstances, and that this gap “disproportionately restricted their right to human dignity”.

In the case at stake, the national authorities failed to consider the fact the applicant had been granted refugee status precisely because he had been persecuted on the grounds of his gender identity in Iran.

Importantly, not only did the Court recall the State’s positive obligation under Article 8 to secure the right to respect for private life, by providing a procedure allowing to have one’s gender identity legally recognised it also clarified that such an obligation extends to all lawfully settled non-national citizens.

Welcoming the judgement, Senior Litigation Officer with ILGA-Europe Arpi Avetisyan said: “This is an important and symbolic judgment – for the first time the Court confirms the right  to legal gender recognition of refugees, and taking note of the right to human dignity as underscored by the Hungarian Constitutional Court. Significantly, it also reiterates States obligations to have procedures in place allowing recognition of gender identity and name change for trans people in general.  We call on Hungarian government to implement the judgment swiftly and bring necessary changes”

TGEU Policy Officer Jonas Hamm added: “This judgement sends a strong message to one of the most marginalised groups within the European trans community but also European stakeholders. It confirms that trans rights are indeed human rights and trans refugees enjoy the same protection under the European Convention for Human Rights as everybody else. In times like these, this is a strong signal of hope to our most vulnerable members.”

“This judgement is timely for the European trans community and reassures what the Court had previously made clear: legal gender recognition has to be possible in states,” said Barnabás Hidasi, President of Transvanilla. “Now the court confirmed it has to be accessible also for refugees. 23 other applicants launched cases against Hungary with the help of Transvanilla in 2017 and in 2019. They are all Hungarian citizens whose LGR cases were delayed or not processed by authorities. We trust the Hungarian government will introduce a recognition procedure again in compliance with today’s decision.”

Further information:

For media requests to ILGA-Europe, TGEU and Transvanilla on this issue, please contact Ana Muñoz: ana@ilga-europe.org, +32 493 35 60 55

Hungary rolls back legal protections, puts trans and intersex people at risk

Trans flag

TGEU, ILGA-Europe, IGLYO, and OII Europe condemn decision of Hungarian Parliament to follow the government and restrict access to fundamental rights for trans and intersex people.

On 19 May 2020, following weeks of international outcry, the Hungarian Parliament voted 133 in favour, 57 opposed, to approve an omnibus bill, one article of which replaces the category of “sex” on the civil registry with one of “sex assigned at birth”.

The article within the omnibus bill, Article 33, amends the civil registry document, which is used as the basis for all legal identity documents for Hungarian citizens. Replacing the changeable characteristic of “sex” with an immutable one, “sex assigned at birth”, in practice Hungary has made legal gender recognition, the process by which trans and intersex people can bring their documents into alignment with their gender identity, impossible.

Before the proposal of this omnibus bill, the situation was bleak for trans and intersex Hungarians. According to the Second LGBTI Survey of the Fundamental Rights Agency, published last week, 76% of trans Hungarians believe that the Hungarian government “definitely does not effectively combat prejudice and intolerance against LGBTI people”, compared to an EU-28 average of only 38%. Additionally, 84% of trans respondents in Hungary reported that the main reason for increasing prejudice, intolerance, or violence in the country was “Negative stance and discourse by politicians and/or political parties”.

The international response was significant, with thousands of posts using the hashtag #drop33, referring to the specific article of the bill, as well as statements from the Council of Europe Commissioner for Human Rights, the European Parliament, the United Nations Special Procedures, and many more

Katrin Hugendubel, Advocacy Director for ILGA-Europe, said: “Legal gender recognition is the bedrock of access to equality and non-discrimination for trans and intersex people. Without it, these populations are subject to immense stigma, discrimination, harassment, and violence every time they use their identity documents – be it at the bank, when going to the doctor, when applying for a job, or even when applying for a cell phone contract.”

Dan Christian Ghattas, Executive Director of OII Europe, continues: “Intersex people can also need access to legal gender recognition, and are subject to discrimination and stigma when that is not possible. According to the FRA Survey, 21% of intersex Hungarians believe that barriers to legal gender recognition are their biggest obstacle.”

The European Court of Human Rights has consistently and clearly asserted that legal gender recognition falls within the right to private and family life in the European legal framework, specifically protected by Article 8 of the European Convention on Human Rights. ECtHR jurisprudence indicates that the personal characteristic of “sex” is one that, so long as it is publicly recorded by States, should be possible to change to protect the human rights of trans and intersex people to private and family life, to health, to found a family and marry, and to recognition before the law.

“We are dismayed by this decision to roll back established rights,” says Masen Davis, Interim Executive Director of Transgender Europe. “Trans and intersex Hungarians, as all people in Hungary, should have their human rights equally protected and without discrimination.”

For comment, contact: Ana Muñoz Padrós, ILGA-Europe: ana@ilga-europe.org, +32 493 35 60 55

FRA’s 2nd LGBTI Survey points to clear need for decisive and immediate action by the EU

EU flag

There has been little progress in the lived experience of LGBTI people in Europe over the past seven years. This is a clear message coming out of the report on the EU’s Fundamental Rights Agency (FRA)  2nd LGBTI survey published yesterday.

The survey of 140,000 lesbian, gay, bisexual, trans and intersex (LGBTI) people reveals that, overall, more LGBTI people felt discriminated against in the previous year (43 %), compared to when the first survey was taken in 2012 (37 %). While the EU averages mask important differences between countries, it is clear that discrimination and inequality continue to be widespread across the European Union. The FRA report concludes that there’s “a long way to go for LGBTI equality,” with FRA Director Michael O’Flaherty calling on policy-makers “to take note and do more to actively promote full respect for rights of LGBTI people”.  

