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

(Adopted by the Committee of Ministers on 31 March 2010
at the 1081st meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of

the Council of Europe,Considering that the aim of the Council of Europe is

 to achieve a greater unity between its members, and that this aim may

 be pursued, in particular, through common action in the field of human rights;

Recalling that human rights are universal and shall apply to all

individuals, and stressing therefore its commitment to guarantee the equal

dignity of all human beings and the enjoyment of rights and freedoms of all

individuals without discrimination on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social origin, association with a national

minority, property, birth or other status, in accordance with the Convention for the

Protection of Human Rights and Fundamental Freedoms(ETS No. 5)

(hereinafter #referred to as “the Convention”) and its protocols;

Recognising that non-discriminatory treatment by state actors, as well as,

where appropriate, positive state measures for protection against discriminatory

treatment, including by non-state actors, are fundamental components of the

international system protecting human rights and fundamental freedoms;

Recognising that lesbian, gay, bisexual and transgender persons have been

for centuries and are still subjected to homophobia, transphobia and

other forms of intolerance and discrimination even within their family – including

criminalisation, marginalisation, social exclusion and violence – on grounds

of sexual orientation or gender identity, and that specific action is required in

order to ensure the full enjoyment of the human rights of these persons;

Considering the case law of the European Court of Human Rights

(“hereinafter referred to as “the Court”) and of other international jurisdictions,

which consider sexual orientation a prohibited ground for discrimination and have

 contributed to the advancement of the protection of the rights of transgender persons;

Recalling that, in accordance with the case law of the Court, any difference in

treatment, in order not to be discriminatory, must have an objective and reasonable

justification, that is, pursue a legitimate aim and employ means which are

reasonably proportionate to the aim pursued;

Bearing in mind the principle that neither cultural, traditional nor religious values,

nor the rules of a “dominant culture” can be invoked to justify hate speech or

any other form of discrimination, including on grounds of sexual orientation or gender

 identity; Having regard to the message from the Committee of Ministers to

steering committees and other committees involved in intergovernmental

co-operation at the Council of Europe on equal rights and dignity of all human

beings, including lesbian, gay, bisexual and transgender persons, adopted on

2 July 2008, and its relevant recommendations;

Bearing in mind the recommendations adopted since 1981 by the Parliamentary

Assembly of the Council of Europe regarding discrimination on grounds of sexual

orientation or gender identity, as well as Recommendation 211 (2007) of the

Congress of Local and Regional Authorities of the Council of Europe on

“Freedom of assembly and expression for lesbians, gays, bisexuals and

transgendered persons”;

Appreciating the role of the Commissioner for Human Rights in monitoring the situation

of lesbian, gay, bisexual and transgender persons in the member states with respect

to discrimination on grounds of sexual orientation or gender identity;

Taking note of the joint statement, made on 18 December 2008 by 66 states at

 the United Nations General Assembly, which condemned human rights violations

 based on sexual orientation and gender identity, such as killings, torture, arbitrary

 arrests and “deprivation of economic, social and cultural rights, including the right to

health”;

Stressing that discrimination and social exclusion on account of sexual orientation or

gender identity may best be overcome by measures targeted both at those who

experience such discrimination or exclusion, and the population at large,

Recommends that member states:

1. examine existing legislative and other measures, keep them under review, and

collect and analyse relevant data, in order to monitor and redress any direct or

indirect discrimination on grounds of sexual orientation or gender identity;

2. ensure that legislative and other measures are adopted and effectively

implemented to combat discrimination on grounds of sexual orientation or

gender identity, to ensure respect for the human rights of lesbian, gay, bisexual

 and transgender persons and to promote tolerance towards them;

3. ensure that victims of discrimination are aware of and have access to effective legal

 remedies before a national authority, and that measures to combat discrimination

include, where appropriate, sanctions for infringements and the provision of adequate

reparation for victims of discrimination;

4. be guided in their legislation, policies and practices by the principles and measures

contained in the appendix to this recommendation;

5. ensure by appropriate means and action that this recommendation, including its

appendix, is translated and disseminated as widely as possible.

