B Explanatory memorandum
by Mr Christophe Lacroix, rapporteur
1 Introduction
1. The rights to freedom of expression
and assembly are fundamental rights for all which are guaranteed by
numerous international legal instruments, including the European
Convention on Human Rights (ETS No. 5). Respect for these rights
is also at the heart of any functioning democracy; everyone must
be able to enjoy these human rights equally and in safety.
2. For LGBTI persons, however, the rights to freedom of expression
and assembly are of particular importance as all too often, they
still feel compelled to hide for fear of being rejected by those
around them or even of being verbally or physically attacked in
the public space. They internalise a sense of shame due to the more
or less strongly heteronormative context of our societies. Restricting
LGBTI persons' freedom of expression and assembly contributes to
their invisibilisation and perpetuates the stigmatisation of these people,
who are then perceived to be less worthy than others of exercising
their rights.
Note
3. More European cities than ever before are now holding Pride
marches. However, attacks on these events are increasing, as are
attempts by the authorities to restrict or prevent them. These threats
take the form of administrative obstacles, abusive and repeated
judicial proceedings (SLAPPs, for strategic lawsuits against public
participation) against organisers of public events, insufficient
security guarantees for authorised demonstrations, and “anti-propaganda”
laws. The arsenal of methods that are used to harass and threaten LGBTI
persons seems limitless.
4. Following the threatened ban on the EuroPride in Belgrade
in September 2022, the Parliamentary Assembly held a current affairs
debate on this issue on 13 October 2022. The various speakers highlighted
the serious failings that had occurred on this occasion and also
mentioned incidents that had taken place in previous months in other
European countries (various cities in Türkiye and Georgia were mentioned)
where Pride events had been banned, prevented or inadequately protected.
Note
5. In a report approved by the Committee on Equality and Non-Discrimination
in September 2021, “Combating rising hate against LGBTI people in
Europe” (Doc. 15425), our colleague Fourat Ben Chikha (Belgium,
SOC) had already drawn attention to a number of restrictions and
attacks on the freedoms of expression and assembly that were undermining
the rights of LGBTI persons on our continent. In this regard, he
referred to difficulties and violence that had affected events planned
by LGBTI organisations in Bulgaria, Greece, Poland, Romania, Türkiye
and Ukraine in the months prior to his report. These events had
been banned, hindered by disproportionate restrictions, not adequately
protected by law enforcement authorities, and sometimes even violently
repressed by them.
Note
6. Other restrictions also remain problematic in this field,
including so-called “anti-LGBTI propaganda” laws, which have already
been condemned by the Assembly in its Resolution 1948 (2013) “Tackling discrimination
on the grounds of sexual orientation and gender identity”; measures
to limit or prevent children's access to books depicting non-heteronormative
families or to eliminate any discussion of gender at all levels of
education; or attacks aimed at obstructing the work of LGBTI human
rights defenders or their organisations. All of these obstacles
to the freedom of expression of LGBTI persons have serious effects
on them and can constitute breaches of their rights.
Note
7. Pride marches and other public events such as conferences,
symposia, demonstrations, queer film festivals and art exhibitions
are, as our colleague Fourat Ben Chikha has pointed out, “a crucial
means for LGBTI persons to reclaim the space and the dignity that
the prevailing social order still denies them”.
Note
8. In some countries, despite the clear and constant case law
of the European Court of Human Rights in this field (see below),
public events and demonstrations held by associations that defend
the rights of LGBTI persons continue to be subject to bans and administrative
obstacles.
9. In 1987 – over 35 years ago – Antonio Banderas said, “I have
received more hate mail for having kissed a man on the mouth in
the film [
La ley del deseo (
Law of Desire)] than for killing
them.” The French artist Hoshi was subjected to hate attacks and
received death threats after kissing a young woman on stage during
the Victoires de la Musique ceremony in 2020.
Note While attitudes towards LGBTI
persons in Europe have become more open on the whole, the few facts
mentioned above show alone that there is still a long way to go
before LGBTI persons are not merely tolerated, but also genuinely
accepted in all our societies. Fully guaranteeing their freedom
of expression and assembly is an integral part of this process and
is not only essential in any democratic society, but also a human
rights obligation.
2 Scope of the report and working methods
10. Following the current affairs
debate of 13 October 2022, the Bureau of the Assembly decided to
ask the Committee on Equality and Non-Discrimination to prepare
a report on the subject. I was appointed rapporteur and carried
out desk research, taking into account the case law of the European
Court of Human Rights and the work done by the Committee of Ministers
in supervising the execution of its judgments. I looked at reports by
the Council of Europe and international bodies and actors active
in the field of LGBTI rights, such as the European Commission against
Racism and Intolerance (ECRI) and the United Nations Independent
Expert on protection against violence and discrimination based on
sexual orientation and gender identity.