Commenting on the report, Evelyne Paradis, ILGA-Europe’s Executive Director, said: “Combined with ILGA-Europe’s Rainbow Europe Map launched yesterday, we have a uniquely comprehensive picture of the state of affairs for LGBTI people in Europe, with data on the legal and policy landscape complemented by data about the lived reality of LGBTI people in Europe. The unmistakable conclusion is there are no more excuses for complacently believing that the work on LGBTI equality is done, anywhere in Europe.”

To complete the picture, the EU Commission published today the evaluation of its “List of actions to advance LGBTI equality,” the first ever Commission policy framework. The report reflects on the achievements and lessons learned over the past five years. In her remarks, Commissioner for Equality, Helena Dalli, states that her aim is to build on the success of the List of Actions by presenting an EU LGBTI+ strategy that will strengthen the Commission’s and Member States’ efforts to combat the discrimination of LGBTI+ people in the EU and beyond. 

According to Katrin Hugendubel, Advocacy Director at ILGA-Europe:  “We welcome Commissioner Dalli’s ongoing commitment to present an LGBTI equality strategy by the end of the year. Today’s Commission report is reconfirming that a strong strategic framework, with the highest level political support, gives the Commission the tools to have a meaningful impact. Now, thanks to the FRA survey, we also have solid evidence of the needs of LGBTI people in the EU, pointing to where concrete action is most needed to ensure equality. The case could not be stronger for why an EU LGBTI equality strategy is needed and why action is needed now.”

The FRA Survey, conducted prior to the start of the Covid-19 pandemic, already showed that over a third (37 %) of the respondents indicated having difficulties to make ends meet. As the public health crisis unfolds, the negative impact on LGBTI people’s health and well-being, physical and economic safety, is increasingly reported. This is further reinforcing the case for targeted measures to meet the needs of those most marginalised in society, in particular LGBTI people who experience homelessness, violence, unemployment and economic precarity. 

Evelyne Paradis concludes: “Equality is not a luxury item, something we do when everything is going well. More than at any other time, it is in times of crisis that we need to take action to support those who are most marginalised and disadvantaged in our societies. LGBTI people in Europe need the EU to be a leader by placing equality at the core of its political agenda now more than ever.”

Background references:

ILGA-Europe has published “EU LGBTI STRATEGY 2020-2024 – Key EU legislative and policy initiatives for LGBTI rights in Europe and beyond”. This document presents concrete proposals of legislative and policy initiatives to be included in the EU LGBTI Strategy.

For comment, contact: Ana Muñoz Padrós, ILGA-Europe: ana@ilga-europe.org, +32 493 35 60 55

ILGA-Europe Rainbow Map Points To Make-or-Break Moment for LGBTI Rights in Europe

Rainbow Europe Map 2020

In light of the COVID-19 crisis, the annual ILGA-Europe Rainbow Map shows we have come to a pivotal moment for LGBTI people’s human rights in the region.

Published today, May 14, 2020, the ILGA-Europe Rainbow Map and Index reveals that once-leading countries in Europe are falling behind in their commitments to equality for LGBTI people. Combined with the COVID-19 pandemic, which disproportionately affects the most vulnerable and is being used by some governments as an excuse to advance their agendas to curtail human rights, the Map’s findings identify a make-or-break moment for LGBTI equality in Europe.

Key findings of the Rainbow Map 2020 include:

  • There has been no positive change in 49% of countries
  • For the second year in a row, countries are moving backwards on the Rainbow Index, as existing protections are disappearing
  • Trans rights are where most of the current movement in terms of LGBTI equality is happening, for better or worse.
  • Other forward movement, although on a smaller scale, is in the inclusion of equality measures protecting intersex people against discrimination
  • Regression is most visible where civil and political rights are eroded: LGBTI human rights defenders increasingly at risk, authorities taking active measures to undermine civil society associations, and attempts to ban public events

According to Executive Director of ILGA-Europe, Evelyne Paradis: “This is a critical time for LGBTI equality in Europe. With each year passing, more and more countries, including champions of LGBTI equality, continue to fall behind in their commitments to equality for LGBTI people, while more governments take active measures to target LGBTI communities. History shows that those who are vulnerable before a crisis only become more vulnerable after a crisis, so we have every reason to worry that political complacency, increased repression and socio-economic hardship will create a perfect storm for many LGBTI people in Europe in the next few years.”
 
“Our call to put high political priority on LGBTI equality has never been more pressing. The results of this year’s Rainbow Map show that equality measures are falling through the cracks in several countries, not because of lack of political and public support but because of widespread complacency about the need for LGBTI equality measures. Fewer and fewer decision-makers are picking up the mantle to see important pieces of legislation through and keep political momentum, so processes are stalling or not being followed up. There are reasons to be extremely worried that this situation will spread as political attention is immersed in the economic fall-out of COVID-19.”

Amidst overall stagnation and regression, advances continue to be made on trans and intersex rights. Indeed, most of the positive changes reported this year take place in countries which included gender identity and sex characteristics in equality laws (as was the case in Andorra, Belgium, the Netherlands, North Macedonia, and Switzerland) and adopted new legal gender recognition (LGR) legislation which respects the principle of self-determination (Iceland) and gives minors access to LGR (Spain). However, in an increasing number of countries, LGR legislative measures are being stalled (Albania, Cyprus, Finland and Sweden), including in the context of a hostile climate on trans rights fuelled by opposition groups, as was the case in the UK. A number of countries are also losing points this year (namely Hungary, Azerbaijan, Serbia, and the UK) because existing administrative and legal procedures that allow for name or gender marker change in official documents for trans people are not effective in practice.

