Key Benefits:
( Plenary Assembly of 26 June 2014)
1. Thirty years after the complete decriminalization of homosexuality (1), thirteen years after the recognition of a legal status for the homosexual couple by the vote of the Civil Pact of Solidarity Act (2), the Minister of Women's Rights has drawn up, at the request of the Prime Minister, an interdepartmental action programme against violence and discrimination committed on the basis of sexual orientation and gender identity (3), implemented in An interim review of this program was published on May 17, 2014 (4).
2. In French society, intolerance to homosexual, lesbian, bisexual and transidentitarian persons (5) remains largely present. Many of these people suffer discrimination, violence or exclusion because of their sexual orientation (6) or gender identity (7). The National Advisory Commission on Human Rights (CNCDH) took note of the Government's determination to implement a broad inter-ministerial work, which concerns many public policies (family law, education development to respect and combat prejudices against LGBT persons (8), health and suicide prevention, reception of victims of violence and discrimination). As such, it is committed to exercising its role of watch and proposal, fully in its role as an evaluation of public policies, during the first year of the effective exercise of the program of government actions.
3. In France, the legal tools to combat violence and discrimination based on sexual orientation and gender identity are derived from recent legislative developments. The notions of sexual orientation and sexual identity have been gradually integrated into the list of discrimination criteria, in press law, and through aggravating circumstances of offences already provided for in the Criminal code (9). The right of work also allows any person who has been discriminated against directly or indirectly related to his or her sexual orientation or identity to request the annulment of the act or provision made in respect of him or her (10). These recent developments stem from European law: legislation punishing discrimination as well as the creation of HALDE (11) is the result of transpositions of European directives. However, a new cross-cutting directive on discrimination has still not been adopted, due to the lack of agreement of the Member States within the European Council, despite its adoption by the European Parliament in 2009 (12). However, it would make significant progress in addressing discrimination on the basis of sexual orientation and gender identity in the field of education, health or access to goods and services. The CNCDH would like France to register this project as a priority of the new European mandate.
4. In the fight against discrimination on the basis of sexual orientation and gender identity, if the French legislative framework seems to be satisfactory today, the CNCDH would like to emphasize, however, the importance of real effective rights. The hearings she conducted since 2011 (13) have enriched her reflection on discrimination and violence against homosexual, lesbian, bisexual, transidentitarian people. On the occasion of the progress report of the Government's action programme, the CNCDH decided to address the issue of the fight against violence and discrimination, which seems to have to be strengthened.
5. In January 2013, the CNCDH had self-studyed the bill opening marriage to same-sex couples, holding all of its work that the opening of marriage to homosexuals was a struggle against all forms of discrimination; She then ruled in favour of this bill, considering that it was a real advance for human rights and that such a law would provide better protection to people and families. However, many actors (14) found that the debate on this bill has resulted in a disturbing release of the homophobic, lesbophobe and transphobe voice among some of the French population. The controversies associated with this debate would have particularly weakened, according to the concordant testimonies of many field actors heard by the CNCDH, the daily actions to combat homophobia and gender stereotypes (15).
6. The last report of the SOS Homophobia association, which is today the only tool to measure violence and discrimination due to sexual orientation and gender identity in France, mentions a sharp increase in homophobic words and acts in 2013 (16). The testimonies received were 3,157, a majority of which focused on the first six months of the year, an increase of 78% compared to 2012. The number of reported physical assaults increased by 54% to 188 cases, or about one attack every two days. In this context of increase, the internet would be the main place of expression of these violence (17). More than half of the reported insults and threats were identified in 2013 on sites and social networks, where anonymity facilitates homophobic, boobic and transphobic attitudes, three times more than in 2012.
7. CNCDH also alarms the situation of some young homosexuals, who are the main victims of ordinary homophobia. This situation requires special attention from institutions and public authorities. In fact, childhood and adolescence are periods of great vulnerability to the risk of violence and discrimination based on sexual orientation. At an age when the feeling of belonging to the peer group is particularly strong, the psychologists note that a teenager who would not correspond to gender standards (e.g., girl "boyne") will be much more exposed to suicidal risk (18).
