End of mission statement
The mandate of UN Independent Expert on the protection against violence and discrimination based on sexual orientation and gender identity was established by the United Nations Human Rights Council resolution 32/2 in 2016. This mandate is the result of the community of nations’ awareness about the intolerance, discrimination and particularly egregious abuses against the lesbian, gay, bisexual, and transgender (LGBT) community, as documented in two reports produced in 2011 and 2015 by the High Commissioner for Human Rights.
I visited Georgia from 24 September to 5 October 2018 with a view to assessing the implementation of existing national and international human rights standards to combat violence and discrimination against LGBT people in the country. During my visit I travelled to Tbilisi, Kutaisi and Batumi where I met with representatives of the executive, legislative and judicial branches, local authorities, and the Public Defender’s Office. I also visited one shelter for victims of violence, one centre for information and counselling on reproductive health, and one clinic providing gender affirmation surgeries. In the context of my visit, I have not been able to assess the situation in Abkhazia, Georgia, and the Tskhinvali region/South Ossetia, Georgia. I was therefore no able to study the human rights situation of lesbian, gay, bisexual and trans people in these regions, as well as challenges they face.
I would like to warmly thank the Government of Georgia for the invitation extended to me to conduct this visit and for its excellent cooperation before and during the visit, during which I have not only benefited from the legendary Georgian hospitality, but also from the exceptional professionalism and dedication of all Governmental agencies involved in the organisation and execution of the visit.
I was also thankful to have an opportunity to discuss at great length with high-level representatives of the Patriarchate of the Georgian Orthodox Church and other religious denominations, including the Mufti of All Muslims of Georgia and the Chairman of the Jewish Council of Georgia. Despite differences of opinion, I am encouraged that during all of these meetings we identified a basic common ground: violence and discrimination on the basis of sexual orientation and gender identity are never justified and must be condemned and discouraged. I was also thankful to hear, from all interlocutors, their willingness to continue a conversation toward learning how to create spaces of peaceful and respectful coexistence. When creating Resolution 32/2, the community of nations requested that dialogue be one of the guiding principles for my mandate, and I am delighted to have been able to deploy this approach so actively during this visit.
I also had the privilege of meeting with a number of civil society organisations working in this field, whose professionalism and dedication I would like to acknowledge. They showed great generosity in sharing their knowledge and opinions and facilitated contacts with dozens of members of the LGBT community who, in their turn, shared their life experiences with me.
To everyone who met with me, I want to express my gratitude for their readiness to engage in an open and constructive dialogue. I am also thankful to the UN Country Team for their support and assistance.
This end of mission statement will be followed by a full report with observations, conclusions and recommendations that will be presented to the Human Rights Council in June 2019, and that will constitute the totality of my advice to the Government of Georgia.
The State of Georgia has carried out significant legal and institutional reform on matters of gender, violence and discrimination. In particular, under the ratification process of the Council of Europe Convention on preventing and combating violence against women and domestic violence, Georgia amended some 30 normative acts. Similarly, the Parliament of Georgia has established a gender equality council and an action plan on gender equality has been adopted in its framework. These are very positive steps towards eradicating such violence and I think that the work of the State in relation to domestic violence reveals significant progress for which the State must be commended.
Similar positive developments demonstrate political will to act in relation to the particular issue of sexual orientation and gender identity. These include the creation of an institutional framework comprised inter alia of the Human Rights Secretariat of the Administration of the Government of Georgia, the Human Rights Protection Department at the Ministry for Internal Affairs, and the incorporation of specific focus areas within the work of other Governmental agencies, among them, the Office of the Prime Minister, the Public Defender Office and the Inter-Agency Commission on Gender Equality, Violence against Women and Domestic Violence.
In parallel, training programmes on the prohibition of discrimination and investigation of hate motivated crimes were carried out for representatives of the prosecutor’s office. In 2018, with the assistance of a civil society organization, an LGBT perspective was integrated in training modules on violence against women and girls and domestic violence.
2. Legal and public policy framework
Georgia is a State party to most major international and regional instrument on the protection of human rights and has institutionalised implementation of its international obligations. There seems to be consensus that, in broad terms, its domestic legal framework contains adequate provisions regarding the eradication of violence and discrimination.
The fundamental norm for protection from violence and discrimination in the Georgian legal framework is Article 14 of the Constitution (right to equality), which implicitly includes sexual orientation and gender identity, as has been declared by the Constitutional Court of Georgia.
