We welcome today’s judgment from the European Court of Human Rights in the case of Association ACCEPT and Others v. Romania. 

The Court found a violation of Article 8 (right to private and family life) and 11 (freedom of association and assembly) together with Article 14 (prohibition of discrimination).  

The case concerned a protest against a screening of a film involving a same-sex family during the applicant association’s LGBT History Month in February 2013. The protesters were carrying far-right paraphernalia and cinemagoers had been verbally abused.

Court found that the authorities had failed to offer adequate protection in respect of the individual applicants’ dignity and private life, and to effectively investigate the real nature of the homophobic abuse directed against them.  Importantly the Court pointed out that “in doing so, the authorities showed their own bias towards members of the LGBT community”.

• You can download the judgment here. 

Asylum

Submitted jointly by ILGA-Europe, AIRE Centre, ICJ and UKLGIG.

Find here the communicated case.

Recognition of trans parenthood.

Submitted jointly by ILGA-Europe, TGEU, and Bundesverband Trans*.

Find here the communicated case.

The Court made its decision on 4 April 2023, which found that it is within the State’s discretion to list a trans parent on their child’s birth certificate using a “deadname” and sex assigned at birth.

Recognition of same-sex unions.

Submitted jointly by ILGA-Europe, FIDH, NELFA and ECSOL. 

Find here the communicated case.

Recognition of non-binary identities.

Submitted jointly by ILGA-Europe, OII Europe, and C.I.A. (Collectif intersexes et allié-e-s).

Find here the communicated case.

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.”

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• Find out more about the case and the Associazione Avvocatura per i diritti LGBTI – Rete Lenford.
• Find out more about our strategic litigation work.
• Find out more about the judgement and read the full judgement here.

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

The Court of Justice of the European Union has just made a landmark decision, saying that a lawyer who declared that he would never hire a “homosexual” person in his law firm was discriminating under an EU employment directive. Meet activist Emiliano Ganzarolli, from the powerhouse group of LGBT lawyers who took the case.

Emiliano Ganzarolli is a member of 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.

The association has notably been active in the fight for marriage equality, and the implementation of a civil partnership framework for same-sex couples.

“In 2007 there was nothing in the Italian law concerning either civil unions or marriage and the association itself was actually founded because of this lack in our system,” says Emiliano in an interview filmed for the Voices of ILGA-Europe project last October. “It brought together lawyers and activists from the civil society to bring cases up to the constitutional level. In 2010 the constitutional court was asked to deliver a judgement on the possibility or not to have equal marriage in Italy. The case was not successful, we still don’t have equal marriage in Italy, but that was the beginning of many battles the association took.”

Recently, the Association was involved with the first case in Italy involving discrimination in an employment context, after an attorney declared during a radio interview that he would never hire a homosexual person in his law firm.

The case was brought in front of a tribunal in the Court of Appeal by Rete Lenford. “It was successful in the first instance, and the second, and then the case was appealed in front of the Supreme Court in Italy,” Emiliano explains. “The Supreme Court referred the case to the Court of Justice of the European Union (CJEU).

“When we received the communication that the Supreme Court had referred the case to the CJEU, it was the immediate reasoning to involve an umbrella association, somebody able to actually properly talk at the same level with the European institutions. So it came naturally to involve ILGA-Europe in this. ILGA-Europe’s litigation department has been extremely supportive, especially putting us in contact with the other EU countries.”

Two distinct questions arose before the Italian Supreme Court: Firstly, does legislation prohibiting discrimination in access to employment also cover a general statement made on the radio to the effect that the interviewee would not recruit homosexuals to his law firm? Secondly, in the absence of an identifiable victim, is it possible for Rete Lenford to seek to enforce the prohibition of discrimination in employment and occupation, including through the award of damages?

In a judgement delivered on 23 April 2020, the CJEU decided on behalf of Rete Lenford. Importantly the Court noted that the lawyer’s statements may fall within the ambit of the European Union anti-discrimination directive, even if no recruitment procedure had been opened or planned at the time when the statements were made.

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.”