Appendix to Recommendation CM/Rec(2010)5

I. Right to life, security and protection from violence

A. “Hate crimes” and other hate-motivated incidents

1. Member states should ensure effective, prompt and impartial investigations into

 alleged cases of crimes and other incidents, where the sexual orientation or

gender identity of the victim is reasonably suspected to have constituted a motive

 for the perpetrator; they should further ensure that particular attention is paid to

the investigation of such crimes and incidents when allegedly committed by

 law-enforcement officials or by other persons acting in an official capacity, and that

 those responsible for such acts are effectively brought to justice and, where

appropriate, punished in order to avoid impunity.

2. Member states should ensure that when determining sanctions, a bias motive

related to sexual orientation or gender identity may be taken into account as an

aggravating circumstance.

3. Member states should take appropriate measures to ensure that victims and

witnesses of sexual orientation or gender identity related “hate crimes” and

other hate-motivated incidents are encouraged to report these crimes and

incidents; for this purpose, member states should take all necessary steps

to ensure that law-enforcement structures, including the judiciary, have the

necessary knowledge and skills to identify such crimes and incidents and

provide adequate assistance and support to victims and witnesses.

4. Member states should take appropriate measures to ensure the safety and

dignity of all persons in prison or in other ways deprived of their liberty,

lesbian, gay, bisexual and transgender persons, and in particular take

protective measures against physical assault, rape and other forms of sexual

abuse, whether committed by other inmates or staff; measures should be taken

so as to adequately protect and respect the gender identity of transgender persons.

5. Member states should ensure that relevant data are gathered and analysed on

the prevalence and nature of discrimination and intolerance on grounds of sexual

orientation or gender identity, and in particular on “hate crimes” and hate-motivated

incidents related to sexual orientation or gender identity.

B. “Hate speech”

6. Member states should take appropriate measures to combat all forms of expression,

including in the media and on the Internet, which may be reasonably understood as likely

to produce the effect of inciting, spreading or promoting hatred or other forms of

discrimination against lesbian, gay, bisexual and transgender persons. Such

“hate speech” should be prohibited and publicly disavowed whenever it occurs. All

measures should respect the fundamental right to freedom of expression in accordance

 with Article 10 of the Convention and the case law of the Court.

7. Member states should raise awareness among public authorities and public

institutions at all levels of their responsibility to refrain from statements, in particular

 to the media, which may reasonably be understood as legitimising such hatred or

discrimination.

8. Public officials and other state representatives should be encouraged to promote

tolerance and respect for the human rights of lesbian, gay, bisexual and transgender

persons whenever they engage in a dialogue with key representatives of the civil

society, including media and sports organisations, political organisations and religious

communities.

II. Freedom of association

9. Member states should take appropriate measures to ensure, in accordance with

Article 11 of the Convention, that the right to freedom of association can be

effectively enjoyed without discrimination on grounds of sexual orientation or

gender identity; in particular, discriminatory administrative procedures, including

excessive formalities for the registration and practical functioning of associations,

be prevented and removed; measures should also be taken to prevent the abuse

of legal and administrative provisions, such as those related to restrictions based on

public health, public morality and public order.

10. Access to public funding available for non-governmental organisations

should be secured without discrimination on grounds of sexual orientation or gender

identity.

11. Member states should take appropriate measures to effectively protect defenders

of human rights of lesbian, gay, bisexual and transgender persons against hostility

and aggression to which they may be exposed, including when allegedly committed

by state agents, in order to enable them to freely carry out their activities in accordance

 with the Declaration of the Committee of Ministers on Council of Europe action to

improve the protection of human rights defenders and promote their activities.

12. Member states should ensure that non-governmental organisations defending the

human rights of lesbian, gay, bisexual and transgender persons are appropriately

consulted on the adoption and implementation of measures that may have an

impact on the human rights of these persons.

III. Freedom of expression and peaceful assembly

13. Member states should take appropriate measures to ensure, in accordance with

Article 10 of the Convention, that the right to freedom of expression can be

effectively enjoyed, without discrimination on grounds of sexual orientation or

gender identity, including with respect to the freedom to receive and impart information

on subjects dealing with sexual orientation or gender identity.

14. Member states should take appropriate measures at national, regional and local levels

 to ensure that the right to freedom of peaceful assembly, as enshrined in Article 11 of

 the Convention, can be effectively enjoyed, without discrimination on grounds of

sexual orientation or gender identity.