Significant legislative reforms implemented in recent years include:
a. the Law on the Elimination of all Forms of Discrimination, which explicitly list sexual orientation, gender identity and gender expression as grounds of discrimination. The law applies to all public institutions, organizations, individuals and legal entities in all fields of activities. The Public Defender’s Office has been identified as the monitoring body and it annually reports to the Parliament on the implementation of the law;
b. Article 53.31 of the Criminal Code, which since 2012 provides for aggravated sentencing when a crime is committed based on sexual orientation or gender identity and which was complemented in 2016 by a recommendation to prosecutors to identify and qualify hate motivated crimes issued by the Division of Human Rights Protection at the Prosecutor’s Office of Georgia; and
c. Article 142 of the Criminal Code, which since 2014 typifies violation of human equality on the basis of sexual orientation and gender identity or expression;
d. Article 239 of the Criminal Code, which since 2015 sanctions public calls for violent actions aimed at initiating discord between groups, if this poses an obvious, direct and substantive threat. This disposition is nonetheless subject to significant criticism from several quarters, which argue that there are risks that the norm will be used against, rather than for the protection of, minority groups;
e. Article 56 of the Law on Broadcasting, which forbids the broadcast of programs aimed at the humiliation and defamation of a person or group based, inter alia, on their sexual orientation. This disposition is nonetheless subject to significant criticism because the broadcasters’ self-regulatory mechanisms often refuse to discuss complaints filed by non-governmental organisations, and the decisions are not subject to appeal.
The strength of this legal framework notwithstanding, all stakeholders agree that there are major issues in terms of implementation compounded by a lack of awareness about the law and a lack of reporting by victims.
This is illustrated by the fact that only 11% of the cases of possible discrimination received by the Public Defender’s Office between 2016 and 2017 relate to sexual orientation and gender identity, and the Office found acts of discrimination in only a handful of them. This must be put into perspective in relation to the fact that the LGBT community is one of the most discriminated groups in the country.
b. Public policy framework
Georgia has also implemented significant policy reforms in the field of human rights and to combat discrimination:
a. a Human Rights Strategy for 2014-2020 which under the strategic path of guaranteeing equal rights and the protection of the rights of minorities, includes the task of combating discrimination on the basis of sexual orientation or gender identity;
b. a Human Rights Action Plan for 2014-2015, which under section 12.5.1 includes the task of promoting diversity including sexual orientation, and under section 14.4 includes the objectives of ensuring comprehensive legislation to fight against discrimination on the basis of gender identity and sexual orientation, and effective punishment of hate crimes through timely investigation, training, and collection of statistics;
c. a Human Rights Action Plan for 2016-2017, which under section 13.2 included the objectives of ensuring the legislative guarantees to fight against discrimination based on sexual orientation and gender identity, an anti-discrimination policy including the establishment of standards in public service and the regulation of hate speech on law and a Code of Ethics, the effective enforcement of hate crimes under Articles 53.31 of the Criminal Code, and addressing domestic violence based on sexual orientation and gender identity.
When assessing the entirety of these public policies, I observe that they could be the basis for a comprehensive strategy to combat discrimination and violence based on sexual orientation and gender identity. Unfortunately, as will be detailed infra, a very significant majority of these targets have not been met, and very little progress can be observed in most of them. This creates a telling lag in the progress of such strategic objectives of the State. I have received information to the effect that the chapter on equality of the 2018-2020 Human Rights Action Plan is still under preparation. According to information received during the mission, specific measures related to sexual orientation and gender identity should be incorporated in this chapter. I therefore recommend that in the process of completion of the chapter on gender of the 2018 – 2020 Human Rights Action Plan include an evaluation of the factors that have hampered the completion of targets under section 14.4 of the 2014-2015 Action Plan, and 13.2 of the 2016-2017 Action Plan, formulate actions to address the findings, and provide the means for their realistic implementation in the period 2018 – 2020.
Until such time as these actions are completed, the question that remains is whether the formal framework in place is effectively addressing violence and discrimination against LGBT persons. Unfortunately, there is also little controversy to the effect that challenges in connecting the framework with lived experiences of lesbians, gays and bisexual and trans persons have, so far, failed to have that impact to a meaningful degree.
3. Lives of LGBT persons in Georgia
The relevance of human rights is to be found in concrete aspects that matter in the everyday life of individuals. Eleanor Roosevelt, one of the drafters of the Universal Declaration of Human Rights, said that human rights begin in small places, neighbourhoods, schools and factories and offices where persons seek equal justice, equal opportunity and equal dignity without discrimination. During my visit, I have developed the conviction that in Georgia there are systemic factors that deny lesbians and gays, and bisexual and trans persons the right to live free and equal in those neighbourhoods, those schools and those places of work.
While I encountered no negation that these persons exist, or that their sexual orientation and gender identity is as inherent to them as is the colour of their skin or their height, I did however encounter the pervasive notion that this inherent aspect of the identity of each one of these Georgians is something sinful, shameful or pathologic. As a result, the view of a majority is that gays, lesbians, trans and bisexual persons must conceal their sexual orientation or gender identity if they want to be good citizens, respectful of good morals and supportive of good values.
These convictions are in turn fuelled and reinforced by the church, tolerated and at times sponsored by politicians and governmental or law enforcement agents, and replicated by mass and social media.