As part of our advocacy to ensure that EU law is applied without discrimination and that CJEU judgments recognising LGBTI rights, like the Coman judgement, are properly implemented in all EU Member States, ILGA-Europe is holding a webinar on bringing cases to the European Commission.

Bringing complaints before the European Commission serves as a basis for raising awareness on the obstacles faced by LGBTI people, and for initiating a formal infringement procedure against a Member State to help ensure its compliance with EU law.

This webinar is for all LGBTI organisations and activists in the European Union. Our speakers and experts will share their experience of bringing cases to the European Commission on discriminatory application of EU law and failure of implementation of CJEU judgments, as well as provide guidance on EU law aspects that can be challenged through the procedure.

The webinar will take place on Thursday, 30 April 2020 between 10:00 and 11:30 CEST.

Moderated by Arpi Avetisyan, Senior Litigation Officer at ILGA-Europe, the panel will host:

• Teodora Ion-Rotaru – Executive Director of ACCEPT Romania,
• Professor Alina Tryfonidou – Professor of Law at the University of Reading, and
• Etienne Deshoulières – Deshoulières Avocats Associés Law Firm.

Contributions from European Commission experts:

• Maria Vilar Badia, Legislative Officer at DG JUST of the European Commission,
• Bénédicte Marquet, Legal and Policy officer at DG JUST of the European Commission, Unit – Union citizenship rights and free movement.

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• To attend the webinar, register here in advance.
• If you want to know more about the Coman judgement and the complaints procedure please consult ILGA-Europe’s blogpost or contact ILGA-Europe Senior Litigation Officer Arpi Avetisyan arpi@ilga-europe.org.
• Read more about our work on strategic litigation.

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About the speakers:

Teodora Roseti-Ion-Rotaru, Executive Director of ACCEPT Romania

Teodora Roseti-Ion-Rotaru is the Executive Director of ACCEPT Association. She joined the organisation in 2013, as a volunteer. Throughout her time at ACCEPT, Teodora coordinated programs, the relationship with the media, partners and the community, and led notorious public campaigns, chiefly the national communication regarding the Coman case (2016-2018) and the boycott campaign regarding the national referendum to ban same sex marriage in the Romanian Constitution (2018). A graduate of the European Administrative Affairs program at the College of Europe (Bruges), where she specialized in interest representation and Europeanization, Teodora is a convinced federalist and fights illiberalism and shallow Europeanization in eastern accession member states through activism for democracy and human rights.

Professor Alina Tryfonidou, Professor of Law at the University of Reading

Professor Alina Tryfonidou joined the University of Reading as a Lecturer in September 2011, after being a Lecturer in Law at the University of Leicester from 2007 to 2011. She taught European Law as a Visiting Tutor (2005-2007 and 2010-2011) at King’s College London. Professor Tryfonidou obtained her LLB (2001), LLM (2002) and PhD (2008) from King’s College London and is an Associate of King’s College (AKC) since 2008. She is a non-practising member of the Cyprus Bar since 2003, a Fellow of the Centre of European Law at King’s College London since 2007, and a Fellow of the Higher Education Academy (FHEA) since 2016. In 2004, Professor Tryfonidou completed a traineeship at the European Commission in Brussels and in 2010-2011 she was an Institute of Advanced Legal Studies (IALS) Visiting Fellow in London. Professor Tryfonidou’s research interests focus on EU free movement law and the protection of LGBT+ rights.

Etienne Deshoulières, Deshoulières Avocats Associés Law Firm

Founder of the Deshoulières Avocats Associés Law Firm, also Research Associate at the Law Research Institute of University Panthéon-Sorbonne Paris I and Professor at the University Panthéon-Assas Paris II. He is currently involved in 60 LGBT cases before the French and European tribunals.

As part of our ‘Protect, Adapt and Rally’ package, please find below an overview of leading pro bono service providers and clearing houses that are offering their services to LGBTI organisations in finding solutions to the consequences of COVID 19 at the organisational level and other areas of LGBTI rights affected by the pandemic. Please consult the list below on Pro bono legal resources for guidance and support with changed organisational matters and associated impact of COVID 19 to find best catering for your needs.

Hate speech and violence against LGBTI people.

