Combating hate crime against LGBTI people across Europe

Michael O’Flaherty
FRA Director, Michael O'Flaherty delivers his speech on combatting hate crime against LGBTI people during an event organised by the Ireland's Presidency of the Committee of Ministers of the Council of Europe. The event took place in Dublin on 27 October 2022.

Dear friends, it is a great pleasure to be with you today and, if you will allow me, I would like to start with a memory.

Some years ago, I was a member of the United Nations Human Rights Committee. It was our task to monitor compliance by States Parties to the International Covenant on Civil and Political Rights. We did this mainly through use of reports and dialogues with State delegations. And I vividly recall one dialogue with one State Party, which was not a Council of Europe Member State.

I raised issues of violence against trans people in police detention. We had received persistent reports of the targeting of trans people in police cells and the killing of some with complete impunity. I raised the issue, I got no answer from the delegation and so, as we do in these proceedings, I came back to the issue in a second round. And that then triggered a response from a member of the delegation, who said he did not see the issue because he did not see any mention of trans people in the treaty.

Now that horrific attitude back then was all too common. It was based on that and similar incidents, that a group of us got together in an exercise to map the application of human rights law and standards to the lived experience of everybody, regardless of their sexual orientation or gender identity. And that exercise led to the adoption of the set of principles known as the Yogyakarta Principles.

Some of you are familiar with the principles. They have had some impact over the years, but on the basis of those principles, I was invited to Strasbourg. I was invited to give evidence in the early stages of the negotiation of what would become Recommendation No. 5, the so-called SOGI Recommendation.

The story is the basis of why I am so very glad to be at this particular event to speak in the context of Recommendation No. 5 and of the highly innovative annual review and all of the related procedures. I want to express appreciation to the Council of Europe for yet again giving a global leadership example through this work.

The high attention that the Council of Europe has paid and continues to pay to the range of issues, including protection from violence, is as needed today as ever. And I want to acknowledge with sadness and outrage the killing just 2 weeks ago, an hour away from where I live in Vienna, of Matúš Horváth and Juraj Vankulič, who were murdered outside a gay bar in Bratislava.

The Fundamental Rights Agency, as part of our commitment to work in this area, is committed to capture the lived experience of LGBTI people, above all else through our periodic surveys. We have conducted the survey twice, first in 2012 and most recently in late 2019, with the results published in 2020.

What are some of the data? Well first let me say that the survey only covers EU Member States, as well as three other countries that are observers to our Agency.

Firstly, 58% of respondents experienced harassment in the past 5 years, either physical or online. We know that online, the most common form of harassment is based on sexual orientation or gender identity.

Turning to physical violence, 11% of LGBTI people have experienced at least one violent attack in the past 5 years. This rises to 17% if you are trans, 22% if you are intersex. And generally, we see that the levels of harassment and violence are higher for younger people, and there is a very important dimension of intersectionality, which must never be forgotten. In other words, if you are LGBTI and Roma, if you are a migrant, if you have a disability, you are more likely to experience harassment or violence.

Turning to the reporting rates, they are very worryingly low. For harassment, just 1 in 10 incidents are reported, and just 4% to the police.

Coming to violence, it is one in five, 20% are reported. But here, just 14% to the police, and when we ask why nobody is going to the police, the persistent answer we got from multiple countries was because people feared homophobic treatment when they made the complaint.

To add to the empirical data, you do not need me to tell you that we are seeing growing pressure on LGBTI civil society, all types of harassment as well as a persistent pattern of homophobic and transphobic speech from public personalities, including politicians, in a context where they just get away with it.

So, what is to be done? Let me suggest to you some action points. First, I would strongly encourage governments to invest in gathering the data. It is still the case that far too few countries gather data on incidents of violence against members of the LGBTI communities.

Without the data, we would not really make a difference. My Agency also will continue to invest in data gathering, but it is not enough and of course it does not cover those Council of Europe States that are not members of the EU. But we will help any country anywhere that wants support in terms of methodologies.

Secondly, it is very important to continue to invest in addressing the environment where hate is formed. We have to continue to invest in public sensitisation campaigns. It is an obvious fact that attitudes in society lag behind law reform, and yet we tend to neglect that dimension.

Thirdly, we have to maintain a supportive environment for civil society – not just LGBTI civil society, but all civil society.

We have to maintain a focus of attention on digital space, including regarding content moderation and the taking down of hate speech. This is very challenging because we need to take the hate offline, but we have to do it in a way that respects freedom of expression. And again, here I would offer my Agency’s support, including in the new zone of engaging with monitoring – controlling if we must – automated content moderation, which is the dominant form of content moderation today.

We also have to address the issue of our police forces. I was very impressed by what I heard about the Garda Síochána and the changes here in Ireland; we need to see that rolled out across all EU countries. We need to address patterns of homophobia within police forces. We need to address it not just as good practice, but as an issue of basic discipline required of every police officer.

Now turning to the armoury of criminal law. We at the Fundamental Rights Agency would strongly encourage that States include sexual orientation, gender identity, gender expression and sex characteristics as aggravating bias motivation that would qualify a crime as a hate crime. Here again, we acknowledge the recent announcements here in Ireland.

But it is not enough to have hate crime laws; we have to use them. We have to make sure that hate crimes are effectively recorded, investigated and prosecuted. We at my Agency are supporting EU Member States to do this work, and from that experience, we have observed the need to provide police officers with detailed guidance concerning descriptions of bias indicators. It is not straightforward – our police forces need help to turn hate-crime legislation into effective policing. Police forces also need an applied monitoring definition of what hate crime looks like on the ground.

There is the issue of reporting. We have to improve reporting rates, encourage reporting. It is about the issue of the attitude of our police forces, but we can do more, we can go further. There is the high value in deploying specialised police liaison officers; there is the potential of developing possibilities for third-party reporting of incidents. And of course, there is the imperative for all of this, and everything related of working with civil society as a partner – not for civil society, but with civil society.

As I conclude my remarks, I would say we need to be very vigilant because, horrifyingly, we have seen that progress is not linear. We can go backwards as well as forwards. We have seen steps backwards in law policy and practice, we have even seen changes to constitutions to send us backwards in recent years. So, progress is not assured; it is not safe once it is secured.

But I would encourage us to maintain a guarded hope. The Fundamental Rights Agency’s surveys offer some basis for hope. For instance, in 2012 when we asked people if they were open about their LGBTI identity, just one in three were open, so two thirds kept it hidden. We asked the same question in 2019 and the change was one in two, so 50% were open about their identity. That is a remarkable change in a relatively short period of time.

But the strongest basis for hope, my friends, is personal. It is something from your own experience. And let me share with you why I remain hopeful. I am hopeful because of the transformation of my own country, this country, Ireland. On 23 May, a Saturday in 2015, I was in the Yard of Dublin Castle, the counting centre for the referendum on marriage equality. We were crammed into the space, many thousands of us. I will never forget the euphoria that day. The sense that everything is possible.

And it is that spirit, that memory, that visceral moment that I had, that is why I believe that we can have progress that’s meaningful. We can change our world, we can deliver on Article 1 of the Universal Declaration of Human Rights, we can build a world where everyone is free and equal in dignity and in rights.

Thank you.

See also