According to Viima Lampinen, Co-chair of the ILGA-Europe Executive Board: “The news that more governments are adopting laws that protect trans, intersex and non-binary people must be read with extreme caution. Targeted attacks on trans rights by opposition groups have been observed in an increasing number of countries across the region, especially transphobic speech fuelled online. The safety and wellbeing of trans communities in Europe remains precarious and only made more fragile by governments’ responses to the current pandemic, which is affecting these communities particularly hard. Trans, intersex and non-binary people need governments to stand strong as vocal allies, taking all necessary steps to secure their rights in law and in practice, and taking their needs into consideration in their COVID-19 responses.”

The 11th ILGA-Europe Rainbow Map is published at an unprecedented time in the world, during which vulnerable minorities, including LGBTI people, are particularly affected and the inequalities in our societies have been starkly brought into focus. Along with this, a number of European governments have used the pandemic as an excuse to make aggressive moves against LGBTI and other human rights. This is happening at a time when countries like Poland (dropping to the bottom of the EU ranking) and Turkey are going backwards on the Rainbow Index for having failed to uphold such fundamental freedoms as freedom of assembly, freedom of association and protection of human rights defenders. 

Says Darienne Flemington, Co-chair of the ILGA-Europe Executive Board: “Countries like Hungary, Poland, Turkey have been in the spotlight because of their policies targeting LGBTI communities prior to the pandemic. The proposed ban of legal gender recognition in Hungary, proposed laws to ban abortion and sex education in Poland, scapegoating of LGBTI people as the source of the coronavirus by Turkey’s political leaders – these are all alarming signals of how governments with strong authoritarian tendencies are emboldened by the crisis to further limit the rights of vulnerable groups and minorities. If there was ever a time for European governments and institutions to stand firm on the rule of law and human rights, it is now.”

Evelyne Paradis concludes: “Amidst the public health emergency and economic turmoil we are facing, there is a crisis of structural inequality unfolding as well, one that makes the many vulnerable people in our societies even more at risk. In the current climate, it is only more evident that laws and policies are often the last lines of defence for LGBTI communities as other marginalised groups. That’s why it’s never been more important that governments enshrine the protection of LGBTI people into law and take concrete measures to make sure that they can live as who they are in societies that are just, equal and fair.” 

The official launch of the ILGA-Europe Rainbow Map and Index 2020 will be broadcast on Facebook Live, May 14 at 3pm CET, with a round-table discussion bringing together panellists from civil society and policy makers. 

Executive Summary

Rainbow Europe – ILGA-Europe’s annual benchmarking tool – is comprised of the Rainbow Map and Index and national recommendations. ILGA-Europe have produced the Rainbow Map and Index since 2009, using it to illustrate the legal and policy situation of LGBTI people in Europe.

The Rainbow Map and Index ranks 49 European countries on their respective legal and policy practices for LGBTI people, from 0-100%.

In order to create our country ranking, ILGA-Europe examine the laws and policies in 49 countries using a set of 69 criteria – divided between six thematic categories: equality and non-discrimination; family; hate crime and hate speech; legal gender recognition and bodily integrity; civil society space; and asylum. More information on the list of criteria and their weight on the total score can be found at www.rainbow-europe.org/about 

Rainbow Europe 2020 individual criteria and the percentage ‘weight’ assigned to them remain exactly the same as the 2019 version, meaning that it is easier than ever before to compare a country’s momentum or regression on LGBTI equality laws.

Policymakers, researchers and journalists are able to go ‘behind’ the points and see the original information sources that we base our Map and Index ranking on. This additional layer of information is available through our updated Rainbow Europe web module, www.rainbow-europe.org. 

The Rainbow Map and Index presents a picture of what the policy landscape is like right now, while our country-specific recommendations attempt to answer the question “what’s next?” These recommendations for national policymakers are intended to encourage policymakers to address the most pressing legal and policy priorities within the framework of our Rainbow Map and Index. The recommendations were gathered following an online consultation with a wide range of LGBTI organisations in the various countries. As a result, the recommendations are tailored to the needs of activists working on the ground.

TOP 5, Rainbow Europe 2020BOTTOM 5, Rainbow Europe 2020
1. Malta (89%)45. Monaco (11%)
2. Belgium (73%)46. Russia (10%)
3. Luxembourg (73%)47. Armenia (8%)
4. Denmark (68 %)48. Turkey (4 %)
5. Norway (68%)49. Azerbaijan (2%)

For the fifth year in a row, Malta continues to occupy the number one spot on the Rainbow Europe Map, with a score of 89%. 

Belgium comes second place for the third time with a score of 73%.

Luxembourg receives the same score as Belgium and occupies the third spot on the ranking for the second year in a row. 

The three countries at the other end of the Rainbow Europe scale are Azerbaijan (2%), Turkey (4%), and Armenia (8%). Turkey’s score has been decreasing since 2015, due to restrictions on freedom of assembly and association. Azerbaijan has also lost points over the past two years due to irregularities on legal gender recognition. 

Hungary is the country with the most dramatic drop in its score, losing 8.46% points in relation to the suspended procedures for legal gender recognition and the lack of proper state protection at public events. Poland has also dropped by 1.9% and is now the lowest EU country on the map. 

Another important deduction happened, with France losing 6.80% points due to the expiration of the government’s action plan. 

