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Human Rights Comment
The long march against homophobia and transphobia

Summer is the time of Pride marches. The numerous marches in Europe are a testament to the ground-breaking progress toward acceptance of the equal rights of lesbians, gay, bisexual, transgender and intersex (LGBTI) persons. In the vast majority of European countries, and elsewhere in the world, crowds have been rallying to celebrate - or claim - recognition and increased respect for the human rights of persons who do not fit the prevailing paradigms on sexual orientation and gender identity, and to show solidarity with them.

However, obstacles remain on the road ahead. In parallel with the increased visibility and equality wins for LGBTI persons, there has been a backlash in recent years. Across Europe, we still see discrimination, intimidation and persecution.

While LGBTI persons enjoy greater protection in many European countries than ever before, they still struggle to enjoy basic freedoms and rights in environments where homophobia and transphobia are widespread. The situation is exacerbated when intolerant attitudes among the population seem to receive official sanction. The human rights compliant approach would be to enact explicit prohibitions against discrimination on grounds of sexual orientation and gender identity and to take effective action to identify, investigate and punish hate crimes and hate speech. Instead, we have seen some cases where laws actually restrict the rights to freedom of expression and assembly of LGBT persons.

In the June 2017 Bayev and Others v. Russia judgment concerning the Russian law prohibiting “propaganda of homosexuality”, the European Court of Human Rights (ECtHR) found that “by adopting such laws, the authorities reinforce stigma and prejudice and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society”.

Disturbing reports of persecution

This year some very disturbing reports surfaced about persecution of gay men in Chechnya in the Russian Federation, a place where impunity for serious human rights violations such as enforced disappearances and torture is a long-standing problem. According to NGOs and the Russian newspaper Novaya Gazeta, a number of gay men (or men perceived to be gay) were arrested or abducted and detained in the Chechen Republic between February and April 2017. The persons concerned were reportedly held in unofficial places of detention and allegedly subjected to severe ill-treatment and humiliation. As soon as I learned about the foregoing reports, I established contact with the Russian Federal Ombudsman and addressed a letter to the Head of the Russian Federal Investigative Committee on 5 April 2017, requesting information about steps taken to investigate both the alleged crimes and the statements made by Chechen public figures that may have constituted incitement to hatred, as well as to protect victims who may come forward.

Subsequently, the Russian Federal Ombudsman raised the matter with the Russian President. It is crucial that decisive and effective action be taken to ensure that the persecution stops and that those responsible for it are investigated, prosecuted and punished. Failing to do so will only prolong the deplorable patterns of impunity in this region.

Intolerance on the rise

Even in countries where the recognition of LGBTI human rights has made considerable progress in recent years, homophobia and transphobia persist. Experience shows that the hatred can be easily revived, sometimes by unscrupulous populist politicians who employ toxic discourse and scapegoat minorities for political gain.

Ethnic minorities and foreign nationals were not the only targets of the post-Brexit referendum spate of violent attacks in the United Kingdom (UK); there were also reports of a dramatic rise in homophobic and transphobic hate crimes committed by private individuals in the summer of 2016. In its 2017 report on homophobia in France, the NGO “SOS homophobie” observed a correlation between advances in the recognition of LGBTI rights and increases in hate crimes and hate speech. The organisation recorded a spike in homophobic incidents in 2013 after a national debate on same-sex marriage, and a 76% increase in transphobic incidents in 2016 after the adoption of the law on legal gender recognition. In Greece, I recently urged the authorities to take swift action against an increase in homophobic hate crimes, noting with concern that some incidents involved law enforcement agents.

It is worth noting that transgender persons continue to pay a particularly high price, with over 110 transgender persons murdered in Europe since 2009, according to the Transgender Europe Murder Monitoring Project, including 43 in Turkey and 30 in Italy. The 2016 murder of 23-year old trans activist Hande Kader in Turkey, whose body was found mutilated and burned, was a sad reminder that violence motivated by homophobia and transphobia is often particularly brutal and cruel. Violent acts have included deep knife cuts, anal rape, genital mutilation, as well as stoning, and burning.