The consequences of this concerted attack are real and include the threat of exposure to violence and exclusion from health, housing, work and economic opportunities, social success and other basic elements that are a fundamental part of a person’s quest for happiness. This nefarious energy has at the receiving end one of the most disenfranchised, vilified and vulnerable communities in Georgia. The societal goal, it appears, is to create the notion that Georgia has a homogeneous population composed exclusively of heterosexual cisgender persons.
But this would not be an accurate reflection of reality. Not only do we know that gay, lesbian and trans and bisexual persons exist in every corner of the world, we also know that they represent a certain proportion of Georgians. During these two weeks I spoke with many, who described their intricate networks and communities, the manner in which thousands of them learn to recognise each other, maintain contact, and receive and provide support. In the city of Batumi, for example, I was given a rough estimate according to which the trans community could be as high as 100 persons during the high season and the number of gay men or men who have sex with men, lesbian and bisexual people would be in the thousands.
Each lesbian, gay, bisexual or trans person in Georgia puts in place some sort of survival strategy. Very few will be protected by status or wealth; others will leave the country and break their family bonds to seek asylum elsewhere. Those that remain will face the choice of revealing their true self and be subjected to certain violence and discrimination or concealing this essential aspect of their identity and living in a parallel world, “in a shell”, as one gay man told me in Batumi. For them, the fate is invisibility of their needs and their realities, non-existence in official data, and constant fear of exposure.
Indeed, my conversations with Georgians who happen to be gay, lesbian, trans or bisexual have evoked the notion of freedom. “I am shackled, I can’t live free in this society. I have to lie to myself and to others all the time,” said to me a gay man. This was a powerful image, this absence of freedom – a value so cherished by all Georgians.
Virtually all conversations held during the visit lead to presume that violence (physical and psychological) and discrimination against LGBT people are pervasive in Georgia: beatings are commonplace, harassment and bullying constant and exclusion from education, work and health settings appear be the norm.
Domestic violence is a key element in the downward spiral of social exclusion and marginalisation affecting the LGBT community: in a 2018 survey, 84% of LGBT people reported having experienced some form of abuse by family members. Members of the community are often subjected to psychological and physical violence, attempts to limit their freedom of movement and social contacts with their peers as a punishment for not conforming to socially acceptable behaviours and practices. For boys, feminine activities or behaviours are considered shameful and rejected by both the family and society. While girls displaying masculine traits are dismissed as kalabicha (tomboys) and expected to change over time, this does not exclude them from extreme violence. During one conversation with a young lesbian woman, she referred how her father had repeatedly beat her and put a gun to her head before she could manage to escape and take refuge in a shelter, something that was autonomously corroborated by a State agency; when the case reached the police, the mother sided with the father precisely because she considers her daughter’s sexual orientation an insult to the family.
This leads me to observe that the successful actions of the State in relation to domestic violence require further refinement when it comes to motives of sexual orientation and gender identity. In that respect, I am aware that task 13.2.4 of the 2016 – 2017 National Action Plan foresaw actions to ensure “timely and effective investigation of domestic violence cases based on sexual orientation and gender identity” and “specific statistics and analysis on cases of domestic violence based on sexual orientation and gender identity.” The conceptual framework or systems that would allow this disaggregation has however not been completed. The Supreme Court, for example, provided information of a pool of 1578 cases of domestic violence, but could not provide any information as to which, among those, had basis on sexual orientation or gender identity.
I regret, for this reason, the lack of progress of LGBT-specific considerations in this work, which had been planned by the Government itself. The measures taken to prevent and eradicate violence against women and domestic violence, as well as support mechanisms for victims, appear to have been designed from a heteronormative perspective and little consideration has been given to the reality of the LGBT community.
The responses from the Ministry of Internal Affairs and the Prosecutor’s office were, in this context, more encouraging: the work required to gather the statistics has already started.
I therefore recommend that the State redouble its efforts to ensure adequate identification and processing of domestic violence cases based on sexual orientation and gender identity, and the collection of the relevant statistics.
Hate crimes on the basis of sexual orientation and gender identity are presumed to be commonplace: one NGO reported having worked on 38 such cases during 2017 and so far in 2018, 40. I want to underline that this must be regarded as the proverbial tip of the iceberg: if this is the number reported by a single NGO that works with extremely limited resources, the rate of unreported violence must be presumed to be exponentially higher.
Yet, even with reference to these numbers and the introduction in 2012 of an aggravating circumstance for hate motivated crimes based on sexual orientation and gender identity under Article 53.31 of the Criminal Code, it took four years for such a crime to be registered in the official statistical database of the Ministry of Internal Affairs. During my visit, all information received from all quarters is consistent to point out that law enforcement bodies rarely link this article to cases, and that Courts have never applied it in what concerns sexual orientation or gender identity.