(Apps nos. 71367/12 and 72961/12), 15 October 2019

Find here the communicated case.

• The applicant was a well-known member of the LGBT community in Armenia and co-owner a club where members of the LGBT community would meet to socialise.  She had attended Istanbul Pride in 2011 and given interviews to some media outlets criticising Armenia’s human rights record. As a result she became the subject of an online hate campaign because of her sexual orientation. Shortly thereafter several people organised an arson attack on the club co-owned by her. She faced threats and harassment and was subjected to hate speech by high profile government representatives and members of the parliament. Given lack of anti-discrimination legislation in Armenia, applicant’s sexual orientation was not considered as a motive for the acts and there was no effective investigation.
• ILGA-Europe together with the AIRE Centre, the ICJ and Human Rights Watch submitted the following:
  • The identity of victim of violence as an LGBT person should be taken into account in the assessment of Article 3 violations.  Indeed the discrimination directed towards LGBT persons may indicate a particular motive and intent that may meet the threshold of Article 3 ECHR should be taken into account in the assessment of Article 3 violations. Indeed, discriminatory use of violence against a vulnerable group is an important factor and the ECtHR has acknowledged that LGBTI minorities may constitute vulnerable groups.
  • Contracting States have a positive obligation under Articles 3 and 8 of the ECHR to protect from and investigate allegations of violence with discriminatory elements. According to the ECtHR, the State has a heightened burden of protection when there is prior knowledge of public hostility towards the LGBT community. These obligations are also widely recognized by current international and regional standards.
  • Armenian legislation does not afford protection against explicitly homophobic or transphobic violence or threats or other incitement to such violence. In practice, LGBT persons and affiliates in Armenia continuously struggle to enjoy equality, both at personal and societal levels.
  • It is of particular importance :
    • To protect persons from violence, and put in place necessary legislative, policy and other measures for unmasking any discriminatory motive or intent present in the acts of violence.
    • To ensure that a comprehensive anti-discrimination legislation is in place, and sexual orientation and gender identity are explicitly recognized as protected grounds for discrimination. 

Legal gender recognition

(Apps. nos. 53568/18 and 54741/18), 25 June 2019

Find here the communicated case.

• The case concerns a transgender man who gave birth and applied to be registered as father to his child. The German authorities refused his request and registered him instead as mother under his former female forename.
• ILGA-Europe together with TGEU submitted the following:
  • Restrictive LGR procedures hinder the ability of trans people to enjoy their family life. The law is often not adapted to their situations, as trans parents are frequently forced to disclose their trans identity because of a mismatch between public records and the children’s birth certificate.
  • In 2018, the Parliamentary Assembly adopted a resolution asking States to provide for transgender parents’ gender identity to be correctly recorded on their children’s birth certificates. The Yogyakarta Principles specify that “States shall issue birth certificates for children upon birth that reflect the self-defined gender identity of the parents.”
  • In Germany, the state de facto dictates a single possible parenting structure, enforces gender norms (a pregnant person is always a mother) and erases the lived reality of other possibilities. Consequently, birth certificates are often contradictory to the reality, forcing trans parents to reveal their trans identity, thus leading to frequent discriminatory and degrading treatments against trans parents and their children in their daily life.
• The Court made its decision on 4 April 2023, which found that it is within the State’s discretion to list a trans parent on their child’s birth certificate using a “deadname” and sex assigned at birth.

State violence against the LGBTI community.

(Application no. 28834/19), 16 April 2020

Find here the communicated case.

See also:

In a very recent judgement in the case of Azul Rojas Marin v. Peru, the Inter-American Court of Human Rights (“IACtHR”) classified as torture the detention and rape of the victim – who identified as a gay man at the time of the events– by police staff, and noted the violence was motivated purely by the victim’s sexual orientation, and therefore could be classified as a “hate crime”. The IACtHR concluded that such discriminatory torture not only breached the victim’s rights, “but it was also a message to all LGBTI people, as a threat to the freedom and dignity of this entire social group”.

See here full judgement, in Spanish.

ILGA-Europe had made an amicus curia submission in this case highlighting European Court’s approach on the issue of discriminatory torture and access to effective remedies.