11. On 3 and 4 April 2023, I carried out a fact-finding visit
to Hungary, where I had the opportunity to hold talks with representatives
of the authorities, parliament and civil society.
12. On 22 June 2023, the Committee on Equality and Non-Discrimination
held a joint hearing with the Parliamentary Platform for the rights
of LGBTI people in Europe with the participation of Vladimir Simonko, Executive
Director, LGL, Lithuania, Florina Presadă, Executive Director, Accept
Romania, and Claire Vandendriessche, Spokesperson, Acceptess-T,
France.
13. On 24 January 2024, I had a meeting with Dunja Mijatović,
Commissioner for Human Rights of the Council of Europe.
14. I organised bilateral meetings with representatives of civil
society in January and February 2024. On 25 January 2024, I talked
to Cianán B. Russell, Senior Policy Officer, ILGA-Europe, and Ilaria
Todde, Advocacy and Research Director, EL*C (Eurocentralasian Lesbian*
Community). On 5 February 2024, I had the opportunity to talk to
the Council of Europe SOGIESC (Sexual Orientation, Gender Identity
and Expression, and Sex Characteristics) secretariat and Nancy Miranda
Kelley, a UK-based activist. On 12 February 2024, I had an online
bilateral meeting with Deekshitha Ganesan, Transgender Europe (TGEU)
and Olena Shevchenko, President of the NGO Insight (Ukraine). On
19 February 2024, I had a meeting with Alexandra Demetrianová, representing
Saplinq (Slovak Republic), and Mar Cambrolle, President of Plataforma
Trans (Spain).
3 Case
law of the European Court of Human Rights
15. There is a wealth of case law
from the European Court of Human Rights relating to freedom of expression
and assembly for LGBTI persons. This case law clearly suggests that
peaceful Pride demonstrations and the displaying of LGBTI identity
are not the problem; it is the prohibition or obstruction of the
free expression of sexual orientation, gender identity or expression
or sex characteristics, or the political claims related to any of
these personal characteristics, that is problematic.
16. This report does not provide an exhaustive list of the Court’s
case law on the subject. However, I wish to draw attention to a
number of important findings of the Court based on the different
cases referred to it.
Note
17. First of all, the Court has found on many occasions, and in
particular in numerous judgments delivered since 2007 concerning
the Russian Federation, Republic of Moldova and Poland, that banning
public Pride events (parades or other events aimed, for example,
at raising public awareness of discrimination against LGBTI persons
and/or defending their rights) was not necessary in a democratic
society, and was therefore contrary to Article 11 of the Convention
(freedom of assembly).
Note The lack of an effective remedy to challenge such
bans has been found to violate Article 13 (right to an effective
remedy) taken in conjunction with Article 11
Note –
including where the parade had eventually taken place despite the
ban and an appeal provided for by law could only be exercised after
the date of the event.
Note Such
bans also violate Article 14 (prohibition of discrimination) taken
together with Article 11 when there is a discrimination on grounds
of sexual orientation.
Note
18. The persistent refusal by the Russian authorities to approve
requests to hold LGBTI gatherings was condemned by the Court again
in 2018 in a case involving 51 applications brought by seven applicants.
Note The Court underlined that
States have an obligation to execute its judgments and again found
that all of the violations mentioned above had occurred. In particular,
it concluded that the rejection of the applicants' requests to hold
public LGBT events could not be justified by concerns over public
disorder and had breached their right to freedom of assembly; that
the absence of any requirement for the authorities to make a decision on
the events prior to the dates on which they were to be held had
amounted to absence of an effective remedy; and that the decision
to block LGBT events had clearly been motivated by the authorities'
disapproval of the demonstrations and had thus amounted to discrimination,
in violation of Article 14 of the Convention.
19. Disproportionate and unjustified restrictions taking the form
of requirements regarding the location, time and date or manner
of conducting peaceful LGBTI gatherings which had undermined their
very purpose, as well as a wide range of other measures taken against
the applicants on the basis of legal provisions that did not provide
any protection against arbitrary and discriminatory use by the authorities
of their powers, were moreover considered by the Court to have led
to a violation of Article 11 interpreted in the light of Article
10 (freedom of expression) of the Convention.
Note
20. Authorities are also required, where gatherings and other
LGBTI events are permitted, to take sufficient measures to facilitate
access to the gathering and to contain LGBTI-phobic and violent
counter-demonstrators so that the event can take place peacefully,
using any means possible – for example, by making public statements
before the demonstration to advocate a conciliatory attitude and
in particular by assessing the resources necessary for the smooth
running of the event at the time when it is being planned, and by
deploying sufficient police personnel. In several cases concerning
Georgia, Romania and the Russian Federation, failure to fulfil this
obligation was considered to constitute a violation of Article 11
taken in conjunction with Article 14 of the Convention.