Indeed, LGBT persons face significant challenges bringing a complaint before Georgian police – the first link in the chain of justice. Victims report being unwilling to refer incidents due to lack of trust and fear of being outed, abused or mocked. Prejudice from police officers is particularly acute towards trans sex workers and I have heard repeated complaints of abuse of authority, homo/transphobic attitudes, verbal and physical abuse, and degrading or humiliating treatment. Some of those stories include allegations that police officers will trade protection for sexual intercourse with trans women under the auspices of well-established relations continuing for years. Yet, examples of such instances of abuse are absolutely absent from the information bases of the police oversight mechanisms. This clearly means that they will not be investigated and will remain unpunished, reinforcing a certainty of impunity.
Some progress is being made in this regard since early 2018. The creation of the Department for Human Rights Protection at the Ministry of Internal Affairs, with a mandate to oversee the investigation process of hate crimes, among others, appears to have created a qualitative difference in the Ministry’s ability to deal with the issue. From January 2018, 40 cases of possible hate crimes have been identified; among them 20 related to sexual orientation or gender identity, and 10 led to the formulation of criminal charges. In addition, the Department is carrying out dissemination actions to make clear that such offenses will be dealt with effectively and appropriately; and a special police training module on hate crime is currently under development in cooperation with specialised civil society organisations.
In relation to Prosecution: a) in 2016, four criminal cases were identified as hate motivated on grounds of sexual orientation and 20 cases on grounds of gender identity. Four individuals were charged with hate motivated crimes on grounds of sexual orientation; b) in 2017, 12 criminal cases were identified as hate motivated on grounds of sexual orientation and 37 cases on grounds of gender identity. Four individuals were charged with hate motivated crimes on grounds of sexual orientation and 4 individuals with hate motivated crimes on grounds of gender identity; and c) for the first months of 2018, four criminal cases were identified as hate motivated on grounds of sexual orientation and nine cases on grounds of gender identity. Three individuals were charged with hate motivated crimes on grounds of sexual orientation and five individuals with hate motivated crimes on grounds of gender identity. I welcome these positive developments while underlining the concern that many cases do not reach this stage in the proceedings and urging the prosecutorial authorities to intensify the efforts that have allowed this progress to be reached.
At the level of the judiciary, there seems to be a different pattern altogether. Throughout my visit I met with a representative section of this branch of the State, including the Supreme Court, the Kutaisi City Court and Batumi City Courts. In all, I received information to the effect that the hate motive included in article 53.31 has never been retained by judges when sentencing and that consequently there is no jurisprudence of aggravating circumstances in homophobic or transphobic crime. The explanations provided are manifold and include allegations of lack of legal prospect and negligence on the part of the investigation to build properly on the motive of the crime. In one Court, when discussing a specific case, I was told that, in retrospect, all elements for the application of Article 53.31 appeared to be present and the judge could not remember why it had not been applied. The Legal Aid Bureau concurred and expressed its perplexity as to why, in many cases in which the homophobic or transphobic motive was a clear line of investigation, it was not pursued.
The discrepancies between official statistics and cases documented by civil society organizations confirm these concerns: the vast majority of violence against LGBT persons remains undocumented, and when it is reported, it will be rendered invisible by the lack of proper identification. For example, at the Supreme Court I was informed that in a case against a trans woman, the victim would be registered with sole reference to the gender marker in her official identification, leading to most trans women being registered as men, literally making invisible the problematic that they face.
For these reasons, I concur in my preliminary conclusions with the findings of the Public Defender’s Office according to which the strategy to tackle hate-motivated violence fails to address the systemic nature of the problem. Addressing root causes requires to make them visible. Stigma as to sexual orientation and gender identity creates a vicious cycle where all persons and State agents involved in a situation consider, at best, that it is in the best interest of the victim to conceal the true cause of violence, and at worst, that the violence is justified. None of these extremes is conducive to proper notice, investigation and registration of homophobic and transphobic crime.
It is within this context that I welcome the recent Project “Fight against discrimination, hate crime, and hate speech in Georgia” that seeks, under the auspices of the Council of Europe, to combine legislative, capacity-building and awareness-raising actions to ensure appreciation of diversity in Georgia and the possibility for everyone to freely enjoy their rights, and that – I understand – includes particular emphasis in the design of data gathering and management systems.
iii. Persons deprived of liberty
Prisons are like a microcosm of the society put under a magnifying glass. The risks of discrimination, violence and abuse are even higher. All available studies and reports reach a similar conclusion, namely that LGBT detainees remain amongst the most vulnerable in detention. In Georgia, a system of social outcast had been put in place whereby inmates perceived as being LGBT would be isolated from the rest of the prison population, enrolled in the most menial work such as cleaning services, and would be subjected to mockery and offensive language from other detainees and even sometimes the administrative personnel. According to the tacit rules of this system, any other detainee who would touch, speak or simply acknowledge the existence of those perceived to be LGBT – referred as “hen” – would automatically be associated with them and outcast as well. According to the Public Defender’s Office, this results in these prisoners being less involved in the existing rehabilitation or other activities implemented in penitentiary establishments. The Public Defender also noted that the administration explains such classification in terms of security reasons as it is considered to be the only way to protect prisoners’ interests and the regime of the penitentiary establishment.”