Do you know when EU citizens started to have the right to free movement across the European Union (EU), i.e. the right to live and work in any Member States they choose?

Most people might answer that this right always came automatically when a country joined the EU; others might answer that this was in 1992, with the Treaty of Maastricht. And some experts might even know that the right to freedom of movement was later further defined in legislation, namely the Citizens Directive (2004/38). This Directive sets out the conditions under which nationals of one EU Member State may reside and work in other EU Member States, as well as family reunification rights of migrant Union citizens and their family members, including spouses.

Nevertheless, many citizens, namely same-sex couples and their families, cannot take for granted that they can fully enjoy their freedom of movement. As some Member States still do not recognise same-sex partnerships and marriages, they often continue to refuse same-sex partners the right to reside and work there. 

In June 2018, the Court of Justice of the EU (CJEU) ruled against such discrimination of same-sex couples, and defined the meaning of the term ‘spouse’ in the context of freedom of movement as “gender-neutral [and inclusive of] the same-sex spouse of an EU citizen”. With this judgment, the CJEU finally put an end to legal ambiguity whether the term spouse in the Citizens Directive covers same-sex spouses of EU nationals, including when granting residence permits.

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The Coman Case

This was the case of Adrian Coman, a Romanian citizen who married his husband (a US citizen) in Belgium while residing there. Upon subsequently moving back to Romania, the couple found that Romania did not recognise their marriage, and a residence permit for the American spouse was denied by authorities. A legal challenge by Coman made its way through the Romanian courts until, in 2016, the CJEU was asked by the Romanian Constitutional Court to interpret the word ‘spouse’ in the context of EU law on freedom of movement.

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As a result, all EU Member States are now obliged to treat the same-sex spouse of an EU citizen just as they would a different-sex spouse – irrespective of whether or not the Member State provides in its own laws possibilities for same-sex marriage or civil partnership. It means that when an EU citizen and a non-EU citizen get married in the EU and genuinely reside for at least 3 months in the Member State where the marriage took place, they enjoy the right to move freely as spouses from one EU country to another, whether or not they are a same-sex couple. They cannot legally be prevented from doing so.

So with this judgment, we have a basis to ensure that same-sex couples do not have to worry anymore when moving from one Member State to another.

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But why does this matter?

Today, there are still 6 Member States in the EU that do not recognise either same-sex partnerships or marriages. In the past, these Member States also claimed that they do not need to recognise these unions as part of the freedom of movement. With the Coman judgment, it is now clear that they are obliged to amend their national laws in such a way as to provide a legal framework for ensuring that the CJEU’s ruling is properly implemented. In other words, they must ensure that same-sex couples are guaranteed the same right of residence as different-sex couples.

Who are these 6 Member States? Bulgaria, Latvia, Lithuania, Poland, Romania and Slovakia.

Unfortunately some Member States may not immediately implement the judgment properly, despite national courts being obliged to follow the Coman judgment. This obligation is because EU law has supremacy over national laws, without exception.  And so we need to make sure that we hold any non-compliant Member States accountable.

The European Commission is the institution that ensures this accountability. As the politically independent executive arm of the EU, the Commission has the power to take legal action against Member States, and it is their job to ensure that EU law is properly implemented.

Okay, but what can we do as individuals or civil society organisations?

We can support the European Commission in this by raising any violation of the freedom of movement for same-sex couples by filing an official complaint – which you can do in your preferred EU language.

If your complaint is found to be valid, the European Commission will launch a formal infringement procedure against the Member State. To know more, check out this nifty overview of how such a complaint procedure unfolds!

Sometimes things aren’t so clear… If you are uncertain about whether or not a law has actually been breached, you can get help and advice informally from enquiry services provided by the EU – also in any of the 24 EU languages.

But the easiest thing is to reach out to us at ILGA-Europe should you think you have a complaint to report. The Coman judgment is historical because of its great significance and the incredible impact it has on so many lives, both present and future. We’re all in this together, to make sure that the progressiveness of the court is felt in the everyday lives of same-sex couples across the EU.