Note
21. In cases where the Georgian or Romanian authorities had failed
to protect demonstrators from violent attacks by counter-demonstrators
and/or had failed to carry out an effective investigation into such
incidents, establishing, in particular, the discriminatory motive
behind the attacks, the Court also found a violation of Article
3 (prohibition of inhuman or degrading treatment) taken together
with Article 14.
Note
22. In the light of all of the above case law relating to Articles
3, 10, 11, 13 and 14 of the Convention, it can be concluded that
concerns as to the maintenance of public order cannot justify banning
peaceful public LGBTI events or imposing disproportionate restrictions
on them. The authorities also have an obligation to ensure that an
effective remedy is available if a request to hold such an event
is refused. This includes being able to exercise the remedy before
the scheduled date of the event. Moreover, instead of hindering
the organisation and running of such events, authorities must use
all possible means of preventing possible attacks on them (at least
reasonably foreseeable ones) and protecting them, as well as carry
out effective investigations, including in relation to any possible
LGBTI-phobic motivation, when attacks are nevertheless carried out.
23. Finally, I wish to draw attention to two other relevant cases
relating to public events. In a case concerning homophobic threats
and other verbal attacks by a group which interrupted the screening
of a film on the rights of LGBTI persons, where the Romanian authorities
had failed in their positive obligation to carry out an effective investigation
in order to determine whether these facts amounted to a criminal
offence motivated by homophobia, the Court found a violation of
Article 14 in conjunction with Article 8 (right to respect for private and
family life) and also held that the authorities had thus displayed
their own prejudices against members of the LGBTI community.
Note
24. Furthermore, the arrest of a demonstrator during a rally to
promote the rights of LGBTI persons and her transfer to a police
station for the purpose of recording a simple administrative offence
(despite the fact that the report could have been drawn up on the
spot) were also considered to be in breach of Article 5, paragraph
1, of the Convention (right to liberty and security).
Note
4 Attacks
on freedom of assembly
25. I wish to emphasise that the
same principles apply to all member States of the Council of Europe.
As soon as one State has been condemned for certain acts by the
European Court of Human Rights, all member countries are put on
notice that any similar action by their authorities will also be
deemed contrary to the Convention and should therefore be avoided.
26. Unfortunately, behaviour by authorities similar to that outlined
above continues to occur in a number of our member States. Notwithstanding
the cancellation or switching to online format of events of all
kinds across Europe in 2020 and 2021 due to measures to combat the
Covid-19 pandemic, and despite the acceptance of Pride events in
increasing numbers of countries and cities, ILGA-Europe has identified
numerous obstacles to the freedom of assembly of LGBTI persons in
Europe over the past five years.
Note
27. Such obstacles are primarily administrative in nature, when
authorities at different levels intervene to prevent or make it
more difficult or more costly to hold events aimed at raising public
awareness of the situation and rights of LGBTI persons or cultural
events organised by or about LGBTI persons.
28. The Russian Federation has not been a member State of the
Council of Europe since 2022. Nevertheless, together with Emanuelis
Zingeris (Lithuania, EPP/CD), General Rapporteur on the situation
of human rights defenders and whistleblowers, we wished to support
the LGBTI community living in the Russian Federation following the
Supreme Court's decision to ban the “international LGBT movement”
and classify it as extremist.
Note This decision
follows multiple restrictions and aims to completely remove a social
group from the public space.
4.1 Prohibition
of LGBTI events
29. Recommendation CM/Rec(2010)5
of the Committee of Ministers to member States on measures to combat
discrimination on grounds of sexual orientation or gender identity
stresses that “[m]ember states should take appropriate measures
to prevent restrictions on the effective enjoyment of the rights
to freedom of expression and peaceful assembly resulting from the
abuse of legal or administrative provisions, for example on grounds
of public health, public morality and public order.”
30. In Türkiye, Pride marches were held peacefully for several
years. However, since the failed coup in 2016, LGBTI persons and
organisations have become the target of an increasing number of
hostile statements by the President and in the media which encourage
national and local authorities to restrict LGBTI events, and bans
on such events are imposed regularly. Following the blanket ban
on LGBTI events put in place in 2016 in Ankara, LGBTI persons were
barred from holding events until a court lifted the ban in February
2019. The İstanbul Pride march has been banned every year since
2015. In 2019, Pride marches were also banned in İzmir, Antalya
and Mersin, a film screening was banned in Tunceli, and the Queer
Olympix event was cancelled. In 2022, 11 Pride events were banned
in Türkiye, including those planned at Boğaziçi University and Middle
East Technical University (METU) and in Eskişehir, Ankara and İstanbul.
Such bans are imposed even though the courts regularly declare them
contrary to respect for freedom of assembly and underline that the State
must allow peaceful gatherings.
Note The Commissioner for Human Rights of the
Council of Europe has expressed concern to the Turkish authorities
about the impossibility for LGBTI persons to exercise their right to
peaceful assembly due to the sweeping restrictions imposed on LGBTI
events by authorities at different levels over the years.