Montenegro, North Macedonia, and the Netherlands were the three countries with the biggest jump in scores. Montenegro announced a comprehensive action plan for the next four years and prohibited discrimination based on sex characteristics. North Macedonia amended its equality and criminal codes, adding sexual orientation and gender identity as protected grounds. In the Netherlands, the Equal Treatment Act was amended with the inclusion of gender identity, gender expression, and sex characteristics grounds. 

Equality action plans have expired in Belgium, Finland, and France, while Croatia, Ireland, and Kosovo have shortcomings and implementation problems with their action plans. Serbia and Andorra included sexual orientation and gender identity protection in healthcare legislation. Belgium and the Netherlands were the only countries that recognised ‘sex characteristics’ in their equality laws.

Recognition of family legislation is stagnating across Europe. This year, only Northern Ireland (UK) introduced marriage equality and Monaco recognised the right to cohabitation for same-sex couples (coming into effect on 27 June 2020). Serbia imposed a ban on medically assisted insemination services for people with a history of same-sex relationships.

Court judgements in several countries had groundbreaking effects on the lives of LGBTI people, including Spain’s Constitutional Court’s ruling against the age limit for gender marker change for trans people; Switzerland’s Federal Court decision saying that the Constitution protects ‘gender identity’ under ‘sex/gender’; and Kosovo’s Basic Court decision approving the legal gender recognition of a trans man.

North Macedonia was this year’s only country extending protection from hate crime, amending its Criminal Code to add sexual orientation and gender identity grounds. Switzerland’s referendum approved the inclusion of ‘sexual orientation’ grounds in the Criminal Code. 

The right to self-determination for trans people has been recognised only in Iceland with its new Gender Autonomy Act. Legal gender recognition procedures have become more accessible through trans activists’ efforts in Armenia, Cyprus, Kosovo, and Montenegro. The implementation of existing procedures has worsened in Azerbaijan, Georgia, Serbia, Turkey, and Northern Ireland (UK).

ILGA-Europe welcomes judgement from the Court of Justice of the European Union saying that a homophobic statement on an Italian radio show constituted discrimination in employment

View of the Court of Justice of the European Union

In a judgement delivered on 23 April 2020, the European Court of Justice (CJEU) held that statements made by a lawyer during a radio programme, saying he would never recruit a “homosexual” or wish to use the services of such persons, fall within the material scope of EU Directive 2000/78 (‘the anti-discrimination directive’).

he case was brought by Rete Lenford Avvocatura Per I Diritti LGBT (Lawyers For LGBT Rights), an association of about 150 lawyers founded in 2007 to take representative action on the behalf of LGBT people before national and international jurisdictions, and to ensure enforcement of LGBT rights in Italy.

Having taken the view that that lawyer had made remarks constituting discrimination on the ground of the sexual orientation of employees, Rete Lenford brought proceedings in the Italian courts against him for damages. The action was successful at first instance and the ruling was upheld on appeal. The lawyer went on to appeal before the Italian Supreme Court of Cassation, which then sought a preliminary ruling from the CJEU on the interpretation of the concept of ‘conditions for access to employment … and to occupation’, within the meaning of the anti-discrimination directive.

Importantly the Court noted that the lawyer’s statements may fall within the ambit of the anti-discriminiation directive, even if no recruitment procedure had been opened or planned at the time when the statements were made, where the link between the statements and the conditions for access to employment is not hypothetical.

Because discriminatory statements can have a chilling effect on prospective employees, therefore difficult to have an identifiable victim, the Court noted that where national law provides relevant conditions,  an association, as in this case Rete Lenford, may bring legal proceedings for a finding of discrimination and for a sanction to be imposed. 

Welcoming the judgement, Senior Litigation Officer with ILGA-Europe Arpi Avetisyan said: “I’m extremely pleased that CJEU reaffirmed protection against homophobia in employment and made clear that discriminatory statements in employment and occupation under the EU law are strictly prohibited. The Court sent a strong message that EU law does not tolerate discrimination based on sexual orientation and safeguards “the principle of equal treatment in employment and occupation, and the attainment of a high level of employment and social protection”. Congratulations to Rete Lenford on the victory and for setting an important milestone in clarification of EU law.”

According to Miryam Camilleri, President of Avvocatura per i Diritti LGBTI – Rete Lenford: “We are overwhelmed by this result. This Judgement represents a great advancement in the enforcement of the protection of LGBTI rights in the EU and in each European Country – the re-affirmation of the right not-to-be-discriminated against and the empowerment of many fights conducted in the name of LGBTI individuals. At the same time, we are particularly honored to have provided the opportunity for the Court to take this historic decision. It’s implications expand beyond the boundaries of LGBTI rights, and serve the interests of associations and NGO’s working in other discriminated against sectors.”

For comment, contact Arpi Avetisyan, Senior Litigation Officer with ILGA-Europe at arpi@ilga-europe.org

#Drop33: Europe’s Two Largest Networks of LGBTI and Transgender Organisations call on Hungarian Parliament to Reject Attempts to Ban Legal Gender Recognition

The Hungarian parilament building

ILGA-Europe and Transgender Europe, the two largest networks of LGBTI and trans organisations in Europe and Central Asia, representing over 800 organisations and groups across the region collectively, are calling on the Hungarian Parliament and the Justice Committee of the Parliament to drop Article 33 of a legislative omnibus bill, which would deny access to legal gender recognition in the country.

The Hungarian government Tuesday, 31 March, released a draft omnibus bill simultaneously amending many laws and provisions. One of the laws proposed for amendment relates to legal gender recognition for trans people – proposing to replace “sex” with “sex assigned at birth” in the national registry and on identity documents, as cited in Article 33 of the omnibus bill.