8. In a social context where heterosexuality is the norm and at an age when sexual and emotional identity is a major issue of individual and collective construction, for adolescent girls and adolescents, homophobia, lived or inertified, may have important consequences, whether social (i.e. isolation, stigmatization, risk of family exclusion [19], risk behaviours) or even school (unaccepted, absent or even disconnected). These consequences can be even more dramatic: homophobia is now considered, according to a consensus of international researchers, as an important factor in suicidal behaviour among adolescents and very young adults. The health and psychological well-being of this population is therefore a real public health issue. This risk is all the more so because LGBT youth will only look for very little support from their peer group or family: the risk of unveiling (coming out) is too important compared to the potential benefits. However, the support of the family, or peers, is an essential factor in protecting against suicidal risks, as well as the fold, the stall.
9. The complexity of the phenomenon therefore calls first of all to define (I) and to evaluate (II) LGBT-phobia, in their various manifestations of violence and discrimination, to prevent (III), by education and training, homophobic acts and behaviours, boobs and transphobes, and finally to protect (IV) individuals from such violence and discrimination.
I. - Defining LGBT-phobia as forms of violence and discrimination
10. In general, the notion of homophobia goes beyond the mere condemnation of homosexuality to extend to speeches and behaviours targeting individuals considered to be non-compliant with what would be the sexual norm (20). It targets individuals isolated, but also the minority group of LGBT people (21). It is therefore built according to new social representations of homosexuality (22), and bears witness to an aversion that expresses itself in the form of stigmatizing attitudes, discriminatory behaviours or violence against lesbian, gay, bisexual, transidentity (23). These more specific phenomena are in lesbian, gayphobia, biphobia, transphobia, gathered here under the term " LGBT-phobia".
11. LGBT-phobia will also be heard in this opinion as one of the manifestations of sexism, i.e. as a form of empowerment and hierarchization of people because of their gender, feminine or masculine. It is a social violence, sometimes confined to the intimate sphere, while its manifestations concern society and public policies as well as violence caused by all forms of discrimination and exclusion.
12. Discrimination based on sexual orientation and gender identity often leads to the victim's sudden or voluntary isolation, particularly within the family environment, which sometimes represents a hostile environment (24). But this type of discrimination is a difficult reality to quantify, since there may be a reluctance on the part of the victim to declare a homophobic act, lesbophobe or transphobe because this statement may involve a coming out (25) or be a factor of conflict or even rejection within the family sphere. Some LGBT people's rights associations are then forced to qualify discrimination based on sexual orientation and gender identity as "discriminated discrimination" as, for example, in the school environment, this discrimination criterion is considered more delicate to address than disability, sex or origin. Paradoxically, in a context where tolerance of homosexuality (26) is increasing in society, there is nevertheless a banalization of homophobic attitudes and speech, lesbophobes or transphobes. Moreover, the lack of consideration by witnesses, relatives or institutions of the discrimination experienced plays a crucial role in the sense of exclusion of some homosexual, lesbian, bisexual, transidentitarian people.
13. In addition, LGBT-phobia are in some cases associated with other forms of discrimination. With a gender and sexual hierarchy, lesbians being women and homosexuals are double-discriminate. This combination of sexism and homophobia is the lesbophobia. The revelation of female homosexuality can thus lead to a shift towards stronger violence, because it upsets the normative representations of the female gender (27).
14. Therefore, the question arises from a real recognition of the type of discrimination that may be faced by lesbian people who may have difficulty in admitting that they are discriminated against by reason of their sexual orientation: a lesbophobe act may be perceived as discrimination on the basis of sex rather than sexual orientation. According to several persons interviewed by the CNCDH, the specificity of the lesbophobia can also be obliterated by the generic use of the term homophobia. Thus, the invisibility of lesbian people and the violence and discrimination that they can be specifically targeted constitutes an additional symbolic violence. For the CNCDH, it is therefore necessary that special attention be given to the experience of multiple discrimination (or cumulative discrimination) and therefore to the specific violence experienced by lesbian, bisexual or transidentitarian persons on both grounds of sex and sexual orientation.