Note
31. In other cases, an initial refusal by local authorities to
authorise an event has had to be challenged in court. The case of
EuroPride in Serbia in September 2022, where remarks made by the
country's President a few weeks before the event did much to create
a climate of doubt and fear surrounding it, has been mentioned above.
Note
32. In Lithuania, the city council of Kaunas had initially refused
to allow the first Pride event ever planned in the city to go ahead
in September 2021, a decision that was ultimately overturned by
the courts.
Note But this situation contrasts
with that in Vilnius, where Pride events, including the Baltic Pride,
have been held without incident for several years.
33. In Poland, many decisions by local authorities to prohibit
Pride or equality marches have had to be challenged in court by
civil society and have been overturned by the courts. In 2019, this
happened in the cities of Gniezno, Gorzów Wielkopolski, Kielce,
Lublin (where it had also happened in 2018) and Nowy Sącz. While Pride
events were able to take place in about 30 Polish cities in 2022,
parades in about 30 other cities and villages that had adopted anti-LGBTI
resolutions had to be held in the metaverse.
Note
34. In Romania, a Pride march was able to go ahead in Iaşi for
the first time in October 2021 following an initial refusal by the
city council which the organising associations successfully challenged
in court. Elsewhere in the country, stringent health-related restrictions
(limiting the number of participants to 100, then 500) continued
to affect events in public places held by civil society in 2021
even though these restrictions had been lifted for religious, cultural
and sporting events. As a result, following the Pride marches that
took place in Bucharest and Cluj, which exceeded the number of authorised
participants, the organisers of these events were fined.
Note After announcing that the Bucharest
Pride march would take place in 2022, the organisers received several
death threats. The police were slow to react to make the event safe.
According to Florina Presadă, in recent years there has been a rise
in hatred against LGBTI persons which has been encouraged by some
politicians. At the hearing of the Committee on Equality and Non-Discrimination,
she called on parliamentarians to combat hate speech.
35. Finally, in Bosnia and Herzegovina, a Pride march was able
to take place for the first time in September 2019. While this was
an important step forward in this country, and the parade passed
off without incident and with sufficient protection, the organising
associations had to bear the high costs of hiring private security
firms and installing metal or concrete barriers all along the route
of the parade, and excessive administrative constraints again affected
Pride events in 2022.
Note In Croatia, the
city council of Zagreb initially demanded significant fees for the
holding of the Pride march in 2018, a decision that was eventually
overturned following a complaint from the organising associations.
Note
4.2 Repression
by law enforcement authorities
36. The second main type of scenario,
which has arisen too often in recent years, is where peaceful demonstrations
have been held with or without prior notification and have been
the subject of violent repression by law enforcement authorities,
or the latter have arrested or detained participants, sometimes
unlawfully.
37. In Türkiye, Pride parades held despite having been banned
by the local authorities (see above) have often been violently repressed
by the police over the past five years.
Note In May 2019, a Pride march held on the campus
of METU in Ankara was broken up by law enforcement officers who
used pepper spray, rubber bullets and tear gas. Although the event
was peaceful, 22 people were arrested and prosecuted before eventually being
acquitted in October 2021, after more than two years of proceedings.
Also in 2019, police violently attacked people who had gathered
in central İstanbul during Pride week.
38. In recent years, events held on the occasion of International
Women's Day (8 March) or the International Day for the Elimination
of Violence against Women (25 November) have also been violently
repressed, including with tear gas, and LGBTI flags carried by some
of the demonstrators have been confiscated. In 2022, the repression
of peaceful Pride events that went ahead despite having been banned
unlawfully was particularly violent. In many cases, rubber bullets
and tear gas were used. A total of 530 people were detained during
the 37-day Pride season in Türkiye, including 373 for the İstanbul
gathering alone. Subsequently, more than 200 people were again arrested
in İstanbul during the 25 November event.
39. In Poland, LGBTI activists regularly organise actions, often
in response to anti-abortion and anti-LGBTI demonstrations. In 2020,
several activists were arrested by plain-clothes police officers,
creating a climate of harassment and fear. The arrest of non-binary
activist Margot Szutowicz in August 2020 was followed by a protest
demonstration during which 48 people were arrested; in 2022, courts
ultimately ruled that 41 of these arrests had been unlawful, unjustified
or irregular.
Note
40. In Azerbaijan, events held in 2019 and 2021 on 8 March to
promote women's rights and protest against discrimination on the
grounds of sexual orientation or gender identity were broken up
by the police and participants were arrested.