The cited reasoning for this amendment is: 

“The sex entered into the civil registry is based on facts determined by doctors, declared by the registry. The registry certifies the facts and rights it includes until proven otherwise, therefore it does not create rights. However, the sex declared by the registry could create rights or obligations, and therefore it is necessary to define the term of birth sex. Given that completely changing one’s biological sex is impossible, it is necessary to lay it down in law that it cannot be changed in the civil registry either.”

Functionally, this amendment would mean that legal gender recognition would become impossible under any circumstances in Hungary, because all current mentions of “sex” in identity documents would be changed to the immutable characteristic of “sex assigned at birth”. Currently identity documents can be changed in Hungary by law, although processes have been suspended for nearly two years. 

The amendment comes at a time when the Hungarian Parliament has given Prime Minister Viktor Orbán power to rule by decree indefinitely because of the COVID-19 crisis, which means he no longer needs to consult other lawmakers before making policy decisions. Orbán’s attacks against the LGBTI community go back to 2015, when he blocked a draft agreement at the Council of the European Union which called on the European Commission to tackle homophobic and transphobic discrimination. He has also refused to ratify the Istanbul Convention because of its definition of gender as a social construct, and in 2017 he hosted the International Organisation of the Family (IOF), a US group which campaigns against same-sex marriage. 

The Hungarian people overwhelmingly support access to legal gender recognition for trans people. According to a Median representative survey in September 2019, 70% of respondents believe that trans people should have access to legal gender recognition and only 17% believed that trans people should under no circumstances change their gender or name in their papers.

According to Advocacy Director of ILGA-Europe, Katrin Hugendubel: “Case law from the European Court of human rights clearly establishes the right to legal gender recognition for transgender people. International human rights actors must act firmly and swiftly to stop this extreme rollback in a settled area of human rights law.”

Trans-led Hungarian civil society organisation Transvanilla Transgender Association President Barnabás Hidasi affirms that “legal gender recognition ensures a person’s right to self-determination, and that procedures must be existent, quick, transparent, and accessible”.

“Hungary’s proposed Article 33 runs counter to well-established international human rights standards, including the Council of Europe’s recommendations to member states,” said Masen Davis, Interim Executive Director at Transgender Europe (TGEU). “This dangerous bill would subject trans people in Hungary to increased scrutiny, discrimination, and violence. The Parliament should be focusing on what the people of Hungary to survive the COVID-19 pandemic, not using this crisis as cover to roll back the rights of an already-marginalised group.”

ILGA-Europe and Transgender Europe call on the Hungarian Parliament and the Justice Committee of the Parliament to #Drop33, amending the omnibus bill to protect the fundamental rights of all Hungarians. Further, we call on international human rights actors to raise awareness of this issue, and call on the Hungarian government to mobilise to protect trans people in Hungary and everywhere from derogations of their rights. 

For further comment, contact Ana Muñoz Padrós, Communication and Media Officer, ILGA-Europe at ana@ilga-europe.org or +32 2 609 56 59.

Annual Review of the situation of LGBTI people paints a picture at odds with a widespread notion that in Europe the work is done

Rainbow flags blowing

Amid rising hate speech and crime, vulnerable people across Europe find themselves disconnected from the popular story of the region’s success in securing LGBTI rights, major human rights review finds.

Launched today (4 February 2020), the 9th edition of ILGA-Europe’s Annual Review details the human rights situation of lesbian, gay, bisexual, trans and intersex (LGBTI) people across the 49 European countries, and the five countries of Central Asia. Created with LGBTI activists and experts on the ground, the Review also identifies trends, both current and on the rise.

This year’s review, which charts developments during the 12 months of 2019, paints a complex picture that diverges from the widespread narrative that all is well for LGBTI people in large parts of Europe. Central to this is a sharp rise in anti-LGBTI hate speech carried out by public figures across Europe – in countries ranging from Bulgaria, Poland and Turkey, to Cyprus, Finland, Greece, Portugal and Spain – and the very real consequences of this for LGBTI individuals and groups. In many countries across the European and Central Asian regions, and not only those with a documented growth in official bias-motivated speech, there has also been an equally sharp increase in online hate-speech and physical attacks on LGBTI people, many of the latter premeditated and brutal.

The review identifies that this is a pan-European phenomenon, from the UK where the populist narrative surrounding Brexit can be linked to an increase in anti-LGBTI hate crimes and incidents, to the banning of events in many towns and cities on the continent, the prosecution of participants in Pride marches in Turkey, and a growing presence of anti-LGBTI and neo-Nazi protesters in public spaces during LGBTI events across the region.

Alongside the rise in hatred, there is increased movement of people from within the region to countries perceived as less harsh. More LGBTI people left countries such as Albania, Bosnia and Herzegovina, Tajikistan, and Turkmenistan for neighbouring countries where the situation might be perceived as relatively safer. There is also an anecdotal rise in people saying they want to leave countries like Poland for other EU countries.

Reported obstacles in access to healthcare, bullying in schools and the workplace, and LGBTI people being denied services, often with a lack of governmental intervention, all play a part in the overall picture of a Europe where lived experiences for a large part do not match up with the surface message that LGBTI rights and equality have been fully secured.

According to Evelyne Paradis, Executive Director of ILGA-Europe: “It is not all bad news. The issue of bodily integrity for intersex people continues to gain more prominence on the political agenda of governments and institutions. 2019 was a year of positive developments for rainbow families in the region, with an expansion of family rights in a few countries; and important advancements continue to be made on reforming or establishing legal gender recognition procedures, even if in many countries progress is slowing down.