15. The problem posed by LGBT-phobia, which blends specifically gender and sexuality, is therefore quite special. It forces to explore, in the same way as sexism, mechanisms for the construction of gender stereotypes. In this capacity, the CNCDH was able to recall, in its opinion on the gender perspective, adopted in March 2012, its conviction that "e.g. is an operatic concept, acquired at the national and international levels, to advance equality between men and women (28) ", and recognized the usefulness of the concept, as it covers "the share of social construction in the roles associated with each sex, the inequalities that arise from it and the means of it". Therefore, the concept of gender identity (30) allows to encompass, unequivocally, other human and social realities, more specific, such as those experienced by transidentitarian or intersex people. In order to bring French law into conformity with European law, to increase the terminological precision of the law and to contribute to an improvement in the fight against all forms of discrimination, CNCDH therefore considers that the gender identity criterion must be introduced into the law (31).
II. - Assessing violence and discrimination based on sexual orientation and gender identity
Low measurement tools
16. The annual report of the SOS Homophobia association is today the only tool for measuring LGBT-phobic events (32); it is built on statistics based on testimonies and requests to support the association. The report therefore does not propose a systematic census of such violence and discrimination in France. Other civil society actors, including some law enforcement officials, stressed to the CNCDH the urgent need for a better understanding of the violence committed due to sexual orientation or gender identity. While the lifting of the homosexuality taboo tends to increase the visibility of victims and increase their exposure to violence, this lack of indicators is a problem.
Financing of the victimization investigation VIRAGE
17. With regard to the measurement of the phenomenon and the census of data, the government action programme implemented by the Ministry of Women's Rights, City, Youth and Sports wanted to engage in positive actions such as the launch of a victimization survey on homophobic, lesbian and transphobe violence, which corresponds to an ancient demand from LGBT associations. The quantitative survey entitled "Violences and Gender Reports (33) (VIRAGE): contexts and consequences of violence against women and men" (34), conducted by the Institute of Demographic Studies (INED), is thus designed to produce fine statistical analyses of minority populations such as LGBT populations. The elements of the investigation will take into account both the physical and symbolic dimensions of violence committed due to sexual orientation and gender identity, which are likely to combine with other types of violence.
18. The size of the sample (35), which is quintupled compared to the National Survey on Violence against Women in France (ENVEFF 2000), must enable the specific issue of homophobic, labophobic and transphobic violence to be dealt with with with with with with with with finesse. The typology established by this survey will have to allow for better-adapted prevention policies. CNCDH therefore recommends the special mobilization of the relevant ministries in order to finalize and secure the financing of this victimization investigation (36).
Other means of assessment
19. The financial support provided by the State to the telephone line of the association SOS Homophobia (37) must also improve the monitoring of the violence and discrimination suffered by lesbian, gay, bisexual, transidentitarian persons on the basis of testimony and requests for support to the association. For the CNCDH, this financial support must also be sustained.
20. Since December 2013, the National Observatory for Crime and Criminal Response (ONDRP) has also published quantitative elements on homophobic insults, in relation to the victimization of homosexual persons and homophobic phenomena, on the basis of the investigation "Life and Security Framework (38)". For the CNCDH, carrying out such victimization surveys is essential. It also invites relevant departments to promote qualitative research in the academic and associative fields, in order to improve and refine public action on these issues.
21. In addition, the reform of the statistical system of the Ministries of the Interior and Justice must allow, in the course of 2014, to better assess the evolution of acts of discrimination or violence related to sexual orientation and to learn more accurately the criminal responses they gave rise to. Taking note of this positive reform, CNCDH therefore calls for the annual publication of LGBT-phobia figures in France with regard to the facts identified.