15. 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.

16. Member 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.

17. Public authorities at all levels should be encouraged to publicly condemn, notably in

the media, any unlawful interferences with the right of individuals and groups of

individuals to exercise their freedom of expression and peaceful assembly, notably

when related to the human rights of lesbian, gay, bisexual and transgender persons.

IV. Right to respect for private and family life

18. Member states should ensure that any discriminatory legislation criminalising

-sex sexual acts between consenting adults, including any differences with respect

to the age of consent for same-sex sexual acts and heterosexual acts, are

repealed; they should also take appropriate measures to ensure that criminal law

provisions which, because of their wording, may lead to a discriminatory

application are either repealed, amended or applied in a manner which is

compatible with the principle of non-discrimination.

19. Member states should ensure that personal data referring to a person’s

sexual orientation or gender identity are not collected, stored or otherwise used

by public institutions including in particular within law-enforcement structures,

except where this is necessary for the performance of specific, lawful and legitimate

purposes; existing records which do not comply with these principles should be destroyed.

20. Prior requirements, including changes of a physical nature, for legal recognition of

a gender reassignment, should be regularly reviewed in order to remove abusive

requirements.

21. Member states should take appropriate measures to guarantee the full legal

recognition of a person’s gender reassignment in all areas of life, in particular by

making possible the change of name and gender in official documents in a quick,

and accessible way; member states should also ensure, where appropriate, the

 corresponding recognition and changes by non-state actors with respect to key

documents, such as educational or work certificates.

22. Member states should take all necessary measures to ensure that, once

gender reassignment has been completed and legally recognised in accordance

with paragraphs 20 and 21 above, the right of transgender persons to marry a

person of the sex opposite to their reassigned sex is effectively guaranteed.

23. Where national legislation confers rights and obligations on unmarried

couples, member states should ensure that it applies in a non-discriminatory way

to both same-sex and different-sex couples, including with respect to survivor’s

pension benefits and tenancy rights.

24. Where national legislation recognises registered same-sex partnerships,

member states should seek to ensure that their legal status and their rights

and obligations are equivalent to those of heterosexual couples in a comparable

situation.

25. Where national legislation does not recognise nor confer rights or

obligations on registered same-sex partnerships and unmarried couples,

member states are invited to consider the possibility of providing, without

discrimination of any kind, including against different sex couples, same-sex

couples with legal or other means to address the practical problems related to

the social reality in which they live.

26. Taking into account that the child’s best interests should be the primary

consideration in decisions regarding the parental responsibility for, or

guardianship of a child, member states should ensure that such decisions

 are taken without discrimination based on sexual orientation or gender identity.

27. Taking into account that the child’s best interests should be the primary

consideration in decisions regarding adoption of a child, member states

whose national legislation permits single individuals to adopt children

should ensure that the law is applied without discrimination based on sexual

orientation or gender identity.

28. Where national law permits assisted reproductive treatment for single women,

member states should seek to ensure access to such treatment without

discrimination on grounds of sexual orientation.

V. Employment

29. Member states should ensure the establishment and implementation of

appropriate measures which provide effective protection against discrimination

on grounds of sexual orientation or gender identity in employment and

occupation in the public as well as in the private sector. These measures

 should cover conditions for access to employment and promotion, dismissals,

pay and other working conditions, including the prevention, combating and

punishment of harassment and other forms of victimisation.

30. Particular attention should be paid to providing effective protection of

the right to privacy of transgender individuals in the context of employment,

in particular regarding employment applications, to avoid any irrelevant

disclosure of their gender history or their former name to the employer and

other employees.

VI. Education

31. Taking into due account the over-riding interests of the child, member

states should take appropriate legislative and other measures, addressed

 to educational staff and pupils, to ensure that the right to education

can be effectively enjoyed without discrimination on grounds of sexual orientation

or gender identity; this includes, in particular, safeguarding the right of children

and youth to education in a safe environment, free from violence, bullying,

social exclusion or other forms of discriminatory and degrading treatment related

to sexual orientation or gender identity.