During my visit, I had the opportunity to meet with representatives of the Special Penitentiary Service and to visit a penitentiary institution, where I met with prison authorities to have a glimpse of the human rights situation of LGBT persons in detention.
According to information at my disposal, this informal system continues to exist throughout the country, although at different degrees. For example, in the prison I visited, despite efforts to create an inclusive environment, it remains impossible for LGBT persons and those believed to be from the community to distribute food, as other inmates will refuse it. As prison authorities acknowledged, “it takes time to dismantle stigma and prejudices inherited from the Soviet era, the most important is to change the mindset of people, the mentalities, and with time things will improve”.
I also note that the current obstacles to legal gender recognition and rigid interpretation of gender in the judiciary may lead to situations where a trans woman may be sent to a male facility, with all risks associated with it. This is another illustration of the urgent need to eliminate abuse requirements as prerequisites for changing gender marker in identity documents, as noted below.
I am encouraged by efforts made by the authorities to combat discrimination towards LGBT persons in detention. During the visit, I have been informed about the elaboration of a strategy and associated plan of action for vulnerable detainees, including LGBT inmates that includes components related to the care, protection and social integration of LGBT detainees through trainings, awareness raising, and other activities. I however note that there is no baseline information with regard to the size and the needs of the LGBT community in prison.
I therefore recommend to base policies and programmes, among other, on surveys and studies assessing the current situation and to measure progress over time. In doing so, anonymity and confidentiality should be guaranteed, and the safety of the detainees should always remain the primary consideration.
The general environment is hostile to LGBT people who have to endure homo/bi/transphobic opinions being shared around them. The lack of knowledge about issues related to sexual orientation and gender identity and misconceptions create fertile ground for the manipulation of public opinion. An analysis of Georgian media monitoring shows that in public spaces, homophobic hate speech is most frequently used by politicians and religious figures. For the former, it is at its height during elections, as the theme of sexual orientation and gender identity is often used politically. The Criminal Code does not explicitly prohibit hatred against members of the LGBT community and – despite its inclusion under 13.2.2 of the 2016-2017 Action Plan - efforts to adopt a Code of Ethics for members of the Parliament have failed. Further, such acts are never reprimanded publicly by the authorities and therefore tacitly condoned.
I deeply regret this situation. The responsibility of authorities and public figures not to incite or exacerbate hatred and discrimination is a well-established obligation under the international human rights framework. The European Court of Human Rights has clearly established that expressions such as qualifying homosexuality as a “deviant sexual proclivity” having a “morally destructive effect on the substance of society” are serious and prejudicial allegations even when they are not calls to hateful acts, and therefore an exception to the protections of Article 10 of the European Convention on Human Rights. These obligations notwithstanding, a civil society organisation reported 731 homophobic public statements in 2017: 255 by the media, 153 by politicians, 172 by other members of society, 24 by the clergy and 127 by civil organisations.
Since 2016, members of ultra-nationalists and far-right groups have emerged forcefully in the public sphere using hate speech towards members of minorities, including LGBT people. These groups are actively using social media to spread the hate propaganda against LGBT persons or launching violent online attacks against individuals. There is little evidence of a comprehensive Government strategy to address cyberbullying, hate speech and online threats against minorities.
I therefore recommend the prompt adoption of the standards on public service and Code of Ethics envisaged under task 13.2.2. of the 2016-2017 Action Plan, as well as the evaluation of the current legal framework to determine whether it is fully adequate to address hate speech. Further, I recommend the adoption of a policy of zero tolerance in relation to hate speech on the basis of sexual orientation and gender identity, accompanied by the adoption of effective measures of investigation and sanction.
v. International Day Against Homophobia, Transphobia and Biphobia (IDAHOT)
On 17 May 2013 a small group of members of the LGBT community and their allies commemorating the International Day Against Homophobia and Transphobia in Tbilisi was attacked by a crowd of thousands. For hours the small group of demonstrators were subjected to protracted terror and physical and psychological damage, while the police failed to control the situation. While there is contention at the level of involvement, there is consensus on the fact that clerics from the Orthodox Church and members of extremist groups were involved in inciting the violence, and that groups from the population executed the attack under mob dynamics.
I must confess that at the beginning of my mission I failed to understand the fundamental nature of this event in the recent history of Georgia, but dialogue with all parties has convinced me that it is, in fact, a point of rupture. I have been struck by the extent to which different stakeholders – the Government, the LGBT community, the civil society and the Church – qualify it as “a source of shame,” a “societal trauma,” or “the lowest point of Georgian society in recent times.”