“However, the lived reality of LGBTI people in many parts of Europe and Central Asia is increasingly difficult and for a large part remains invisible, even to organisations like ILGA-Europe. Action is needed. Governments still have so much to do, from adopting laws that guarantee the protection of people’s rights and giving public authorities the means to translate policy into practice across sectors, to leading by example in having a discourse promoting social acceptance and inclusion.

“By making people aware of such a broad and nuanced picture, which is constantly shifting and evolving, the ILGA-Europe Annual Review aims to give a sense of the enormity of issues and areas that affect the lives of people, which will continue to require attention, especially in a context where LGBTI people are being targeted and vulnerability is heightened.”

The 9th ILGA-Europe ‘Annual Review of the Human Rights Situation of LGBTI people in Europe and Central Asia, 2020’ was launched at the European Parliament today (Tuesday, February 4) in the presence of activists from Bulgaria, Bosnia and Herzegovina, and Organisation Intersex International (OII) Europe, and a representative from EU Commissioner for Equality, Helena Dalli.

Re-opening Accession Talks with the Western Balkans is Crucial for Protecting LGBTI Rights

EU flags

A letter sent today (27 January) to the Croatian Presidency by ILGA-Europe and the Equal Rights Association (ERA) stresses that opening accession talks with North Macedonia and Albania is critical in protecting LGBTI rights.

“The blockage of accession talks with North Macedonia and Albania negatively impacts LGBTI rights in the region.” This is the main message of a letter sent today to the Croatian Presidency by ILGA-Europe and ERA, the LGBTI Equal Rights Association for Western Balkans and Turkey, and signed by ILGA-Europe’s member organisations from North Macedonia and Albania.

In October last year, the European Council failed to approve the opening of accession talks with the Western Balkans, after France refused to begin negotiations with both Albania and North Macedonia, while Denmark and the Netherlands expressed reservations about setting a date for opening negotiations with Albania.

Activists across the region have identified the decision not to open accession talks with the Western Balkans as yet another sign that the accession process is not credible – that the EU requires Albania and North Macedonia to make concessions as agreed, yet does not hold its end of the bargain.

According to ILGA-Europe’s LGBTI Enlargement Review 2019, the EU accession process has been, and continues to be, a driving force for change in the recognition of the human rights of LGBTI people throughout the region. Year on year the human rights of LGBTI people continue to feature notably in the reports, assessing progress to date and setting out recommendations for the authorities to implement in the future.

According to Katrin Hugendubel, Advocacy Director at ILGA-Europe: “The accession process has been a game-changer in the region as regards LGBTI rights. The blockage of talks has dramatically damaged the EU’s credibility and countries in the region are losing the will to comply with the human rights standards set by the EU as a prerequisite for accession.”

“LGBTI organisations and activists in the Western Balkans have expressed great worries and concerns about these developments. The progress the countries in the Western Balkans have made over the last years when it comes to the protection of the rights of LGBTI people is still fragile, and support from European institutions is still key. Reopening the accession talks needs to be a priority to ensure the EU can remain a supportive voice and driver for fundamental rights in the region,” Hugendubel continued.

The main recipient of the letter is the Croatian Foreign Minister, Gordan Grli?. It has also been sent to European Commissioner for European Neighborhood Policy and Enlargement Negotiations, Olivér Várhelyi and the High Representative of the European Union, Josep Borell Fontelles, as well as representatives from relevant Embassies and Permanent Representations.

According to the letter, “failure by the European Council to move forward with accession talks, despite all the important advances [in LGBTI rights] in the Western Balkans, risks that not only the governments of North Macedonia and Albania will turn away from the enlargement process, but that throughout the region the trust in the process is lost and governments no longer stand by their commitments to uphold human rights, including those of LGBTI people, as a value to be protected and improved.”

The letter has been sent to coincide with the beginning of the Croatian Presidency, and after Mr. Grli? stated in a European Parliament Foreign Affairs Committee meeting that the Presidency would to its best to begin accession talks with North Macedonia and Albania during the first half of this year.

The letter reads as follows: 

It has been over 16 years since the European Union and Western Balkan countries agreed in Thessaloniki on the shared values of democracy, rule of law, respect for human and minority rights, solidarity and a market economy, which constitute the very foundations of the European Union. The EU reiterated its unequivocal support to the European perspective of the Western Balkan countries and clearly stated that the future of the Balkans is within the European Union. The process and the prospects it offered were to serve as the anchor for reform in the Western Balkans through a shared agenda, and commitment to its implementation from all sides, all the way to their future accession, in the same way the accession process has done in Central and Eastern Europe.

The EU accession process has been an important driver and support for reconciliation of the region that went through a turbulent decade of wars, ethnic conflicts and economic and societal crisis and a leading path towards the respect of human rights and the rule of law for everyone. 

Within this period, legislative steps were taken to better protect the rights of LGBTI people, as EU integration served as an anchor for reforms in the region. We saw a time of real advances for human rights for all, including the protection of the fundamental rights of LGBTI people and an acknowledgement that LGBTI people are part of Western Balkan societies. The accession process has amplified the voices of local LGBTI activists and initiatives, helping drive forward their crucial work in protecting LGBTI rights and democratic societies. Most of the countries have developed LGBT National Action Plans which have created, or envisaged legal provisions for LGBTI people to be protected from discrimination and violence and to be treated equally, for example introducing recognition of same-sex partnership, and ensuring legal gender recognition procedures that will allow people to have personal documents based on self-determination. These reforms in the framework of the EU accession process of Western Balkan countries are ongoing, and advances on achieving equality for LGBTI persons are still fragile and should not be taken for granted. For example, implementation of LGBT National Action Plans still need to be properly implemented across the region, and in December, notably after the refusal of accession negotiations and contrary to European Commission advice, Albania took steps backwards when it comes to respect of freedom of speech by approving controversial anti-defamation laws.

