Johanna Westeson - The ICHRP

grounds for discrimination. Gender identity is still only recognized as protected ground in a
few states.
Contrasting with the strong emphasis on non-discrimination within the EU, and in light of
other international human rights treaties, the European Convention of Human Rights has a
comparatively weak non-discrimination provision – one that is not freestanding but which
can only be applied in conjunction with any of the substantive rights under the Convention.
The European Court of Human Rights has declared that sexual orientation is a protected
ground under the Convention, but in general the jurisprudence of the Court shows a
reluctance to extensively apply Article 14 (non-discrimination) to cases of sexual
orientation and gender identity. In most cases where sexual activities or sexual identity
have caused negative treatment on behalf of the state, the Court has found a violation of
the right to private life under Article 8, and has not found a reason to separately examine
the issue under Article 14.
2. Council of Europe
European Convention of Human Rights
Article 14 of the ECHR includes sex as one of the prohibited grounds of discrimination in
the enjoyment of the rights under the Convention. It reads:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured
without discrimination on any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a national minority, property,
birth or other status.
It is important to note that Article 14 only prohibits discrimination with regard to the rights
protected by the Convention; thus a violation of Article 14 can only be found in
conjunction with one of the Convention’s substantive rights. In this sense, Article 14 is
different and substantially weaker than the non-discrimination clause in the International
Convention on Civil and Political Rights, Article 26. The fact that Article 14 must be taken
together with another Convention right does not mean that there also must be a violation of
the substantive right, however. 33
Protocol No. 12 to the Convention establishes a freestanding prohibition of discrimination
(regarding “any right set forth by law”), where sex again is one of the listed grounds:
The enjoyment of any right set forth by law shall be secured without discrimination on any
ground such as sex, race, colour, language, relation, political or other opinion, national or
social origin, association with a national minority, property, birth or other status.
As of 31 December 2009, 17 countries have ratified Protocol No. 12. As of the same date
there is no case law from the Court under Protocol 12 relevant for the present report.
The Convention and its Protocol do not explicitly mention sexual orientation or gender
identity as prohibited grounds for discrimination, but the list in both provisions is nonexhaustive
and has been interpreted by the Court to at least include sexual orientation (see
below).
33 See Abdulaziz, Cabales and Balkandali v. United Kingdom, below.
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