Note
4.3 Insufficient
protection of gatherings
41. The third major obstacle to
the freedom of assembly of LGBTI persons results from insufficient
protection of gatherings against attacks from individuals or non-State
entities. Such attacks have taken place in a very large number of
countries and the perpetrators are far-right or even neo-Nazi groups,
religious groups, politicians or LGBTI-phobes. They take the form
of physical and/or psychological violence manifested as insults and
verbal abuse, physical attacks, eggs and bottles being thrown at
participants, acts of vandalism, and even death threats. Among the
countries concerned (to differing degrees) during the last five
years are Armenia, Bulgaria, Czechia, France, Georgia, Germany,
Greece, Ireland, Italy, Lithuania, the Republic of Moldova, North Macedonia,
Poland, Romania, Serbia, Slovenia, Sweden, Türkiye and Ukraine.
Note
42. Recommendation CM/Rec(2010)5 is clear on this point: “Member
States should ensure that law enforcement authorities take appropriate
measures to protect participants in peaceful demonstrations in favour of
the human rights of lesbian, gay, bisexual and transgender persons
from any attempts to unlawfully disrupt or inhibit the effective
enjoyment of their right to freedom of expression and peaceful assembly.”
43. In Georgia, acts of vandalism were committed on the premises
of LGBTI associations during the Pride week in 2021, and numerous
acts of LGBTI-phobic violence disrupted the week, culminating in
the cancellation of the final parade due to extremely violent attacks
carried out by opponents.
Note The first-ever Pride parade held in Rhodes
(Greece) in 2022 was disrupted by individuals wearing neo-Nazi symbols
who threatened participants, spat at them and threw eggs at them,
without the police intervening to prevent these acts. In North Macedonia,
seven activists and three police officers who tried to help them
were violently attacked by about 20 people who threatened them with
rape and death following the holding of the first-ever Pride parade
in Skopje in 2019. Thanks to the intervention of other police officers,
however, the assailants were arrested and prosecuted.
44. In Poland, although a record number of 24 Pride marches took
place in 2019, some were violently attacked by counter-demonstrators.
In Romania, an unidentified person threw gas bombs at the audience attending
the closing concert of the Pride festival held in Bucharest in 2022;
in Iaşi, a far-right group threw eggs at participants in the second
Pride parade held in June of the same year. In Ukraine, far-right
groups have carried out numerous violent actions in recent years
with the aim of disrupting events held by LGBTI associations. The
Odessa Pride Parade was the subject of particularly violent attacks
in 2020, in the absence of adequate police protection. In 2021,
dozens of police officers were injured while protecting demonstrators from
attacks by neo-Nazis. In all of these cases, the attacks took place
after political or religious leaders had spoken out publicly against
the events in question, often making openly LGBTI-phobic remarks.
45. To end on a more optimistic note, I would like to point to
progress made in the Republic of Moldova. After violent attacks
on the Pride march held in Chişinău in 2017, the 2018 event received
increased police protection. Orthodox Christians attempted to disrupt
the parade but were prevented from doing so by the rapid response
of the police. The following year, counter-demonstrations were held
but no violent incidents took place. In 2022, despite the city mayor’s
stated desire to ban the event, the largest Pride march ever held
in the country took place in Chişinău without incident. It was attended
by several hundred people including six members of parliament.
5 Attacks
on freedom of expression
46. With regard to freedom of expression,
so-called “anti-gay propaganda” laws prohibiting the supposed “promotion”
of LGBTI identities are in force in several European countries including
Hungary, Lithuania, Poland, the Russian Federation (which is no
longer a member of the Council of Europe but whose relevant legislation
has been closely scrutinised by the European Court of Human Rights,
which found a violation of Article 10 as well as a violation of
Article 10 in conjunction with Article 14 of the Convention) and
Türkiye.
Note Most often, protecting minors
from the allegedly harmful effects of the public dissemination of
certain information is cited as the “justification” for these laws.
However, they clearly limit freedom of expression disproportionately
as they are used, for example, to support the banning of children's
books featuring LGBTI characters or to prevent the provision of
inclusive sex education.
47. The European Court of Human Rights has already condemned such
provisions, holding that regulating public debate on LGBT issues
could not be justified on the basis of protecting morality and that
such regulations did not help to realise this legitimate aim.
Note It
has also pointed out that by adopting such legislation, “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.”
Note
48. I would also like to draw attention to the negative impact
on freedom of expression in education of “anti-gay propaganda” laws
and also simply of “traditionalist” education policies. The refusal
to provide sex education that is inclusive of LGBTI identities and,
in the worst cases, the prohibition of any representation of these
identities in schools, prevent children from accessing information
that is essential to their understanding of the world around them
and contribute to the perpetuation of shame and stigmatisation of
LGBTI persons. Such restrictions on freedom of expression have no
place in a democratic society.
49. In 2021, the Hungarian Parliament adopted even more restrictive
amendments to several pieces of legislation
Note prohibiting
the “propagation or portrayal of divergence from personal identity
corresponding to sex at birth, changing of sex or homosexuality”.