Opportunity of an annual public report
22. Creating a state of LGBT-phobia, violence and discrimination against LGBT people in France is now dependent on the concordance of various sources, associative or institutional, which could be brought together. According to the CNCDH, the interdepartmental dynamics of the Government should not mask the opportunity of an annual public report on the fight against LGBT-phobia, prepared by an independent body, which would give a better visibility to the phenomenon, to shed light on its specificity, and to improve ways to combat such violence and discrimination.
III. - Preventing various manifestations of violence and discrimination committed by sexual orientation and gender identity
A. - Educating youth in the fight against LGBT-phobia
Role of national education
23. National education has a crucial role to play in raising youth awareness about the fight against LGBT-phobia. The school should be able to clarify the non-compliance with the norm (39) in which LGBT people can be located, and especially young people, by more fragile definition. The particular ambition of the program of government actions against violence and discrimination committed on the basis of sexual orientation and gender identity has been, since October 2012, to engage in an in-depth struggle against stereotypes, "[supporting] on youth to change attitudes (40)". During several hearings conducted by the CNCDH, stakeholders from the educational community emphasized the great timidity of the ministry in implementing the recommendations of the government action programme. Despite a resurgence of homophobic demonstrations, boobs and transphobes (41) directly or indirectly affecting the school, the action of the Ministry of National Education (42) must be implemented. For the CNCDH, the pressures exerted by hostile groups must in no way postpone the implementation of measures whose realism and relevance can be welcomed.
24. It should be noted that the figures on harassment of LGBT people, identified in particular by the SIVIS (43) survey, in public schools in 2012–13, are particularly small: sexual orientation acts represent 1% of the harassment reported. Neither the results of the SIVIS survey nor those of the national victimization investigation (44) would therefore a priori obtain precise information on the actual extent of the phenomenon. According to the testimony of the persons interviewed by the CNCDH, however, schools are not preserved from this violence.
25. The fight against this type of violence must be part of the ongoing efforts to improve the school climate, particularly in the context of the campaign against harassment in school (45). The tools made available by the Ministry of National Education in the field of struggle are multiple. They require greater commitment to implementation and coherence within the framework of a proactive inclusive policy. The accreditation of associations, at the academic level and at the national level, the annual campaign of information on the device "Line Azur (46) ", managed by the association Sida Info Service, the provision of various educational tools are therefore particularly important but still insufficiently exploited. The CNCDH therefore recommends that the Azur Line information campaign be activated in the first quarter of the school year. Similarly, it considers that the establishment of a network of academic correspondents on the fight against discrimination, including those based on sexual orientation and gender identity, such as the network of correspondents on equality (47), can be an element of boosting departmental action and relay action among heads of institution.
Sexual education
26. The hearings conducted by the CNCDH led him to observe that, in the school environment, the fight against discrimination on the basis of sexual orientation and gender stereotypes is partly due to the development of education in sexuality and equality of girls and boys, which is included in the common base (48). The circular of 17 February 2003 on sexual education in schools, colleges and high schools (49) recalls that "education on sexuality is a component of the construction of the person and of the education of the citizen [and that it] aims to enable students to adopt attitudes of individual and social responsibility". It must therefore be able to address issues related to the fight against homophobic, labophobic or transphobic prejudices.
27. These sessions, three per school year (50), are not systematically implemented in schools and, when they are, rarely address issues related to homosexuality and transidentity. Many stakeholders regret that the issue of sexual identity or gender building is not integrated into the programs. When they are, the fact that LGBT issues are sometimes addressed from a medical perspective can de facto lead to the stigmatization of homosexuality as a sexuality at risk. As a result, CNCDH considers it necessary to promote a fight against LGBT-phobia that is distinct from a medical or biological approach. She regrets that this sensitive issue is too often left to the sole responsibility of school nurses.