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Read also:

• ILGA-Europe’s Q&A about the Coman case.
• Arpi Avetisyan’s essay ‘European Law Developments on SOGIE’ from International Lesbian, Gay, Bisexual, Trans and Intersex Association: Lucas Ramon Mendos, State-Sponsored Homophobia 2019 (Geneva; ILGA, March 2019).
• Research report ‘An analysis of the ECJ ruling in Case c-673/16 Coman’ prepared by Professor Alina Tryfonidou (University of Reading) for NELFA, the Network of European LGBTIQ* Families Associations.
• FRA Report: ‘Making EU citizens’ rights a reality: national courts enforcing freedom of movement and related rights’​

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If you live in one of the EU Member States that does not recognise same-sex partnerships or marriages, you can also contact in your own language:

• Bulgaria: Bulgarian Helsinki Committee – bhc@bghelsinki.org
• Latvia: Mozaika – mozaika@mozaika.lv
• Lithuania: Nacionalinė LGBT* teisių gynimo asociacija – office@gay.lt / +370 5 2610314
• Poland: Lambda Warszawa – warszawa@lambdawarszawa.org
• Romania: Asociata Accept – teodora@acceptromania.ro / +40 723 50 31 72
• Slovakia: inPoradna – online contact form / +421 948 144 313

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Join our webinar on bringing cases before the European Commission – Thursday, 30 April 2020

Bringing complaints before the European Commission serves as a basis for raising awareness on the obstacles faced by LGBTI people, and for initiating a formal infringement procedure against a Member State to help ensure its compliance with EU law.

This webinar is for all LGBTI organisations and activists in the European Union. Our speakers and experts will share their experience of bringing cases to the European Commission on discriminatory application of EU law and failure of implementation of CJEU judgments, as well as provide guidance on EU law aspects that can be challenged through the procedure.

The webinar will take place on Thursday, 30 April 2020 between 10:00 and 11:30 CEST.

Speakers will include:

• Teodora Ion-Rotaru from the Romanian association ACCEPT,
• Professor Alina Tryfonidou from the University of Reading, and
• Etienne Deshoulières

With moderation by Arpi Avetisyan, Senior Litigation Officer at ILGA-Europe.

Gender reassignment treatment required prior to LGR

(Applications nos. 57864/17 and 79087/17), 14 mars 2019

Find here the communicated case.

Communicated case: 

• The present case concerns the Georgian authorities’ refusal to recognise the applicants’ gender identity unless they agreed to undergo gender reassignment treatment.
• In their joint submission ILGA-Europe and TGEU submitted :
  • Gender identity is a basic attribute of self-determination, which is protected under the right to respect for private life (Article 8 ECHR). As acknowledged by the ECtHR, lack of accurate identification causes suffering. The right to gender self-determination has been affirmed by the Parliamentary Assembly and the Commissioner for Human Rights; and a clear European consensus to regulate LGR is emerging in Council of Europe member States.
  • The diagnosis requirement is based on the pre-conceived idea that trans identities are inherently disordered. Pathologisation subverts an essential aspect of human personality and leads to serious human rights violations. In A.P, Garçon and Nicot v. France, the Court ruled that the requirement to undergo sterilisation or treatment involving a very high probability of sterility as a precondition to LGR was in breach of the right to respect for private life under Article 8 and engaged Article 3. Other recent regional developments suggest that the scope of the discretion available to States in the area of LGR is becoming narrower.
  • Gender identity emerges as a protected ground under international anti-discrimination law. Research consistently indicates that trans people suffer from disproportionately high levels of violence, harassment and discrimination in all fields of life. For this reason they should qualify for heightened protection under Article 14 ECHR. Gender identity is protected under Article 14, although the language used by the Court to date has been inconsistent.

Arbitrary refoulement

(Application no. 31428/18), 28 February 2019

Find here the communicated case.

