7-1-2011By Sara Miller
Fighting Discrimination Program
Last week, Thomas Hammarberg, the Council of Europe’s commissioner for human rights, presented a report about “Discrimination on grounds of sexual orientation and gender identity in Europe.” Using data collected by public authorities, nongovernmental organizations, national human rights groups, and academic experts, the report examines the social and legal status of LGBT persons throughout the 47 member states.
The report evaluates six key markers––attitudes, legal standards & implementation, protection from violence, participation, privacy, education, and employment––to provide a comprehensive overview of the challenges faced by the European LGBT community.
The protection section zooms in on hate crime against LGBT persons in Europe, a key concern for Human Rights First. According to the report, many LGBT persons feel the need to hide their sexual orientation or gender identity because the “visibility of LGBT persons in public space is a common predictor fr homophobic and transphobic attacks.”
Although groups of young, right-wing leaning men are most often the perpetrators of LGBT hate crimes, the report also uncovered many cases of anti-LGBT violence or harassment committed by law enforcement officials. For example, in 2009 Azerbaijani police raided various LGBT bars, arresting some 50 people who were told that their sexual identities would be exposed if they refused to bribe the officers. Anti-LGBT violence is also a problem within families: Moldovan transgender persons reported curative beating attempts by their fathers, and lesbian and bisexual women in Georgia and Azerbaijan reported violent attacks by homophobic family members.
Although LGBT hate crime is rampant throughout the CoE member states, it is not properly documented—and as a result is rarely prosecuted effectively. Only fourteen member states list sexual orientation as an aggravating factor in common crimes, and only two member states enacted legislation that includes provisions with specific references to gender identity or transphobic hate crime. (Though many countries have a broad “social group” category under their hate crime legislation in which sexual orientation could possibly be included.)
A mere fifteen CoE states collect data on LGBT hate crime but use different methods of categorization, making it difficult to develop an overall picture of LGBT hate crime in Europe. Many LGBT victims feel uncomfortable reporting hate crimes for fear their sexual orientation will become public knowledge or because they lack confidence in law enforcement officials. There is a prevalent belief that that police officers are reluctant to acknowledge homophobic intent when investigating crimes and write off incidents as “hooliganism.” Surveys show that only 23 percent of anti-LGBT hate crimes are reported in the United Kingdom, and in Poland that number is even lower, with only 15 percent of crimes of a homophobic nature being reported.
The plight of LGBT refugees is also discussed in the commissioner’s report. Although thirty-three member states acknowledge persecution due to sexual orientation as a legitimate asylum claim, LGBT refugees—forced to flee their home countries due to discrimination or threat of violence—often struggle to prove the validity of their cases. Claims made by refugees escaping countries that criminalize homosexuality are assessed by “the nature of the legislation and its potential impact on the safety and life of the applicant.” The report emphasizes that the existence of such discriminatory laws poses a threat to LGBT persons, regardless of the effectiveness of their implementation. However, certain member states believe that LGBT persons can “live discreetly,” effectively keeping their sexual orientation or gender identity a secret in order to avoid persecution. This would, however, deny members of the LGBT community their right to freedom of expression, forcing them to live in constant fear of being “outed.” This “discreet living” also complicates asylum claims of LGBT individuals who are not able to demonstrate the full extent of discrimination and repressions in their home countries. Furthermore, several European countries use degrading tests to verify an asylum seeker’s sexual orientation. The Czech Republic has used phallometric testing in the past to determine whether or not male refugees were in fact homosexual.
The commissioner offered numerous recommendations to improve of the safety of LGBT persons within the 47 member states of the Council of Europe. Mr. Hammarberg’s study emphasizes that bias against a person’s sexual orientation or gender identity should be considered an aggravating circumstance when a crime is committed, and advocated for more effective investigations of anti-LGBT incidents. The report also asked that persecution due to sexual orientation or gender identity be considered genuine grounds for asylum within the member states.
Read more: Human Rights First’s report card for hate crime laws in Europe and North America.