Presentation of the 2010 update on Homophobia, Transphobia and Discrimination on Grounds of Sexual Orientation

Roundtable with the European Parliament Intergroup of LGBT Rights, Brussels

Dear Chair,
Dear Members of the European Parliament,
Ladies and Gentlemen,
Colleagues,
 

This report is unique because it contains a very important trend analysis and the Agency will move more to this approach in the future. The European Parliament has been instrumental in pushing for better protection of lesbian, gay, bisexual and transgender persons in the EU. Back in 1989, it was among the first institutions to promote the rights of transsexual persons, with its Resolution of 12 September of
that year.
In 1994, the Parliament then passed a landmark Resolution on equal rights for homosexuals and lesbians in the European Community, which already had regard to the "ridicule, intimidation, discrimination, and violent attacks” that LGBT persons experience in many social spheres in 1994 as well as today.
This Resolution of ‘94 condemned the United Kingdom for its discriminatory provision conceived to avoid the 'propagation of homosexuality'. Today we dare saying that the UK is at the forefront of protecting the rights of LGBT persons in the EU, but a very similar provision to the old UK “Section 28” has resurfaced at the other corner of Europe, in Lithuania.
The new report by the Fundamental Rights Agency on “Homophobia, Transphobia and Discrimination on Grounds of Sexual Orientation”, which we are presenting today, shows exactly this – that the EU Member States are working at very different speeds when it comes to protecting the rights of LGBT persons. And indeed, even within a given Member State, protection for LGBT persons is being strengthened in some areas, and decreased in others. Take Lithuania as an example: there are positive developments, as new legal provisions now include
homophobic or transphobic intent as an aggravating circumstance in criminal law; at the same time, efforts persist to ban the manifestation or alleged ‘promotion’ of same-sex relationships to minors. So what we see within Member States we also see across the EU.

Ladies and gentlemen,

The new report by the Fundamental Rights Agency updates the Agency’s first report on this issue from 2007, and highlights legal developments related to LGBT rights across the European Union.
These legal developments are underpinned by three main issues that affect the LGBT community in Europe. I realise these issues must be well known to you, because, for abig part, they reflect the "ridicule, intimidation, discrimination, and violent attacks” which were cited already in the 1994 Resolution.
In the first part of my speech, I will present some key findings from our new report regarding these three core issues – invisibility, violence, and equal treatment. I will then briefly go into possible reasons for such attitudes, and then take a bit more time to look into ways how these attitudes can be addressed, and changed.

1) So my first point concerns the ongoing exclusion and marginalisation that forces LGBT persons to live “closeted”… in silence and invisibility. Our report finds that the cancellation of LGBT Pride events and marches, often at short notice, and laws banning the so-called ‘promotion’ of homosexuality violate the rights to freedom of assembly and freedom of expression of LGBT persons.
These laws and practices contribute to social isolation and to the perpetuation of negative stereotypes.
There have been improvements in the protection of demonstrators, with Pride marches having actually been held successfully for the first time in Poland, Bulgaria and Romania, but restrictions still remain.
 

2) The second issue concerns EU Member States’ responses to the continuing violence against and criminal victimisation of LGBT persons – and this is particularly true for transgender people – who are often victims of verbal and physical attacks: Currently only 13 EU Member States prohibit incitement to hatred towards LGBT persons; and only 11 EU Member States classify homophobic or transphobic intent as an aggravating circumstance in criminal law.
But, on a positive note, Scotland has become the first European jurisdiction to include protection for transgender persons in criminal law. But again we see a trend with 1 up and 2 up respectively. It will be interesting to see how other Member States will follow that.
 

3) The third issue concerns the implementation of the principle of equal treatment in the Member States. In this regard the developments are largely positive:

• Already 19 EU Member States now prohibit discrimination on grounds of sexual orientation in areas beyond employment, such as access to goods and services or access to healthcare. That is a step forward from 17 in 2008. In 20 (previously it was 18) Member States, the national Equality Bodies which were set up under the Racial Equality Directive now also cover sexual orientation discrimination in their work.
• There is still more work to be done to clarify the situation regarding discrimination on grounds of gender identity, as the legislation and practice of at least 15 Member States remains unclear in this regard, despite EU case law that clearly brings this form of unequal treatment under the notion of sex discrimination.
• Furthermore, the recent initiative in the UK to tackle “combined discrimination” would enable people to bring discrimination claims on a
combination of two protected characteristics. Again a positive initiative.
• On a negative note, however, regarding equal treatment in the context of free movement and family reunification, three Member States – Bulgaria, Estonia, and Romania – have now explicitly amended their legislation to specify that marriage is reserved for opposite-sex couples, denying along with many other EU Member States even more forcefully than before the recognition of same-sex partnerships and marriages concluded abroad. This is an issue of EU citizens not being able to enjoy fully their right to free movement, and be joined by those they love, regardless of their sexual orientation.
• Finally, regarding gender reassignment, difficulties remain in accessing free of charge treatment, in obtaining legal recognition of the gender reassignment, and in receiving equal treatment in most areas of social life – notably again, some Member States have eased the situation to varying degrees.
Ladies and Gentlemen,
II. These mixed developments throughout the EU show that progress is taking place at a different pace and unevenly across Member States; and major differences remain. And why is that? Perhaps not surprisingly, obstacles can largely be attributed to persisting intolerance, stereotyping and negative attitudes towards LGBT people.
 