32. Taking into due account the over-riding interests of the child, appropriate

measures should be taken to this effect at all levels to promote mutual

tolerance and respect in schools, regardless of sexual orientation or gender

identity. This should include providing objective information with respect to sexual

 orientation and gender identity, for instance in school curricula and educational

materials, and providing pupils and students with the necessary information,

protection and support to enable them to live in accordance with their sexual

orientation and gender identity. Furthermore, member states may design and

implement school equality and safety policies and action plans and may

ensure access to adequate anti-discrimination training or support and teaching

aids. Such measures should take into account the rights of parents regarding education

of their children.

VII. Health

33. Member states should take appropriate legislative and other measures

to ensure that the highest attainable standard of health can be effectively

enjoyed without discrimination on grounds of sexual orientation or gender

identity; in particular, they should take into account the specific needs of lesbian,

gay, bisexual and transgender persons in the development of national health

plans including suicide prevention measures, health surveys, medical curricula,

 training courses and materials, and when monitoring and evaluating the quality of

health-care services.

34. Appropriate measures should be taken in order to avoid the classification of

homosexuality as an illness, in accordance with the standards of the World Health

Organisation.

35. Member states should take appropriate measures to ensure that transgender

 persons have effective access to appropriate gender reassignment services,

including psychological, endocrinological and surgical expertise in the field of

transgender health care, without being subject to unreasonable requirements;

no person should be subjected to gender reassignment procedures without his

or her consent.

36. Member states should take appropriate legislative and other measures to

ensure that any decisions limiting the costs covered by health insurance for

gender reassignment procedures should be lawful, objective and proportionate.

VIII. Housing

37. Measures should be taken to ensure that access to adequate housing can be

effectively and equally enjoyed by all persons, without discrimination on grounds

of sexual orientation or gender identity; such measures should in particular seek

 to provide protection against discriminatory evictions, and to guarantee equal

 rights to acquire and retain ownership of land and other property.

38. Appropriate attention should be paid to the risks of homelessness faced

by lesbian, gay, bisexual and transgender persons, including young persons and

children who may be particularly vulnerable to social exclusion, including from their

own families; in this respect, the relevant social services should be provided

on the basis of an objective assessment of the needs of every individual, without

discrimination.

IX. Sports

39. Homophobia, transphobia and discrimination on grounds of sexual orientation

 or gender identity in sports are, like racism and other forms of discrimination,

unacceptable and should be combated.

40. Sport activities and facilities should be open to all without discrimination

on grounds of sexual orientation or gender identity; in particular, effective

measures should be taken to prevent, counteract and punish the use of

discriminatory insults with reference to sexual orientation or gender identity

during and in connection with sports events.

41. Member states should encourage dialogue with and support sports

associations and fan clubs in developing awareness-raising activities

regarding discrimination against lesbian, gay, bisexual and transgender

persons in sport and in condemning manifestations of intolerance towards

them.

X. Right to seek asylum

42. In cases where member states have international obligations in this respect,

they should recognise that a well-founded fear of persecution based on sexual

orientation or gender identity may be a valid ground for the granting of refugee

and asylum under national law.

43. Member states should ensure particularly that asylum seekers are not sent

to a country where their life or freedom would be threatened or they face the risk

of torture, inhuman or degrading treatment or punishment, on grounds of sexual

orientation or gender identity.

44. Asylum seekers should be protected from any discriminatory policies or

 practices on grounds of sexual orientation or gender identity; in particular,

appropriate measures should be taken to prevent risks of physical violence,

including sexual abuse, verbal aggression or other forms of harassment against

asylum seekers deprived of their liberty, and to ensure their access to i

nformation relevant to their particular situation.

XI. National human rights structures

45. Member states should ensure that national human rights structures are

clearly mandated to address discrimination on grounds of sexual orientation or

 gender identity; in particular, they should be able to make recommendations

on legislation and policies, raise awareness amongst the general public, as

well as – as far as national law so provides – examine individual complaints

 regarding both the private and public sector and initiate or participate in court

proceedings

XII. Discrimination on multiple grounds

46. Member states are encouraged to take measures to ensure that legal

provisions in national law prohibiting or preventing discrimination also protect

against discrimination on multiple grounds, including on grounds of sexual

orientation or gender identity; national human rights structures should have

a broad mandate to enable them to tackle such issues.

 

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