New: Council of Europe Issue Paper on Human Rights and Gender Identity and Expression

18th March 2024

New: Council of Europe Issue Paper on Human Rights and Gender Identity and Expression

The Commissioner for Human Rights at the Council of Europe has published an updated Issue Paper on Human Rights and Gender Identity and Expression. This follows the 2009 Issue Paper of the same title by Thomas Hammarberg.

The Commissioner, Dunja Mijatovic, reflects that this report comes in the context of a backsliding in respect of human rights, where marginalised groups are increasingly used for political gain, and where well-organised and well-funded anti-gender movements are gaining traction. The Commissioner goes on to say that: “Anti-gender and anti-rights narratives ultimately undermine the rights of everyone, but their focus on so-called traditional norms around sex, gender and expression is particularly destructive of the rights of trans people”

The Issue Paper draws on country and thematic work carried out across the Commissioner’s six-year mandate, with an emphasis on her conversations with trans adults and youth, trans and LGBTI organisations and human rights defenders.

The paper addresses and reviews areas covered in the 2009 report but also addresses matters which have in more recent years become a flashpoint for hostile public debate. These areas include access to single-sex spaces, sport, access to toilets and the related hostile framing that trans people’s rights are a fundamental threat to women’s rights.

LEAP Sports welcome this report and in particular we welcome the addition and focus on the increasingly hostile environment surrounding the participation of trans people in sport and physical activity. The Issue Report notes 15 recommendations. In particular we want to highlight recommendation 9 which articulates a position in which we would expect sports governing bodies to start when considering changes to access of trans people.

Recommendation 9: “Adopt robust laws and policies to ensure that everyone can take part in sports without discrimination or harassment due to actual or perceived gender identity and gender expression. National policies governing participation in sports should start from a position where trans people can participate according to their gender identity. Ensure that any limitation or restriction on participating in sport according to gender identity pursues a legitimate aim, is proportionate, and respects international human rights standards”

As highlighted in the Issue Paper, the position in recommendation 9 is in line with the 2021 International Olympic Committee ”Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations”.

In Chapter 2.8, the Commissioner reiterates the position that the Revised European Sports Charter makes clear that access to sport for all is considered to be a fundamental right, as well as highlight the Council of Europe Recommendation CM/Rec(2010)5 on measures to Combat Discrimination on Grounds of Sexual Orientation or Gender Identity which underlines that sport activities and facilities should be open to all without discrimination on grounds of gender identity.

Regarding restrictions on participation based on gender identity the Commissioner said that beyond recreational sports, any restrictions should satisfy a strict human rights test and ”namely it [restrictions] should be determined in law, pursue a legitimate aim and be proportionate to that aim, i.e. it should be as specific as possible, introducing a case-by-case approach, go no further than required and accommodate trans inclusion where possible.”

We encourage partners to take the time to explore the Issue Paper in detail. In particular, we encourage you to take note of the section on Sport. You can access the full report here.

“Sport can play an important role in increasing respect for diversity, bringing about societal change, and fostering inclusion. It should not be used to reinforce prejudices against trans people.” Council of Europe, Commissioner for Human Rights, Dunja Mijatovic.

Written on 18th March 2024.