And this brings me to the second part of my speech.
 

There is often a thin line between discrimination and victimisation, for example, because negative attitudes and stereotypes that underpin discrimination in the first place, can easily lead to acts of intolerance. The FRA organised a roundtable last month in Italy precisely on these issues. Our roundtable brought together NGOs, Equality Bodies, police representatives, policy-makers and delegates from international organisations. Discussions focused on the identification of challenges in addressing homo- and transphobic stereotypes and negative attitudes, and on identifying ways of promoting a culture of respect and diversity, inclusive of LGBT people. Also, the role and influence of specific actors were highlighted.

For instance:
• The media and political and religious leaders have a key role in determining public opinion on LGBT issues. Let’s not underestimate their role in this area.
• The media, political and religious establishments, and educational institutions can often be resilient to change.
• The absence of legislation securing LGBT rights undermines the possibility of challenging the continuity of particular practices, and of directly challenging stereotypes.
• Medical professionals can act as ‘gate keepers’ in granting access to legal gender recognition and trans-related medical treatment.

It is thus a crucial task to challenge the attitudes that underpin denial and inaction.
This can best be tackled through coordinated and systematic approaches, rather than one-off projects or initiatives that do not enjoy continuity.

Ladies and gentlemen,
III. This leads me directly to my third, and last, point this afternoon: How can these negative ‘attitudes’ be addressed – how can they be changed?
I think the answer is twofold: One, equal rights in legislation are essential - and they are being affirmed in certain areas.
 

However, public understanding and acceptance can hardly be addressed solely through legal means. Therefore, secondly, in order to address negative attitudes, we need engagement between governments and politicians on the one hand, and civil society on the other. That is, through a multi-actor approach, through partnerships. And of course, this is particularly important in education, where mindsets are formed; but it is also important in employment, health, and other areas. Awareness-raising activities conducted jointly with the police and law
enforcement authorities more generally, and training, are also essential to improving protection of LGBT rights in Europe.
 

There are several good practice examples of measures taken by governments to engage in this kind of dialogue and promote tolerance and respect towards LGBT persons. In Sweden, for example, a government agency has the responsibility of promoting democracy, tolerance and human rights and assists in ‘combat[ing] the institutionalisation of heterosexuality in society’. In the Netherlands, a comprehensive LGBT Policy Document for the period 2008-2011 (called ‘Simply Gay’) has been adopted, which encompasses 60 different measures, including 24
projects sponsored by various government departments, to improve the social acceptance and empowerment of LGBT citizens.
 

In this regard, the Council of Europe Recommendation on measures to combat discrimination on grounds of sexual orientation or gender identity provides very useful guidance to EU Member States for improving the respect, protection and promotion of LGBT rights. The implementation of this Recommendation will contribute to developing a more common approach to the fulfilment of these
rights.
 

Regarding the ‘multi-actor’ approach, we at the Fundamental Rights Agency very much value our ongoing work with the informal network of LGBT-friendly governments, with the network of local authorities, and with Equinet – the network of Equality Bodies - to name but a few; and we consider it very encouraging that they take upon them a role as duty bearers in the promotion of rights.
 

Next month the Agency will participate in a roundtable organised by Equinet on ‘Making equality legislation work for trans people’. We look very much forward to collaborating with Equinet and with civil society; and we would like to support equality bodies in their networking and in developing good practice, in order to promote equality for, and combating discrimination against, transgender people.

All of these examples demonstrate how the variation between practices in the different Member States can be used to assist Member States in making progress in this area – by sharing good practices.

I am confident that the research undertaken by the Fundamental Rights Agency to date can contribute to speed up change; we need to accelerate this process because what we are talking about are real people with real problems in society, along with the results of the Agency’s forthcoming EU-wide survey on experiences of discrimination and victimisation of LGBT people.
 

Ladies and gentlemen, I conclude:
 

Our report shows substantial variations between the levels of protection offered to LGBT persons in the different Member States. This situation underlines the important need for a horizontal directive, because the variations are far too deep to accept. The core problems around invisibility and violence remain. There are positive developments regarding equal treatment. Overall, transgender people are
in are particularly difficult situation.

Negative attitudes and stereotyping lie behind the reluctance to act in all the areas.
 

But by joining up and working together – researchers, journalists, politicians, teachers, religious leaders, and other actors – we will not have to wait another years until the restrictions that remain on LGBT persons today are lifted, and they can finally live with equal chances and equal rights.

Thank you. I am looking forward to our discussion.