How to make the European Council Recommendations on measures to combat discrimination on grounds of sexual orientation or gender identity work for you

Brief guidance note prepared by Inesita da Silva [1] on April 12th, 2010.

Prof. Stephen Whittle, Chair of the Board and Steering Committee of TransGender Europe calls on activists to "use it as a tool to call their own governments to account." Nigel Warner, ILGA-Europe’s Council of Europe adviser encourages “human rights defenders… to use [the recommendations] in challenging their governments to stand by the principles which they have agreed, and to promote the measures which they have put their names to.”

What’s it all about?
The Council of Europe has two categories of legal instruments. There are “Conventions” which are legally binding. And there are non-binding “Recommendations.” The recommendations are a so-called "soft law."  You cannot take any Member State to court (either a domestic one or the European Court of Human Rights in Strasbourg) for not fulfilling any of the recommendations. However, transgender activitists can lobby for the adoption of corresponding measures similar to those identified within the document in their own member states.

A lobbying success!
The fact that the recommendations were even adopted at all demonstrates a real success for lobby groups which includes lesbian, gay, bisexual and transgender (LGBT) human rights activists in central, eastern and south-eastern Europe collaborating together with The Office of the Human Rights Commissioner, the Swedish government and the Secretariat of the Council of Europe’s Committee of Ministers. Valuable contributions were also made by NGO observers that joined the expert committee founded to develop the draft including:
            - Transgender Europe;
            - Amnesty International;
            - Human Rights Watch; and
            - ILGA-Europe.
Despite enormous pressure, with very limited time, limitations on the length of the document, and unhelpful opposition, sometimes even from supposedly friendly states, ultimately a unanimous agreement was reached by the 47 states that belong to the Council of Europe. (Nigel Warner)

Making the recommendations work for you..
A corresponding Explanatory Memorandum demonstrating how member states can go about adopting related measures has been released and makes a useful starting point. Activists and lobby groups are encouraged to consider assisting their governments and supporting them wherever possible in this work.

However, NGOs can also “monitor” the actions of their governments to see if they are delivering on what they’ve signed up for. Although the Committee of Ministers within the Council of Europe will review progress in the implementation of the recommendations in three years time (and it’s likely every three-years thereafter), lobby groups can undertake their own performance monitoring too. There are already plenty of successful examples in other fields to draw upon (see for instance: Washington-based watchdog organisation, Freedom House’s 2010 assessment of women’s rights here (69kb pdf download) and “scorecard” reports like this one by Greenpeace which are common and popular means to “name and shame” those under observation.

Although legal channels of recourse are not yet available (unless you choose to challenge on the grounds of the Convention for the Protection of Human Rights and Fundamental Freedoms itself which ultimately might be impracticable given the limited scope of that document towards transgender rights), once domestic legislation has been adopted in member states, citizens will be within their rights to “bring their governments to book” for non-compliance.

Long term outlook
In the longer term, these recommendations could become a protocol to the Convention on Human Rights - or even a Convention in their own right. This could be an area for European transgender lobby groups to follow up. Nigel Warner suggested two areas worth focusing on: First, pacifying the more ‘hostile’ countries (e.g. the Russian Federation, the Holy See or Vatican City) towards the recommendations through lobbying and awareness raising. Second, working with the European Court of Human Rights to extend and consolidate its jurisprudence in all areas relating to sexual orientation and gender identity. This would help ensure a more robust Convention that will have the court’s full support, which ultimately will result in more successful appeals and complaints proceedings for those wishing to bring a case to court.

Useful Links:
- Recommendations 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)
- Explanatory Memorandum (CM(2010)4add3rev2) related to the above recommendations.
- European Court of Human Rights
- Council of Europe
- Full text of the Convention for the Protection of Human Rights and Fundamental Freedoms
- Make It Work: Six steps to effective LGBT human rights advocacy (1.1 Mb, 176pg PDF manual published by ILGA Europe).
- The Activist's Guide to the Yogyakarta Principles (2.5 Mb, 75pgs pdf toolkit published in English and Spanish regarding 29 principles relating to sexual orientation and gender identity).

[1] Inésita's male persona has worked with civil society for over 15 years, most recently organising a series of ‘Master Class’ training courses in 2008 for NGOs in the Western Balkans on key functions such as lobbying, watchdogging and legal recourse.