Following the strong criticism of these provisions made by the European
Commission for Democracy through Law (Venice Commission),
Note the Assembly has already called on
Hungary twice to repeal them.
Note However, they remain in force to
this day. I am particularly concerned about these provisions, which
go much further than those in force in other countries – already
condemned by the European Court of Human Rights – and seem to have
the effect of prohibiting any representation at all of LGBTI persons
in the public domain. Civil society organisations have also alerted
me to the fact that these provisions contribute to worsening a climate
that is already hostile towards LGBTI persons in Hungarian society.
Note
50. During our discussions, the authorities emphasised the protection
of so-called “traditional” family values and minors. I pointed out
that the great majority of sexual violence against children was
committed within their family circle and household. I have seen
that hate speech is now completely uninhibited in that country and used
by politicians. In theory, all citizens have the same rights and
duties in Hungary. If they are LGBTI, we cannot but note that their
rights and freedoms are restricted. For example, it is illegal to
express LGBTI characteristics in public spaces or in the media before
10 pm. Sex and emotional education classes have been removed from
the mainstream curriculum. In adolescence, it can be difficult to
address these issues in a family context, which is why it is important
to have this type of programme in lower and upper secondary schools.
As far as freedom of association is concerned, rights are respected
and there have been no major obstacles to the holding of Pride marches.
51. In Lithuania, many restrictions are based on provisions introduced
in 2009 in the Law on the Protection of Minors which prohibit the
dissemination of information that is “harmful” to minors, which
can be interpreted as censorship of LGBTI content. While some argue
that the law has not been used against LGBTI persons, the relevant
provisions have never been repealed. The case of
Macatė v. Lithuania, in which the
European Court of Human Rights ruled in January 2023 that Lithuania
had violated the applicant's freedom of expression, concerned a
collection of six children's stories, two of which featured married
people of the same sex. Vladimir Simonko said at the hearing held
by the Committee on Equality and Non-Discrimination that the distribution
of the book had been suspended after its publication and then resumed
after labels warning that the content of the book could be harmful
to children under 14 had been affixed. This case must send a clear
message to the Lithuanian authorities that they must repeal the
relevant provisions of the Law on the Protection of Minors. Mentalities
are changing and there is growing public support for Pride marches.
Note
52. In Belgium, during the carnival of La Louvière in 2023, Gilles'
costumes (transformed into Gilettes), proposed by the LGBTI community
and approved by the city council and the organisers were complained
about by a part of the population on the spurious ground that they
could be disturbing to children. Fourat Ben Chikha shared his concern
with the members of the committee. In 2024, the LGBTI community
renewed its request to participate in the carnival parade. It was
subjected to such a campaign of hatred and threats on social media that
it preferred to withdraw from the carnival (despite the support
of the organisers), thereby practicing self-censorship (which is
often the case in similar circumstances). In 2023, the far-right
former federal MP (Vlaams Belang) Dries Van Langenhove used the
International Day Against Homophobia, Biphobia and Transphobia to spread
hate speech against the LGBTI community: on his accounts and social
media, he called the LGBTI flag a paedophile flag. In June 2023,
young members of far-right groups held up slogans equating homosexuality with
paedophilia near a drag show, and a debate on the situation of LGBTI
Muslims had to be cancelled due to the outcry triggered by the event.
Incidents such as these contribute to a toxic climate.
53. In Switzerland, the neo-Nazi group Junge Tat disrupted a “drag
story time” in Zürich in October 2022 with queerphobic slogans and
tear gas.
54. In Ireland, three people were attacked after the Dublin Pride
march and had to be hospitalised (transphobic hate crime). In July
2022, a “drag story time” in Mayo was targeted by members of a far-right
group who gathered outside the bookshop and threatened attendees.
55. In Türkiye, in July 2023, RTÜK (the Radio and Television Supreme
Council) fined Netflix, Disney+, Prime Video, MUBI, BeIN and Blu
TV for broadcasting LGBTI content.
Note In August,
a concert to be given by the singer Gökçe was banned by the mayor
of Sandıklı because she had expressed her support for LGBTI persons
by posting “love is love” on social media.
Note
56. The violent attack on the screening of LGBTI films in Banja
Luka,
Note Bosnia and Herzegovina, on 17 March
2023, was strongly condemned by the Commissioner for Human Rights
of the Council of Europe. The authorities responded to threats of
violence by banning the event instead of ensuring its safety and
thereby adequately protecting LGBTI person's freedoms of assembly
and expression.
57. In Poland, more than 100 municipal or regional councils have
adopted anti-LGBTI resolutions in recent years.
Note Most of
these resolutions, although annulled by the courts, are still in
force.
58. The destruction of rainbow flags and other LGBTI symbols should
also be mentioned. In 2023, flags were damaged or destroyed in Germany,
Bulgaria, Finland, Iceland and the Netherlands, among other countries.