The decision not to open accession talks with Albania and North Macedonia despite their clear efforts and advances, damages the credibility of the accession process throughout the region, a process which has been fundamental in improving the legal rights and social acceptance of LGBTI people. Albania and North Macedonia have made significant steps and, like other Western Balkan countries, have demonstrated that the rule of law and respect for human and minority rights constitute the very foundations of these two countries. North Macedonia adopted many missing laws to protect the rights of LGBTI people in the past 24 months, confirming the very essence of European values regarding fundamental rights by explicitly including sexual orientation and gender identity in its anti-discrimination, education, media and hate crime legislation. Albania adopted a number of laws protecting LGBTI people from discrimination in employment and education, and hate crime laws inclusive of sexual orientation and gender identity. ERA gathered over 200 human rights defenders in the Albanian capital of Tirana for its regional LGBTI conference this November, when the very first lesbian* march was also held in the city’s streets, without incident. North Macedonia held the first Pride Parade in June 2019, and the Ministry of Labour and Social Policy organized its first National Conference on Advancement of LGBTI Rights also in June 2019.

The failure by the European Council to move forward with accession talks, despite all these important advances, risks that not only the governments of North Macedonia and Albania will turn away from the enlargement process, but that throughout the region the trust in the process is lost and governments no longer stand by their commitments to uphold human rights, including those of LGBTI people, as a value to be protected and improved.

With no clear support from the EU and by stopping the EU integration process, LGBTI communities and activists in the Western Balkans are once again at risk of increased marginalisation and of being left behind, while LGBTI movements will have even less support and space for development.

As throughout Europe, also in the Western Balkans, we are witnessing the continuous rise of populism, political and religious extremism, and the emergence of powerful forces against women’s rights, sexual and reproductive rights, and LGBTI rights. These forces are attempting to restrict and threaten the rights and freedoms of LGBTI people. With LGBTI communities and activists still living in the fragile and yet to be fully reformed Western Balkans, facing a large number of human rights challenges, we have to state our deepest regrets and high concerns for the European Council’s historic error of refusing to start accession talks with North Macedonia and Albania.

The strong and devoted presence of the EU in the Western Balkans is crucial for the overall improvement of the position of marginalised groups such as LGBTI people and its absence can severely damage the newly gained and still fragile progress of the past decade and a half. The LGBTI movement across the region, including in Albania and North Macedonia, always protected the cause of EU integration and its values whenever this was questioned. We also recognise that the EU became the strongest ally of LGBTI civil society in the region, and bravely fought and is still fighting for the advancement of rights for every LGBTI individual. 

Therefore, we call on you, in your position as an ally to the cause of EU integration and the consolidation of rule of law and fundamental rights in the region, to raise awareness about the wide-spread consequences of this situation, and to do everything in your power to ensure that the start of accession talks is unblocked and to reiterate the European perspective of all Western Balkan countries.

ILGA-Europe welcomes a landmark European Court of Human Rights judgment on online hate speech

European Court of Human Rights main hearing room

Today, the European Court of Human Rights found Lithuania’s failure to investigate online hateful comments against a gay couple to violate their rights to private and family life as well as being discriminatory on the ground of sexual orientation.

The landmark case of Beizaras and Levickas v. Lithuania originated after one of the applicants posted a photograph of him kissing his male partner on his Facebook page, which led to hundreds of online hate comments. Some were about LGBT people in general, while others personally threatened the couple. The applicants alleged that they had been discriminated on the ground of sexual orientation, on account of the public authorities’ refusal to launch a pre-trial investigation into hateful comments left on the first applicant’s Facebook page. They also argued that the Lithuanian authorities’ refusal to launch a pre-trial investigation had left them without the possibility of legal redress.

In a unanimous judgment, the Court found violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights, taken in conjunction with Article 8 (right to respect for private and family life), and Article 13 (right to an effective remedy).

The Court reiterated the authorities’ positive obligation under Article 8 to effectively investigate whether the comments regarding the applicants’ sexual orientation constituted incitement to hatred and violence. The Court considered that the failure to discharge such obligation was due to the “discriminatory state of mind” of the authorities. Accordingly, the Court held that it constituted violation of Article 14, taken in conjunction with Article 8 of the Convention.

The Court found that the statistics provided inter alia by the third-party interveners and ECRI’s report demonstrated a clear lack of willingness by the Lithuanian authorities to prosecute perpetrators. The applicants had been denied an effective domestic remedy in breach of Article 13 of the Convention.

Importantly the Court reaffirmed the right of individuals to openly identify themselves as gay, lesbian or any other sexual minority and the growing general tendency to view relationships between same-sex couples as falling within the concept of “family life”.

The Court’s judgment was informed by a third party intervention submitted jointly by the AIRE Centre (Advice on individual rights in Europe), ILGA-Europe, the International Commission of Jurists (ICJ) and the Human Rights Monitoring Institute (HRMI).

“Today’s judgment is ever more important in establishing State’s positive obligations in tackling hate speech against LGBTI people in Lithuania and across Council of Europe member States amidst the rise in hate in a number of countries,” said Arpi Avetisyan, Senior Litigation Officer, ILGA-Europe.

