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IRIS 2010-0:1/6

Parliamentary Assembly

Texts Countering Discrimination on Basis of Sexual Orientation and Gender Identity

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Tarlach McGonagle

Institute for Information Law (IViR), University of Amsterdam

Following the lead of the Committee of Ministers of the Council of Europe (CM), the Parliamentary Assembly of the Council of Europe (PACE) recently turned its attention to countering discrimination on the basis of sexual orientation and gender identity. On 29 April 2010, it adopted its Resolution 1728 (2010) and Recommendation 1915 (2010), both entitled, “Discrimination on the basis of sexual orientation and gender identity”. Like the CM’s Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010 (see IRIS 2010-8: 1/3), the PACE texts also contain a number of provisions concerning freedom of expression, “hate speech” and the media.

PACE Resolution 1728(2010) regards “physical and verbal violence (hate crimes and hate speech)” and “undue restrictions” on freedom of expression, assembly and association as “major concerns” in the context of discrimination based on sexual orientation and gender identity (para. 3, but see also para. 6). It also identifies “hate speech by certain political, religious and other civil society leaders” and “hate speech” disseminated by the media or the Internet as being of “particular concern” (para. 7). It further “stresses that it is the paramount duty of all public authorities not only to protect the rights enshrined in human rights instruments in a practical and effective manner, but also to refrain from speech likely to legitimise and fuel discrimination or hatred based on intolerance” (ibid.).

These observations form the basis of a number of action lines for Member States of the Council of Europe, e.g. to ensure that the fundamental rights of lesbian, gay, bisexual and transgender (LGBT) people, including freedom of expression, are respected in accordance with international human rights standards (para. 16.1). Another example is that Member States should “condemn hate speech and discriminatory statements and effectively protect LGBT people from such statements while respecting the right to freedom of expression”, as guaranteed by the European Convention on Human Rights and the case-law it has engendered (para. 16.4). Finally, in this specific respect, Member States are called upon to “introduce or develop anti-discrimination and awareness-raising programmes fostering tolerance, respect and understanding of LGBT persons”, especially in targeted professions, including the media (para. 16.12).

PACE Recommendation 1915(2010), for its part, does not engage with substantive issues; instead, it is preoccupied with identifying institutional arrangements and procedural measures which could usefully advance the broader aims of both PACE texts and the CM Recommendation.

“Discrimination on the basis of sexual orientation and gender identity”, Resolution 1728 (2010), Parliamentary Assembly of the Council of Europe, 29 April 2010 EN
“Discrimination on the basis of sexual orientation and gender identity”, Recommendation 1915 (2010), Parliamentary Assembly of the Council of Europe, 29 April 2010 EN