Johanna Westeson - The ICHRP

suggests that a person has to self-identify as a lesbian, gay, or bisexual person in order to
be covered by the protection under the laws, which may constitute a potential limitation to
the reach of these provisions.
The European Court of Human Rights Karner case is of great importance in the context of
sexual orientation discrimination. It points to the importance for same-sex couples to be
included in the concept of family and of the right for same-sex partners to be included in
social benefits traditionally only awarded to legal spouses. It also makes clear that the
margin of appreciation afforded to states is narrow where there is a difference in treatment
based on sexual orientation, which is why states have to present exceptional reasons for
legally being able to grant same-sex couples less beneficial measures than opposite-sex
couples. This principle is applicable and probably obligatory in many other areas than in
the one under examination in the case.
As regards gender identity discrimination, the right for a transgendered person not to
suffer discrimination has not been as universally recognized – at least not spelled out as
such. So far, only three countries in the region have an explicit prohibition of gender
identity discrimination. In one of those, the United Kingdom, the prohibition only applies
to discrimination related to gender reassignment, which appears to exclude persons not
undergoing treatment. The UK law also has several troubling exceptions that illustrate that
prejudices against the transgender community still prevail. However, the fact that the
European Court of Justice in P v S and Cornwall County Council declared that gender
identity discrimination is a subcategory of sex discrimination under EU law is significant
and has had consequences on the domestic level. Following the European Court of Justice
decision, the EU Council decided to include in the preamble of the Recast Directive
2006/54 gender reassignment in the notion of sex. Even if the preamble is not legally
binding, this establishes an important principle. Precisely because the protection from
gender identity discrimination has been included in the concept of equal treatment between
men and women, this protection may be stronger in practice than the protection granted on
the ground of sexual orientation.
Finally, discrimination based on health status, including HIV-status, is recognized and
prohibited in some countries’ anti-discrimination laws. Two such examples are Belgium
and Serbia. In Belgium, as discussed, HIV-discrimination is often intertwined with
discrimination based on sexual orientation, which shows the importance of taking a broad
view on discrimination and not treating the grounds as mutually exclusive.
1B. SEXUAL HARASSMENT
1. Introduction 107
At national and international levels, one of the critical developments in anti-discrimination
law is the recognition that sexual harassment (unwanted sexuality-based verbal or physical
activities in workplace or educational settings which create a hostile environment)
functions as a barrier to equality, and as such counts as a form of discrimination. Sexual
harassment can have health effects in two ways. First, the harassment itself can be coercive
or abusive enough to have direct mental or physical health effects. Second, in driving the
107 Drawn in part from general WHO chapeau text elaborated by Alice M. Miller and Carole S. Vance.
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