28. For the CNCDH, the focus should therefore be on prevention. As noted in a recent UNESCO report (51), LGBT issues are often referred to strictly private issues, while they are undeniably part of the learning of respect in the school environment and of living together. It appears important to separate, in the context of sexual education, the issue of identity and the issue of sexual orientation, with a focus on gender education that takes into account diversity: the concepts of men and women, the deconstruction of gender stereotypes and gender roles, the identity and transgression of gender norms. As such, the special role of health and citizenship education committees (52) (ESC) has been highlighted by various actors in the educational world, who have retained their influence in the efforts to combat LGBT-phobia in the school environment. For these reasons, the CNCDH considers it necessary for the CES to be effective in all institutions and to have specific actions on LGBT-phobia.
School interventions
29. In the area of prevention, strengthening of interventions in the school environment (IMS) is also an important element. The number of secondary school students who received an awareness-raising intervention on discrimination based on sexual orientation and gender identity, by LGBT associations in 2012, is still low; It is estimated at around 25,000, or 2.6 per cent of students. If one can consider that the approvals of associations at the national level are satisfactory, they would, on the other hand, be less academic, sometimes justifying refusal of intervention, precisely because of the lack of accreditation (53). For the CNCDH, financial support to associations as well as the extension of accreditations at the academies level thus appear as effective tools to strengthen the fight against LGBT-phobia in the school environment, in which the limited means of associations cannot, however, provide all the necessary pedagogy and information.
Moral and civic education
30. Future moral and civic education programs, which have been the subject of a referral by the High Council of Programs (54), must incorporate the issue of combating all forms of discrimination. The CNCDH recalled, in a recent opinion on the introduction of moral and civic education in the school, its desire that the moral and civic formation of students should focus precisely on "the universality of rights and their interdependence, as well as on the risks of both direct and indirect discrimination (55). It reiterates this recommendation, emphasizing how the fight against LGBT-phobia must be addressed with the same ambition as the fight against racism, anti-Semitism, sexism or any other form of discrimination and exclusion by the educational community.
B. - Train professionals in the fight against discrimination based on sexual orientation and gender identity
Training in the world of work
31. According to a 2013 survey on LGBT people in the European Union, carried out by the Fundamental Rights Agency, during the year before the study, one in two LGBT people who participated in the investigation felt discriminated against or harassed because of their sexual orientation, one in three were discriminated against in access to goods and services, one in four were physically assaulted, Preventing LGBT-phobia in employment is therefore all the more necessary since the taboo of homosexuality tends to make the issue of discrimination unclear due to sexual orientation and gender identity in the world of work (56). According to the findings of LGBT rights associations, both in business and in the workplace, 85% of homophobic behaviours, labophobes or transphobes would not result in consequences for their authors in the company (57). However, LGBT-phobia events in the world of work have an impact on the whole of professional life, at the time of recruitment, on a daily basis in the company or administration, to the course of the professional career.
32. Measuring the effectiveness of policies to combat LGBT-phobia in the world of work, against harassment at work, against discrimination in employment, also faces the lack of statistics. It may be noted, however, that three-quarters of homosexual employees, according to a survey conducted in March 2013 by the federation the Other Circle (58), do not reveal their sexual orientation to their professional entourage. Barometer 2012 shows that 51% of public servants and 46% of private employees believe that the coming out of a colleague or a colleague would help to uncomfortablely put work colleagues (59) in the workplace. More than a third of the interviewees report that this could even have a negative impact on the employee's career. The invisibility of LGBT-phobia within the company, due to the shy mobilization of employers to prevent discriminatory behaviours, therefore requires awareness-raising and training of all actors, especially human resources officials.
33. In this regard, the CNCDH intends to recall that innovative actions are already being implemented, within the framework of a policy to combat LGBT-phobia, within certain companies. The commitment to a non-discrimination policy is inseparable from the training of managers on issues related to sexual orientation and gender identity. For the CNCDH, actions aimed at employees, such as the creation of listening cells, the formal prohibition of any form of discrimination, the modification of administrative documents in order to ensure equality between heterosexuals and homosexuals (60), the implementation of investigations to solicit the appreciation of employees on possible discrimination due to sexual orientation and gender identity are also essential. There is a need to encourage social partners to take up these issues, in order to create a more sustained social dialogue on this issue, especially within companies.