Equally worrisome are the effects of these events on the ability of the LGBT community to make effective use of their freedom of expression. Since then, strong limitations put in place by the Government to participation in 17 May demonstrations have hampered the ability of the LGBT community to celebrate this International Day:
a. in 2014 and 2016, not held by external restriction, and in connection to facts currently pending before the European Court of Human Rights,
b. in 2015, not held by self-restriction,
c. in 2017 and 2018, held but under several limitations.
This chilling effect seems to be supported by a significant majority of the society. According to a study by a civil society organisation 80.5% of the respondents to a survey considered that LGBT rallies should be banned by law. To have such a significant part of society convinced that a whole community does not possess the right to freedom of expression is something that concerns me very deeply.
In this context, I congratulate the participation of the Deputy Minister of Internal Affairs and of the Head of the Human Rights Protection Department in the 2018 celebration, as well as the announcement prior to the meeting, that violence will not be tolerated.
In 2014, the Orthodox Church of Georgia declared 17 May as Family Purity Day. Since then, the Patriarchate has held annual demonstrations on 17 May, marching in Tbilisi city center and celebrating mass wedding ceremonies. I am very thankful of the respectful and open dialogue that allowed me to convey to the Patriarchate my concerns in this respect: the establishment of a dynamic of peaceful coexistence must be a common objective, and I am convinced that other solutions could be found for different beliefs to be manifested without creating risks of confrontation and a dynamic of competition.
For these of many other reasons, I am convinced that 17 May 2013 is an open wound that remains to be healed, and I am convinced that this is due to the fact that a shadow exists over the investigation, prosecution and sanction of those very grave events.
I therefore recommend that the State consider the adoption of measures to ascertain the truth of the events of 17 May 2013, the establishment of different responsibilities in them, and the measures of reparation that should ensue, including what measures of non-repetition would be necessary.
i. Leave no LGBT person behind
According to surveys, just as LGBT people are seen by the Georgian population as amongst the most discriminated in the country, the general attitude however remains negative towards this community. A 2018 poll conducted by the National Democratic Institute (NDI) highlighted that only 23% of the population believed that the protection of their rights was important.
These perceptions that translate into discriminatory practices in everyday life and are exacerbated by stigmatising regulations, such as the prohibition to donate blood by men who have sex with men that keeps on being struck down by the Constitutional Court only to reappear in other incarnations. I have indeed been informed that after having been invalidated twice by the Constitutional Court which found the Ministry of Health’s regulations discriminatory, a ban on blood donation has recently been introduced prohibiting men who have sex with men to donate blood for 10 years after having had sexual intercourse with a same-sex partner. As pointed out by the Court in previous decisions, the fact that modern technologies allow for the detection of HIV/AIDs in donations makes a ban unnecessary. Such policies only add to the stigma associated with men who have sex with men and should be abolished.
To date, the LGBT community is not only invisible in mainstream society, but also in development strategies, policies, programming and budgeting. There is little knowledge about the community, its size, its vulnerability, and its needs. It is crucial that the human rights of LGBT people remain firmly included in the 2030 agenda, and to include LGBT persons, communities and populations in the design, implementation and evaluation of all related policies.
Without urgent measures to render the community visible and to address violence and discrimination based on sexual orientation and gender identity, Georgia will fail to comply with its international human rights law obligations and deliver on the promise not to leave anyone behind in the implementation of the Sustainable Development Goals. Urgent responses are required from the legislative, judicial and executive branches of the government, as well as non-State actors such as civil society, faith-based communities, the media, and the private sector.
In this context, I recommend that the State ensure the availability of high-quality, timely and reliable disaggregated data to enable the formulation of policy changes deemed necessary for the social inclusion of LGBT people and the protection of their human rights. Data collection and management should be implemented in strict compliance with human rights standards, as an effective measure to prevent, punish, and eradicate violence and discrimination against LGBT persons.
ii. Right to privacy and family life
The new Constitution of Georgia, which will be enacted after the Presidential election planned for October 2018, replaces the current neutral definition of marriage with a definition that recognizes marriage “as a union between a woman and a man”. Such definition echoes the long-standing definition of marriage enshrined in article 1106 of the civil code that defines marriage as a voluntary union between a woman and a man for the purpose of creating a family.
During my visit, I have been informed that the LGBT community had never claimed marriage equality for same-sex couples and that this proposal was initiated by some political groups who appealed to public homophobic sentiments and called for the preservation of a traditional form of family for political gain. I call on all relevant actors to reflect on how such unnecessary initiatives fuel negative sentiments towards the LGBT community and contribute to stigma and stereotypes, and on political leaders to shoulder their responsibility towards promoting social peace and fostering tolerance.