Communicated case: 

• The applicant in this case complained that he that he would facea real risk of serious and irreversible harm under Article 3 of the Convention if he were to return to Bangladesh as a gay/bisexual man.
• ILGA-Europe together with the ICJ (International Commission of Jurists) and the UK Lesbian and Gay Immigration Group (UKLGIG) submitted the following:
  • There is a consistent approach in the case-law relating to Bangladesh as a country where imputation, suspicion, discovery or identification of someone’s sexual orientation or identity as LGBT is likely to give rise to a real risk of serious harm.
  • According to the ECtHR, treatment which is grounded upon a predisposed bias on the part of a heterosexual majority against a homosexual minority may, in principle, fall within the scope of Article 3. Under refugee law, prosecution may amount to persecution if the criminal law is enforced or punishment meted out in a disproportionate or discriminatory manner.
  • Concealment constitutes evidence of the objective well-foundedness of a subjective fear of persecution. Requiring coerced concealment of someone’s same-sex sexual orientation – as a way, purportedly, to mitigate the real risk of their being exposed to Article 3 prohibited treatment – constitutes pain and suffering amounting to proscribed treatment under Article 3 even if temporary. Mental harm resulting from fear of exposure to physical harm has been found by the ECtHR to constitute cruel, inhuman and degrading treatment. According to refugee law, in some cases psychological harm is persecutory.
  • Enforcing removals on the basis that the individuals concerned would be expected to conceal their sexual orientation would constitute arbitrary refoulement and thus violate Article 3 ECHR.

Violence against LGBTI people

(Nos. 21029/13, 40620/14, 23914/15, 26806/15, 32617/16 and 49542/16), 17 September 2018

Find here the communicated case.

• The applications concern violence caused by private individuals and/or the danger of repeated such violence, as well as the alleged insufficiency of investigations and/or impunity of the perpetrators by the Moldavian authorities.
• ILGA-Europe together with the Equal Rights Trust submitted that:
  • It is critical that the potential application of Article 14 be given specific consideration wherever there is a prima facie case that violence is motivated by bias against LGBT+ persons. Bias-motivated violence impacts disproportionately and differently on members of minority groups, including LGBT+ persons. It thus demands a response which recognises its discriminatory causes and consequences.
  • Positive obligations under Articles 14 and 3 encompass duties of prevention, protection, investigation and prosecution. Violations of Article 14 taken with Article 3 may be found where particular judicial or prosecutorial practices have a disproportionate impact on individuals of a vulnerable group and fail to take into account the discriminatory nature of the violence.

Incitement to discrimination/Hate speech

(Application no. 59180/15), 20 July 2018

Find here the communicated case.

• The applications involve newspaper publications containing discriminatory language and incitement to discrimination against the applicants due to their association with the LGBT community and/or their perceived sexual orientation. The Armenian courts ignored the allegations of discrimination based on actual or perceived sexual orientation and gender identity.
• ILGA-Europe together with TGEU submitted the following:
  • The ECtHR and other authoritative bodies in Europe and beyond have recognised that homophobic and transphobic statements constitute hate speech. Besides, the Court held that homophobic and transphobic speech may violate Articles 8 and 14 ECHR due to its humiliating and stigmatising effect.
  • Contracting States have a positive obligation to protect against and investigate hate speech. This obligation is heightened when hate speech is motivated by discrimination against one’s actual or perceived sexual orientation or gender identity. The margin of appreciation allowed to the State under Article 8 may be restricted because sexual orientation and gender identity are important facets of an individual’s private life and can be used as a marker of group identity. In addition, acknowledging a heightened level of protection does not contravene freedom of expression, which is not an absolute right and can be restricted according to Article 10(2).
  • LGBT persons and affiliates in Armenia are prevented from seeking redress against hate/discriminatory speech, and continuously struggle to enjoy equality, both at personal and societal levels due to lack of of adequate legal framework and the hostile attitudes against the LGBT community.

Legal gender recognition 

(Applications no. 2145/16 and 20607/16), 26 June 2018

Find here the communicated case.

• The present cases concern two trans men who claim that their right to privacy and right to found a family have been violated. The legal framework on legal gender recognition in Romania remains uncertain, subjecting trans people to lengthy judicial procedures and pathologizing and invasive medical requirements when in their quest for recognition of their gender identity.
• The comments delivered by TGEU and ILGA-Europe on 26 June 2018 provide the Court with additional information on: 
  • developments on legal gender recognition in the wider international context, namely a steady gaining of ground for the recognition of trans people’s human rights and a move away from pathologisation of trans identities.
  • The interveners discuss the European legal landscape showing that medicalised and pathologizing legal gender recognition procedures where the judiciary plays a substantial role are not in line with European human rights and equality law standards.

