ECHR : “ Gender Identity ” Protected Against Discrimination
European Court of Human Rights: “ Gender Identity ” Protected Against Discrimination
In a judgment delivered on May 12, 2015, Identoba and Others v. Georgia the European Court of Human Rights ( ECHR ) clarified that all trans people are protected against discrimination on grounds of gender identity under art. 14 of the Convention ( ECHR ). This is an important and awaited step.
On the occasion of the International Day against Homo- and Transphobia ( IDAHOT ) , Georgian activists held a peaceful march on May 17, 2012, in Tbilisi. When counter-demonstrators were attacking them, brutally assaulting and beating them, the police failed to protect the activists adequately. Therefore, the ECtHR condemned Georgia for degrading and inhuman treatment in a discriminatory manner ( art. 14 in conjunction with art. 3 ECHR ). The court says clearly that especially in a homo- and transphobic society the state has a “compelling positive obligation” to protect the LGBT community against such ( foreseeable ) discriminatory inhuman and degrading treatment and if such attacks happen it has to unmask the discriminatory motive behind the violence and brutality. For the whole LGBT community this is a significant judgment.
For the trans community, the judgement includes another highly welcomed aspect. Already in 2010, the ECHR said that “transsexuals” are entitled to the enjoyment of the human rights enshrined in the Convention without discrimination ( P.V. v. Spain ). While this was important it came with a lack of clarity whether all trans people enjoy such protection or only “transsexuals” in the sense of those who underwent gender reassignment treatment. With the Identoba judgment, the court clarifies explicitly that all trans people are protected on the ground of “gender identity”: “ ( … ) the Court reiterates that the prohibition of discrimination under Article 14 of the Convention duly covers questions related to sexual orientation and gender identity ( … ).”