I note that there is currently no recognised form of same-sex partnerships in Georgia. In that regard, I have been informed that the Venice Commission issued an opinion in 2017 on the proposed draft Constitution of Georgia stating that the Constitutional definition of marriage should “in no case be interpreted as prohibiting same sex partnership” and that “Georgia like any other Council of Europe member State is obliged to comply with European Convention on Human Rights standards and therefore must provide legal recognition (such as civil unions or registered partnerships for same sex couples).”
iii. Decent work and right to an adequate standard of living
In the absence of official statistical data on the well-being of the LGBT population and their social inclusion, I can only rely on anecdotal evidence and surveys or studies conducted by non-governmental sources.
Although the Labour Code explicitly prohibits discrimination based on sexual orientation, all reports available attest to discrimination against gay, lesbian and bisexual remaining common in the workplace. A study conducted by a non-governmental organization showed that discrimination in employment is the most problematic sphere for LGBT persons, and especially trans persons. The same study found that one person out of four had been denied employment due to sexual orientation or gender identity and that only 15.3% of LGBT people are open about their sexual orientation at work due to fear of discrimination.
Many members of the community said that they were concealing their sexual orientation or gender identity in order to have decent work. Those whose appearance does not correspond with social expectations, especially effeminate men, told me that they were not hired or when hired, they were ostracized at work, subjected to slurs and mockery or fired if coming out. All LGBT community concurred in saying that the most vulnerable and marginalized were trans women. Unless they live a double life, trans women have little chance to find a formal job. This is compounded by the difficulties to obtain legal gender recognition and the sad reality that most trans women have identity documents that do not correspond with their gender identity. Many, therefore, work in informal economies with poor working conditions and remuneration, including sex work.
Information received during the mission points to the fact that the vulnerability of the LGBT community to homelessness and their needs has not yet been examined and taken into consideration when designing policies and programmes. There is a lack of research regarding the root causes of homelessness in the country and the possible correlation between domestic violence and homelessness. LGBT youths are often ousted from their home when “coming out” and many find themselves in an extremely vulnerable situation, subjected to homelessness, poverty, violence and prejudice in public spaces. Studies conducted in other countries showed that LGBT youths were over-represented among the homeless, with one study showing that as much as 40% of the homeless youths in the country were LGBT.
I regret the lack of data on the number of homeless LGBT youths and the absence of State programme offering temporary accommodation or specific shelters for LGBT people. I therefore welcome trainings provided by civil society organizations to staff members of the shelters on service provision to victims in order to mainstream the special needs of lesbian, bisexual and trans women.
The Law of Georgia on the Protection of the Right to Healthcare prohibits discrimination on the grounds of sexual orientation and prohibits negative personal attitude while the Law of Georgia on the Rights of Patients protects the rights of citizens in the healthcare system and prescribes respect for the dignity of all patients.
Stereotypes and stigma however permeate in all spheres of life, including when accessing health services. Members of the LGBT community have reported that medical personnel display homophobic attitudes towards them and these attitudes adversely affect their access to health as they refrain from seeking medical services and may choose self-medication in order to avoid negative attitudes of doctors.
According to a study conducted by non-State actors, 39% of the medical staff interviewed believed that homosexuality is a disease and can be cured, in complete contradiction with the position of the World Health Organization. I was myself shocked by the lack of awareness and the stigma attached to the issues of sexual orientation and gender identity by health professionals.
In 2017, the State Regulation Agency for Medical Activities of the Ministry of Labour, Health and Social Affairs received seven complaints regarding the provision of medical services to representatives of the LGBT community, of which the Agency determined that signs of violations were detected in one case only.
Health-related government policies, strategies and action plans do not cover or address the needs and interests of the LGBT community, despite a recommendation to that effect by the Parliament’s Gender Equality Council to the Ministry of Labour, Health and Social Affairs.
In the absence of specific studies by the Government, the healthcare needs of the LGBT community remain unknown. The situation of lesbian and bisexual women is particularly striking in that regard as there seems to be a total absence of information regarding their access to health care services and identification of their needs.
According to a 2014 size estimation study, some 17,200 men have sex with men in Georgia. A sharp increase of HIV prevalence among MSM population has been a serious public health concern. A 2015 study revealed that HIV prevalence among this group increased from 7% in 2010 to 25.1% in 2015 in Tbilisi. Alarmingly, as a result of low HIV testing coverage of key population, only 14% of MSM living with HIV know their status. Homophobia and transphobia compounded by HIV/AIDS social stigma remains a major obstacle for the inclusion of these populations in testing and treatment services.
Trans persons’ access to health care services is opaque and health professionals are particularly unaware of specific health needs of trans persons. Access to appropriate gender affirmation services including psychological, endocrinological and surgical expertise is unregulated. To date, there are no clinical guidelines with regards to gender affirmation procedures, despite a recommendation to that effect by the Parliament’s Gender Equality Council to the Ministry of Labour, Health and Social Affairs, and these are not covered by private health insurance schemes and under the Universal Health Care Program, making it unaffordable and therefore inaccessible to the vast majority of trans people.