Urgent action is needed to counter this alarming trend and to overcome the hatred against LGBT persons that still plagues our societies.

The starting point: LGBTI rights are human rights

Many people still react aggressively to people whose sexuality and gender identity are perceived as a challenge to traditional norms. As Commissioner for Human Rights, I must firmly restate that neither cultural, traditional nor religious values, nor the dominant views of the majority, can ever justify violent crimes or discrimination against LGBTI persons.

LGBTI persons do not ask for special or additional rights – but simply to enjoy the same human rights as anybody else. Numerous UN Treaty Bodies as well as the ECtHR have clearly stated that the major international and European human rights treaties apply to all human beings equally and without discrimination based on any grounds, including those of sexual orientation and gender identity. In the Identoba and Others v. Georgia case, the ECtHR established that acts of violence that had been committed against LGBTI persons during a gay pride constituted a violation of the right not to be subjected to torture or inhumane and degrading treatment (Article 3 of the European Convention on Human Rights) and found that states parties to the Convention have an obligation to protect LGBTI persons and to effectively investigate and prosecute those responsible for these acts. In the Vejdeland and Others v. Sweden case, the Court made clear that homophobic speech cannot be protected as free speech.

A comprehensive approach for tackling homophobia

First, states should ensure they have a robust law enforcement framework to eliminate discrimination and combat violence and hate speech motivated by bias against a person’s sexual orientation and gender identity. In 2016, about half of the member countries of the Council of Europe had criminalised acts of violence motivated by the victims’ sexual orientation. This is a step in the right direction. All member countries should adopt laws that clearly prohibit discrimination based on sexual orientation and gender identity in all areas of life, as well as laws that criminalise offences committed on the basis of homophobic and transphobic hatred, and make such motivation an aggravating circumstance.

Next, it is critical that national authorities effectively implement these laws. In the Identoba and Others v. Georgia case, the ECtHR found that states have the “duty to take all reasonable steps to unmask possible discriminatory motives” when investigating violence against LGBTI persons. This can be difficult to do and several measures are required. Member countries should provide specific training to law enforcement and members of the judiciary on dealing with homophobic/transphobic hate crimes and hate speech. They should also take steps to ensure that victims feel sufficiently safe and comfortable to report crimes. In this regard, I find it interesting that some countries have established special contact units in the police to improve relationships with the LGBTI community. Holding perpetrators of hate crimes to account sends a strong signal that the authorities will not tolerate hate, violence and discrimination against LGBTI persons.

Effective laws and criminal justice systems are essential, but not enough. Member countries should proactively work to bring about broader changes in societal attitudes towards LGBTI persons. This requires outreach campaigns and education in schools to promote understanding and respect of the human rights of LGBTI persons. Member states’ authorities should demonstrate positive political leadership on this issue. Some states have adopted comprehensive action plans to advance LGBT rights. Building alliances involving civil society, governments, national human rights institutions, faith-based communities and the private sector can help build more inclusive societies where LGBTI persons can live freely, safely and be treated equally. Also, equality bodies can play an important role against discrimination based on sexual orientation and gender identity by registering and reviewing complaints, providing legal advice to complainants, commissioning research and advising on policies.

As long as LGBTI persons suffer persecution and gross human rights violations in some countries because of their sexual orientation and gender identity, member states should ensure that they are equipped to grant asylum on these grounds, as recommended by the UN High Commissioner for Refugees. In the context of the reports of persecution in Chechnya, I have called on member countries to provide visas and refugee status to bring survivors and threatened persons to safety.

We have seen in the past couple of decades that profound political and social change toward more diverse and accepting societies is possible. According to a 2015 Eurobarometer survey in the European Union, 71% of respondents agreed that LGBT persons should enjoy the same rights as heterosexual people. This is cause for hope and inspiration. Promising practices show us how to get to a place where LGBTI persons can live free from fear and hate. We need to keep moving forward.

Nils Muižnieks

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Strasbourg 31/08/2017
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