In 2023 in Spain, the far-right Vox party banned the LGBTI flag
on public buildings in the city of Naguera.
59. Restrictions on gender expression can also affect freedom
of expression. In some countries, it is impossible to express gender
identity freely and without fear.
60. I would also like to express my concern about the rise of
transphobic rhetoric in Europe. According to Claire Vandendriessche,
“the French media landscape is awash with transphobic opinions,
and this has repercussions on health care and the school environment.”
She also pointed out that “transgender minors are the main targets,
but attacks on all transgender people are increasing and also extend,
for example, to complaints about the presence of children's books
featuring LGBTI characters in public libraries.” I have also received
worrying information about transphobic hate speech in Spain and
the United Kingdom. Some LGBTI rights organisations have ended their
activities in relation to transgender people due to a large number
of threats, or have chosen to keep quiet about them.
6 Strategic
lawsuits against public participation (SLAPPs)
61. In a number of countries, LGBTI
organisations are also repeatedly subjected to abusive criminal, administrative
or civil proceedings that have the effect (and even the aim) of
preventing them from carrying out their work. These are strategic
lawsuits against public participation (“SLAPPs”), the aim of which
is to silence individuals or organisations that speak out to raise
public awareness of issues of public interest or report on them.
Our colleague Stefan Schennach (Austria, Soc) was rapporteur on
this subject for the Committee on Culture, Science, Education and
Media and his report was discussed during the January 2024 part-session.
Note
62. SLAPPs are attempts to deter civil society, journalists and
human rights defenders from engaging in activism or expressing themselves
by forcing them to participate in expensive, time-consuming and
resource-draining legal proceedings. These proceedings have a deterrent
effect that disrupts and hampers their efforts to contribute to
the expression of dissident opinions or highlight human rights violations.
63. Abusive litigation against defenders of the rights of LGBTI
persons and their associations infringe their freedom of expression,
association and assembly. SLAPPs undermine the democratic principles
of freedom of expression and assembly and erode the foundations
of an open and democratic society.
Note
64. In Poland, in 2021, three activists expressed their concern
at the increase in anti-LGBTI hate by publishing a representation
of the Virgin Mary with a rainbow halo. They were charged with “offending
religious beliefs”, which could have led to a two-year prison sentence.
Note The activists were
acquitted at first instance, but prosecutors challenged the decision
in the Court of Appeal. In January 2022, the Court of Appeal dismissed the
case. This highlighted how the judicial system can be used to target
human rights defenders.
65. Atlas of Hate is a Polish civil society organisation that
monitors and disseminates information about resolutions passed by
local governments in Poland which discriminate against the LGBTI
community.
Note The organisation gathers data on
resolutions which declare “LGBT ideology”-free zones and resolutions
linked to the “Family Rights Charter”, which is used to “protect”
so-called traditional family values as a response to initiatives/attempts
to promote and protect LGBTI rights in Poland. Multiple defamation
cases have been brought against this organisation by several local
governments. The United Nations Special Rapporteur on the situation
of human rights defenders and other United Nations experts wrote
to the Polish Government to voice their concern,
Note followed
by a number of exchanges of correspondence.
Note The aim of these
legal actions was to silence the organisation through abusive court
proceedings.
66. In 2019, the European Court of Human Rights found that an
LGBTI organisation’s right to freedom of association had been breached
by its non-registration by the authorities.
Note Associations such as this are vital as
they give LGBTI persons a voice and enable them to express their
identity and defend their rights.
7 Online
hate attacks, self-censorship and instrumentalisation
67. Many LGBTI activists are targeted
by online hate attacks. Repeated, violent and aggressive, these attacks
can lead to the closure of a social media account or fewer postings
by the person who is attacked, as they engage in a kind of self-censorship
in order to protect their mental health. They feel rejected and endangered
and can seek refuge in anonymity. The low number of convictions
for online hate speech has repercussions for the exercise of freedom
of expression.
68. The issue of LGBTI rights has also been instrumentalised during
election campaigns. During the current affairs debate held in the
Assembly in October 2022, our colleague Max Lucks (Germany, SOC)
underlined that “Lesbians, gays, bisexuals and trans people are
not playthings for autocrats. They are human beings – human beings
with inalienable rights … When LGBTI people are free, society is
free.”
Note
69. The Commissioner for Human Rights of the Council of Europe
has also highlighted the risk of manipulation involving LGBTI rights.
“Some politicians are instrumentalising existing societal prejudices
and verbally attacking LGBTI people to achieve political objectives
for their own benefit (…) the exploitation of societal homo/transphobia
has proven a convenient way to divert public attention away from
government failure to address pressing social issues and rising
inequalities and broader attacks under way on human rights and democracy.”
She also noted an increase in the influence of anti-gender movements
in political circles.