Hate speech

(Application No. 39954/09), 11 April 2018

Find here the communicated case.

• The applications concern two interviews with public officials published in the national press, during which heinous statements against homosexuals were made. The Russian authorities refused to open criminal proceedings, finding that homosexuals were not a social group and that the applicants were not personally targeted by the contested statement.
• ILGA-Europe submitted the following:
  • There is widespread recognition within Europe and beyond that homophobic and transphobic statements amount to hate speech. The ECtHR and other human rights bodies have highlighted the particular responsibility of politicians to avoid disseminating words likely to foster intolerance.
  • Homophobic and transphobic statements have a humiliating and stigmatising effect. The ECtHR has considered that violence perpetrated with homophobic and transphobic overtones was capable of meeting the threshold required for a violation of Article 3. Homophobic and transphobic statements can also have extremely serious repercussions for the enjoyment of other rights and freedoms, notably, the right to respect for private and family life and the prohibition of discrimination under Articles 8 and 14 of the Convention.
  • International and European law and standards support the need for action against particular uses of hate speech through the application of administrative, civil and criminal law.

Restricted access to LGR

(Applications nos. 36253/13 and 52516/13), 19 March 2018

Find here the communicated case.

• The applicants are Russian transgender men. Due to the absence of a transparent and accessible procedure for changing their names and gender markers, the Russian authorities refused to recognise their gender identity unless they agreed to undergo various medical procedures.
• ILGA-Europe together with TGEU, ILGA and the Human Rights Centre “Memorial” submitted the following:
  • The ECtHR has described gender identity as “a fundamental aspect of the right to respect for private life” and as “one of the most basic essentials of self-determination,” linking it to a “right to sexual self-determination”.
  • The ECtHR held in A.P, Garçon and Nicot v. France that the requirement to undergo sterilisation or treatment involving a very high probability of sterility in as a precondition to LGR was in breach of the right to respect for private life under Article 8. Several United Nations Treaty Bodies and Special Procedures consider that LGR should not be based on gender reassignment surgery.
  • In Russia, trans persons still face considerable difficulties in access to LGR because of the lack of clarity in Russian legislation.
  • Gender identity emerges as a protected ground under international anti-discrimination law. UN Treaty Bodies consistently mention gender identity among the protected characteristics of anti-discrimination clauses in Universal Treaties. Research consistently indicates that trans people suffer from disproportionately high levels of violence, harassment and discrimination in all fields of life. For this reason they should qualify for heightened protection under Article 14 of the Convention. Gender identity is protected under Article 14, although the language used by the Court to date has been inconsistent. This area of jurisprudence would benefit from some clarity.

Discrimination on the ground of gender identity

(Application no. 49373/17), 13 February 2018

Find here the communicated case.

• The applicant was taken out of a bar allegedly on account of her appearance and gender identity. Subsequently, she lodged a criminal complaint against the owner of the bar. The Turkish courts considered it had not been proven that the accused’s act had been based on discriminatory motives.
• ILGA-Europe together with TGEU and  Kaos Gay Lesbian Cultural Research and Solidarity Association (Kaos GL) submitted the following:
  • According to Fundamental Rights Agency survey from 2015, discrimination on the grounds of gender identity was regarded as one of the most widespread forms of discrimination in Europe. It affects notably access to services, employment or health.
  • Gender identity emerges as a protected ground under international anti-discrimination law. UN Treaty Bodies and regional human rights systems consistently mention gender identity among the protected characteristics of anti-discrimination clauses. The same approach is followed through legislation or court practice in numerous European and other democratic societies. Gender identity is protected under Article 14, although the language used by the Court to date has been inconsistent. This area of jurisprudence would benefit from some clarity.
  • In Turkish law, discrimination in different fields is prohibited in different regulations and seen as a violation of rights. However, ‘sexual orientation’ and ‘gender identity’ are not explicitly protected in anti-discrimination law, leaving LGBTI people outside the scope of relevant legislation.