I therefore recommend that the State take immediate measures to improve the health and well-being of LGBT people and guarantee their access to good quality healthcare services and health-related information. This includes considering establishing the provision of gender-affirming care as a State obligation not dependent on a diagnosis and not as a prerequisite for legal gender recognition.
v. Education, culture and sport
The Law on General Education and the Law on Higher Education of Georgia prohibits discrimination on any grounds but none of the regulatory documents in the educational system includes issues related to bullying.
A survey conducted in 2016 by a non-governmental organization showed that bullying remains widespread with seven of 10 students surveyed having been victim of bullying. Many members of the community testified about violence and isolation in school. The low level of sensitization to the fact that homosexuality is a normal variation of human sexuality creates a hostile environment and breeds intolerance towards LGBT students. Members of the community said that at times parents and teachers join force to convince LGBT students to change their sexual orientation, including through psychological counselling. In such an environment, students internalize the negative attitudes and values of society, which may have a detrimental impact on their mental health and result in self-harm or violence. It is therefore crucial to urgently adopt specific programmes to promote tolerance towards LGBT people in the education sector.
Sexuality education is not part of the school curriculum, but the government has introduced the subject “Me and Society” that aims at addressing issues related to family, society, school environment and citizenship. There is however little if no information provided in the educational material on eliminating gender stereotypes and promoting equality and non-discrimination regarding women and girls, nor on the grounds of sexual orientation and gender identity. This is of great concern, given the stigma, stereotypes and misconceptions surrounding gender, sexuality, and LGBT persons in Georgia.
I therefore recommend that the State implement objective, non-partisan sexuality education and awareness-raising as a crucial vehicle to address the root causes of violence and discrimination based on gender, sexual orientation or gender identity.
Culture and sport are two powerful media to sensitize the general population and promote human rights and to foster social inclusion. Systematically, in all meetings, with all stakeholders, the urgent need to raise awareness and foster education about sexual education and gender identity was highlighted as a key building block to eradicate violence and discrimination towards LGBT people. Unfortunately, to date, there is no State programme, policy, or strategy to tackle this issue through culture or sport.
According to established practice, full sex reassignment surgery preceded by an assessment by psychologists and sexologists as well as hormonal therapy are a prerequisite for being able to amend gender markers in identity documents. Prior to the surgery, they have to be observed by psychologists and sexologists. I was shocked to be informed that, after that, the surgeon will issue to the patient an opinion on whether the patient is a “true transsexual” or not, depending on the patient’s will to undergo full or only partial bodily affirmation procedures. I am extremely concerned by such abusive requirements applied at the discretion of medical professionals clearly uneducated on sexual orientation and gender identity, and would note that the surgeries recommended to “true transsexuals” lead to completely unnecessary mutilation, sterilization, great pain and suffering.
The requirements described are abusive and in contradiction with international human rights standards. Such treatments and procedures can lead to severe and life-long physical and mental pain and suffering and if forced, coercive and otherwise involuntary, can violate the right to be free from torture and other cruel, inhuman or degrading treatment or punishment. Sterilization requirements run counter to respect for bodily integrity, self-determination and human dignity, and can cause and perpetuate discrimination against transgender persons.
Further, the right to equal recognition before the law is a basic element in a well-functioning framework for protection from arbitrary arrest and detention, torture and ill-treatment, as it is well established that in all situations of deprivation of liberty, the proper identification of the individual is the first guarantee of State accountability. Without it, trans people are victim of discrimination in all aspects of life, including in employment, housing, and access to social security, they are socially excluded, and subjected to high levels of violence. They may also face restrictions on their right to freedom of movement. For these reasons, the gender recognition system that allow trans persons to change their name and gender markers on identification documents should be a simple administrative process based on self-determination of the applicant and it should be accessible and, to the extent possible, cost-free.
I therefore call on Georgia to eliminate abusive requirements as prerequisites for gender marker’s change, including forced involuntary sterilization and medical procedures related to transition, as well as surgeries and hormonal therapies, undergoing medical diagnosis, psychological appraisals or other medical or psychosocial procedures or treatment.
In conclusion, I encourage the authorities of Georgia to continue along the road already undertaken. I deeply appreciate their expressions on the importance of eradicating violence and discrimination based on sexual orientation and gender identity, and acknowledge the important steps taken in relation to the legal and public policy framework. The task remaining, however, is significant. That excellent framework needs now to deploy an impact in the small spaces to which Ms. Roosevelt made reference: the sidewalk in which persons walk, the field where they play football with their friends, the school that they attend to educate themselves and the restaurant in which they wait on customers to gain a living. More importantly, it needs to deploy an impact in the home to which they return.
Some may argue that this work takes one or many generations to be complete. I have no doubt that that may be the case. But every Georgian who happens to be gay, lesbian or bisexual or trans deserves to see, today, decided forward action that paves the way to being free and equal.
Tbilisi, 5 October 2018