“The Court was clear that such ‘undisguised calls on attack’ on the persons’ physical and mental integrity require protection by the criminal law and public authorities must apply the law without discrimination. We hope this judgment will be implemented duly and promptly ensuring equality and safety for the LGBTI community in Lithuania.”

Robert Wintemute, Professor of Human Rights Law at King’s College London (UK) and co-representative of the applicants, said:  “I am very pleased that the European Court of Human Rights has sent such a strong message to national authorities across Europe that they must take anti-LGBTI hate speech seriously, and investigate complaints, even about a single hateful comment on Facebook, let alone one that LGBTI persons should be killed. .”

Tomas Vytautas Raskevi?ius, Member of the Vilnius City Council (Lithuania) and co-representative of the applicants, said:  “The European Court of Human Rights has concluded today that the Lithuanian authorities systematically fail in effectivelly responding to homophobic hate speech online. I am positive that this judgment will become a powerful entry point to start conversation with Lithuanian police, prosecutors and judges about the measures that we must take in order to encourage reporting and effectivelly tackle anti-LGBT crimes..“

According to Vladimir Simonko, Executive Director of Lithuanian Gay League (LGL), this case raises questions of considerable public importance about the nature and scope of the positive obligation of Member States under the European Convention of Human Rights (ECHR) to protect individuals from homophobic hate speech and incitement to violence.

“It is appalling that the Lithuanian Government were challenging the very fact that a civil-society organisation might also have a legitimate interest in the outcome of the applicants’ case, and thus questioning the fundamental role of non-governmental organisations in performing a “public watchdog” function in a pluralist, democratic society,” said Simonko. 

According to Livio Zilli, Senior Legal Adviser & UN Representative  with the International Commission of Jurists (ICJ): “Among other things, the ICJ welcomes the Court’s finding in its judgment today that, as a result of their discriminatory attitudes towards the applicants’ sexual orientation, the authorities had denied them an effective domestic remedy in connection with their complaints about a breach of the right to private life under the Convention.”

  • ILGA-Europe’s joint intervention with partners is here.
  • Find out more about ILGA-Europe’s strategic litigation work.

Turkey: Charges against 19 LGBTI+ rights defenders must be dropped

a group of LGBTI rights defenders in Turkey holding rainbow flags

Civil Rights Defenders, International Federation for Human Rights (FIDH), Front Line Defenders and International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) call upon Turkish authorities to drop all charges against 19 LGBTI+ rights defenders due to stand trial on 12 November 2019 in Ankara

On 12 November 2019, 19 LGBTI+ rights defenders will stand trial, charged with “participating in an unlawful assembly” and “resisting despite warning” for   attending the peaceful LGBTI+ Pride March at the Middle East Technical University (METU) campus in Ankara on 10 May 2019.

The 19 (18 students and one faculty member), were among 22 people who were arrested during the Pride March in METU, after police forces entered the university campus at the request of the university administration.  Police dispersed the crowd using pepper spray, tear gas and plastic bullets. All 22 arrested were released later that day.

Speaking on behalf of the four organisations, Björn van Roozendaal, Programmes Director for ILGA-Europe said, “The defenders were practising their right to assembly and standing up for the rights of others in a peaceful manner when the police attacked and arrested them.  No one should be prosecuted for exercising their right to peaceful assembly. All charges against the human rights defenders should be dropped immediately, and this case should be closed.”

The Pride March was organised by METU LGBTI+ Solidarity, a student group established in 1996,  which works to secure gender equality, eradicate on-campus LGBTI+ phobia, and ensure that the university is a safe space for LGBTI+ people. The group has been organising Pride Marches on the campus every May since 2011.

On 6 May 2019, shortly before the METU Pride March, the university Rector, Mustafa Ver?an Kök, sent an email to all students, graduates, and faculty members, informing them that the Rectorate was prohibiting the event.  He referred to the ban on LGBTI+ events in Ankara, issued by the Ankara Governor’s office on 3 October 2018 and warned that the Rectorate would ask the Ankara Police to intervene if the event took place. When the Pride March commenced, the police violently dispersed students.

Twenty-one students and one professor were taken into police custody.  Shortly afterwards, the university opened administrative investigations against the students who participated in the Pride March. On 5 August 2019, 19 of the 22 arrested LGBTI+ rights defenders were notified that a criminal case had been opened against them, related to the charges of “participating in an unlawful assembly” and “resisting despite warning”  under Article 2911 of Turkish Penal Court.

In November 2017, using the state of emergency powers, a blanket indefinite ban on public events focused on LGBTI+ rights was issued in Ankara. Despite the ending of emergency rule in July 2018, the Ankara Governor’s office did not lift the ban. On the contrary, on 3 October 2018, the Governor’s office informed law enforcement and other relevant authorities of a new ban, without giving any indication of when it would end.

On 19 April 2019, the Ankara Administrative Appeals Court lifted the ban introduced under the state of emergency, on the grounds that it was unlawful and restricted rights and freedoms in unconditional, vague, and disproportionate ways.

The four organisations said “We would like to remind the authorities that the state’s duty is to take security measures to protect peaceful assemblies and events, not ban them. The government should carry out a thorough and impartial investigation into the excessive use of force during the event, instead of prosecuting the human rights defenders. We reiterate our call to the authorities to drop all charges against the 19 defenders and ensure that all human rights defenders in Turkey are able to carry out their legitimate human rights activities without fear of reprisals and free of all restrictions.”