B Explanatory memorandum by Ms Memecan,
1. When dealing with the question of discrimination
on the basis of sexual orientation and gender identity on behalf
of the Committee on Equal Opportunities for Women and Men, the first
problem to be faced is a certain confusion over the terms of the
debate: “sex” versus “sexual orientation”, “gender” versus “gender identity”.
It thus seems useful to repeat Mr Gross’ definitions here:Note
- “sexual orientation” refers to each person’s capacity
for profound emotional, affectional and sexual attraction to, and
intimate and sexual relations with, individuals of a different gender
or of the same gender or of more than one gender. Sexual orientation
is a profound part of the identity of each and every human being
and covers heterosexuality, bisexuality and homosexuality. The latter
has been decriminalised in all member states of the Council of Europe;
- “gender identity” refers to each person’s deeply felt
internal and individual experience of gender, which may or may not
correspond to the sex assigned at birth, including the personal
sense of the body (which may involve, if freely chosen, modification
of bodily appearance or function by medical, surgical or other means)
and other expressions of gender, including dress, speech and mannerisms.
Definitions of “sex” and “gender” are not uniform. However,
as the Council of Europe Commissioner on Human Rights, Thomas Hammarberg,
has pointed out in a recent paper, “it is important to distinguish
between the notions of “sex” and “gender”. While “sex” primarily
refers to the biological difference between women and men, “gender”
also includes the social aspect of the difference between genders
in addition to the biological element.”Note
ILGA Europe, an association of LGBT activists, in its submission
to the committee tasked with drafting the future Council of Europe
convention on action to combat violence against women and domestic
violence (CAHVIO), has even made the point that: “Homophobia and
transphobia can be seen as heightened expressions of gender discrimination.
Indeed, it has been argued that homophobia is ‘a weapon of sexism’,
in that its effect is to deter and punish expression and behaviour
which do not conform to, and therefore undermine, patriarchal concepts
of gender and gendered roles”.Note
5. Sexism and discrimination on the basis of sexual orientation
and gender identity thus seem to have similar roots and seem be
linked, even if the concepts themselves are different.
2 Sex discrimination and gender-based violence against
lesbian, bisexual and transgender women
It should thus come as no surprise that lesbian,
bisexual and transgender (“LBT”) women experience gender-based violence,
both on account of their gender and because of the way their sexual
orientation or gender identity challenges traditional concepts of
gender and gender roles. Indeed, as ILGA Europe has pointed out,
it is not always possible for LBT women to separate out their experiences
of anti-lesbian and anti-women discrimination.Note
In 2002, the then Special Rapporteur on violence against women
told the United Nations Commission on Human Rights: "Gender-based
violence is also related to the social construct of what it means
to be either male or female. When a person deviates from what is
considered "normal" behaviour they are targeted for violence. This
is particularly acute when combined with discrimination on the basis
of sexual orientation or change of gender identity. Violence against
sexual minorities is on the increase and it is important that we
take up the challenge of what may be called the last frontier of
There is evidence that LBT women are particularly affected
by some forms of gender-based violence, such as rape, sexual violence
and harassment, and forced marriagesNote
Member states should thus provide protection commensurate with the
increased risk run by LBT women, and this should also be taken into
account during the negotiations in the CAHVIO.
3 Discrimination and violence within the LGBT community
9. The LGBT community itself is not immune to discrimination
and violence, either. Same-sex relationships can turn violent as
well as heterosexual relationships. The difference is mainly one
of concept: the Council of Europe believes, for example, that violence
against women (including domestic violence) is the extreme (but logical)
consequence of inequality between women and men. This concept is
more difficult to apply to violence within same-sex relationships,
when both perpetrators and victims are of the same sex.
Nevertheless, the existence of the violence cannot be negated.
ILGA Europe, in its submission to the CAHVIO, cited a significant
research project conducted in this area in the United Kingdom in
2003, the principal findings of which were summarised as follows.
- “In a sample of 1911 lesbian
and bisexual women, 22% had suffered physical, sexual, mental abuse
or violence from a regular same-sex partner, while 19% had suffered
some recurrent abuse.
- In a sample of 1391 gay and bisexual men, 29% had suffered
physical, sexual or mental abuse or violence from a regular male
sexual partner, while 24% had suffered some recurrent abuse.
- The differences between women and men for types of abuse
were marginal. In both the most common form of abuse was emotional
or mental abuse such as ‘insults, putting downs or belittling’.
Almost as many reported being physically attacked or hit.”Note
ILGA Europe concludes from these findings that victims of
domestic violence in same-sex relationships (in particular, LBT
women) should be covered by the future Council of Europe convention
on action to combat violence against women and domestic violence.Note
I am not certain, however, that this
is a conclusion this committee – and indeed the Assembly – can share,
since the committee and the Assembly have asked the Committee of
Ministers to draw up a convention devoted to violence against women,
including domestic violence. (For the Assembly, domestic violence
is only one form of violence against women.) Indeed Assembly Recommendation 1847
(2008) proposes limiting the future Council of Europe convention
to “the severest and most widespread forms of violence against women”.
Another thorny issue is sex discrimination within the LGBT
community. For example, there have been several years of debate
within the Cologne (Germany) LGBT community about the organisation
of the annual “Christopher Street Day parade”, which many LBT women
feel has become too sexualised and attacks the dignity of women
(by, for example, allowing one of the biggest European brothels
to participate, as well as both straight and homosexual followers
of sado-masochism who parade their female sex “slaves”).Note
Some LBT women have reacted by launching
a “women’s pride” parade, but the debate is ongoing and bitter.
13. Finally, it is unclear whether LBT women can expect more or
less solidarity than gay men from the LGBT community when, for example,
“coming out”, fighting for their rights, or entering politics. In
Germany, an openly gay man has recently become Vice-Chancellor and
Minister of Foreign Affairs; the country already has several openly
gay male mayors, but not a single openly lesbian one. It is thus
quite possible that lesbians suffer sex discrimination even within
their own community.
14. I would like to commend the rapporteur of the Committee
on Legal Affairs and Human Rights, Mr Gross, for his excellent and
comprehensive report. The only thing the report lacks is gender-sensitivity
– I am thus glad that I have been given the opportunity to point
out that discrimination on the basis of sexual orientation and gender
identity can be magnified on the basis of sex and gender – with
lesbian, bisexual and transgender women, in particular, running
an increased risk of violence due to remaining patriarchal structures
in society. In addition, there can also be instances of sex discrimination
within the LGBT community.
15. I would thus like to propose four amendments to gender mainstream
the texts to be adopted, and count on the committee’s support.