LGBTI Rights before the European Court of Human Rights: One Step at a Time

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Last Update 8 January 2014

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In a paper issued today, FIDH examines key cases from the European Court of Human Rights (ECtHR), concerning breaches of the rights of lesbian, gay, bisexual, transexual, transgender and intersex (LGBTI) persons, and how these cases have influenced the development of legislation in Council of Europe Member States. This position paper reaffirms the importance of the principles of equity and non-discrimination based on sexual orientation, and calls upon the ECtHR to continue its contribution to the advances of LGBTI rights, and upon Member States to incorporate the Court’s decisions into national legislation.

The ECtHR is increasingly led to examine and deliver decisions on breaches of LGBTI rights in Member States of the Council of Europe. Facing inequalities in status and rights, discrimination, intimidation, persecution and other ill treatments, LGBTI persons are turning to the ECtHR to see their rights recognised and obtain justice. Since 2005, FIDH, through the mechanism of the third-party intervention (« amicus curiae »), intervened in almost 15 cases to support the rights to equity and non-discrimination of LGBTI persons and contribute to the positive development of the Court’s jurisprudence.



"Every person is entitled to equal rights and treatment, regardless of his or her sexual orientation or gender identity. The European Court of Human Rights, in its recent decisions, enabled some important progress, in particular regarding adoption for same-sex couples. We call upon the Court to continue in this direction and to ensure that sexual orientation and gender identity cannot be grounds for discrimination nor persecution" , said Karim Lahidji, FIDH President.



Today, only 15 States in the world, among which 9 are found in Europe, have enabled same-sex couples to have access to civil marriage. 80 States, including one in Europe, continue to criminalise same-sex relations. "Under these conditions, clarification through jurisprudence or legislations, on the rights to equal treatment and non-discrimination remains critical and should be supported" , said Dan Van Raemdonck, FIDH Secretary General.



FIDH intervened as a third-party, alongside partner organisations, in particular ILGA-Europe and the International Commission of Jurists (ICJ), on various issues relating to LGBTI rights. It supported the access to adoption for LGBTI persons and underlined that the access to marriage or any other form of legal recognition of same-sex couples should be guaranteed without any form of discrimination. FIDH also welcomes the ECtHR position on the importance of the pinciple of non-discrimination on the grounds of sexual orientation in the work place.



Another issue at stake relating to LGBTI rights concerns the rights of asylum seekers. Each Council of Europe Member State has a specific approach to processing requests for asylum from persons who claim they run the risk of being persecuted on the grounds of their sexual orientation in their country of origin. It is important that the Court takes a position in favour of clear, precise and harmonised criteria to evaluate the asylum seeker’s risks of returning to his/her country of origin on the grounds of his/her sexual orientation.

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