Note
70. Over the last few years, laws restricting freedom of expression
and assembly have been passed in the Russian Federation. We have
witnessed a rise in foreign interference targeting LGBTI rights,
particularly during election campaigns.
8 Protecting
the freedom of expression and freedom of assembly of LGBTI persons
71. The aim of restricting the
freedom of expression and assembly of LGBTI persons is to make them invisible.
This desire stems from an anti-LGBTI climate which develops in a
context of mistrust of human rights.
Note Combating
disinformation and exploitation of the issue of LGBTI rights should
therefore be a priority. LGBTI persons are not a threat to families.
LGBTI rights do not take anything away from women’s rights. In fact,
LGBTI rights defenders are often vigorous champions of women’s rights.
However, in countries ruled by undemocratic regimes, these rights
are among the first to be attacked and the place of LGBTI persons
in the public space is challenged.
72. It is our duty to call on the member States to implement judgments
of the European Court of Human Rights, particularly in relation
to these issues, in order to ensure that the rights and freedoms
of everyone, including LGBTI persons, are respected.
73. Political decision makers and religious leaders bear an undeniable
responsibility and can contribute to a climate of hatred. Clear
and strong political support for the battle against all forms of
discrimination is vital. Participation in the Parliamentary Platform
for the rights of LGBTI persons in Europe should be encouraged.
74. Freedom of expression must be protected at all levels, including
in schools. To combat prejudice and discrimination, it is important
to support programmes of sex and emotional education that is inclusive
of LGBTI identities. Valuing and respecting diversity will enable
our societies to move forward. Campaigns raising awareness of LGBTI
rights can have a positive effect and help to counter hatred.
75. Law enforcement officers must be trained to fulfil their duty
to protect demonstrations and other events, investigate complaints
of physical and online violence and welcome people in all their
diversity.
76. Anti-LGBTI hate is amplified in an online context. Websites
should be held to account for failing to moderate or inadequately
moderating hateful remarks, which can have tragic consequences.
77. The situation of LGBTI persons in the Russian Federation is
particularly worrying now that the Supreme Court has decided to
class the LGBTI movement as an extremist movement. One concrete
form of support for them would be to grant asylum to LGBTI applicants
who leave the country in order to live in safety.
78. I am deeply concerned about discrimination and violence against
transgender people. I therefore wish to recommend that a report
specifically on this subject be prepared by the Committee on Equality
and Non-Discrimination. Legal recognition of gender identity is
a fundamentally important step in the advancement of LGBTI rights
and should be recommended. It should be done in a timely, transparent
and accessible manner.
79. Graeme Reid, the United Nations Independent Expert on protection
against violence and discrimination based on sexual orientation
and gender identity, is currently preparing a report on the freedom
of expression of LGBTI persons around the world. He plans to present
this report to the United Nations Human Rights Council in June 2024.
The Parliamentary Platform for the rights of LGBTI persons in Europe
could consider inviting him to present his work in the autumn of
2024 and discuss the development of co-operation between our organisations
in this regard. He has expressed concern at the proliferation of
laws intended to restrict the freedom of expression of LGBTI rights
organisations. Concrete co-operation with the Council of Europe’s Committee
of Experts on Sexual Orientation, Gender Identity and Expression
and Sex Characteristics (ADI-SOGIESC), which is commencing its work
this year, could also be instituted.
9 Conclusions
80. In recent years, there have
been many situations where the freedom of expression and freedom
of assembly of LGBTI persons have not been guaranteed in Europe
owing to the banning of events, the repression of demonstrations
by law enforcement authorities, ever more administrative hurdles,
the lack of protection against attacks on gatherings, or the enactment
of laws preventing the dissemination of information about LGBTI
rights. There have also been harassment and intimidation strategies
accompanied by anti-LGBTI hate speech.
81. Repression and a lack of protection can be regarded as green
lights for an increase in violence perpetrated by third parties.
A State cannot claim to be truly democratic if LGBTI rights are
not respected in it. LGBTI persons should be able to expect protection
from law enforcement authorities. Attacks on freedom of expression
and assembly can have long-term impacts, especially on the younger
generations.
82. Dunja Mijatović
, the
Commissioner for Human Rights of the Council of Europe, has underlined
that “Freedom of peaceful assembly and of expression stand at the
core of a free, inclusive and pluralist democracy, where everyone
can enjoy their human rights equally and safely, and societal issues
are discussed through peaceful dialogue.”
Note
83. Many LGBTI persons continue to remain silent because of the
shame imposed on them by society. This enforced silence can have
tragic consequences. All too often, LGBTI persons are driven to
suicide. No matter how much societies torture, imprison, “convert”
or try to eliminate LGBTI persons, there will always be LGBTI persons.
By accepting everyone and protecting diversity we will all progress.
To protect LGBTI rights is to protect the dignity of every person,
the right to live without hiding, the right to love and the right
to exist.