Role of State and territorial authorities
34. The State and the local authorities have a particular responsibility as public employers. Their policies for the prevention of LGBT-phobia in the workplace must be exemplary. For the CNCDH, all staff in contact with the public must also be sensitized to ensure a respectful reception for all public service users regardless of their sexual orientation or gender identity. If no sector is to be neglected, the professions of education, police and gendarmerie must be given greater attention.
Education community training
35. In the fight against LGBT-phobia, it is indeed essential that teachers be trained (61) on the issue of stereotypes, including gender stereotypes (62). International texts have recommended this work for a long time. Thus, the decree of 31 October 1961, which implemented the 1960 United Nations Convention against Discrimination in Education, called for the elimination of "any stereotypical conception of the roles of man and woman at all levels and in all forms of education". In this context, the inter-ministerial convention for equality between girls and boys, women and men in the educational system 2013-2018 (63) has opened a priority site to strengthen education to equality through the prevention of "sexual violence" and "discrimination because of sexual orientation or gender identity". The convention also emphasizes the need for teachers in their professional practices to rely on "scientific knowledge derived from research on gender" (64). As a result, the CNCDH recommends that the fight against all forms of discrimination, and in particular discrimination against LGBT persons, be specifically integrated into the initial and ongoing training modules of national education staff, teachers as teaching officers, and staff of human resources departments.
Training of police and gendarmes
36. The prevention of acts committed by sexual orientation and gender identity also involves more targeted training of police and gendarmes on the prevention and detection of such violence. Training modules on prevention and detection of such violence are now available as part of their initial training. Associative actors, however, point to the generalistic nature of this training and state that they are not specifically addressed to the themes of sexual orientation or gender identity. By comparison, the work carried out in other European countries, such as the Netherlands, seems much more advanced on the issue of diversity within the police (65). In addition, the entry into force of National Police Code of Conduct and the National Gendarmerie, on January 1, 2014, also allowed the evolution and improvement of the reception of victims. It prohibits police and gendarmes any distinction in their acts and their statements that constitute one of the discriminations set out inArticle 225-1 of the Criminal Code (66). The CNCDH therefore recommends that the awareness of LGBT issues be pursued and improved.
IV. - Protecting people against violence and discrimination based on sexual orientation and gender identity
Develop the reception of victims
37. The Circular of the Guard of Seals dated 23 July 2013 on the criminal response to violence and discrimination committed on the basis of sexual orientation or gender identity has emphasized that they involve a specific treatment " as they seriously infringe the values of the Republic " (67). The treatment of complaints by victims of acts committed on the basis of sexual orientation or gender identity seems to be fragilized in particular by the difficulty of characterizing homophobe, lesbophobe or transphobe mobile, then the convictions which intervene without mentioning the aggravating circumstance. Beyond this observation, many victims are reluctant to lodge a complaint, because they are reluctant to make an out, because they fear the reception that could be reserved for them, because they feel that the complaint will not result (68).
38. The CNCDH therefore encourages the dissemination of the hearing fabrics developed by the Ministries of Justice and the Interior, which can facilitate the registration of these complaints in police stations and gendarmeries (69). CNCDH also recommends that internal access to the hearing frames and their use be facilitated (70). The reception of victims is indeed a fundamental issue. CNCDH therefore recommends that the network of associations of victims' aid professionals federated by INAVEM (71) be particularly sensitized to the reception of LGBT people.
39. In the light of the above, the CNCDH recalls that a better reception of the victims requires a strengthening of the training of the staff, particularly with regard to the influence of prejudices and stereotypes on the action of security assistants and peacekeepers, in the taking and wording of the complaints, as well as in the definition of homophobic injure, lesbophobe or transphobe, which may pose a problem of reference (72). She would like to point out that the recent European Parliament roadmap against homophobia and discrimination based on sexual orientation and gender identity (73) also recommends facilitating the exchange of good practices between the EU member states in the area of police training and victim assistance services. For the CNCDH, this awareness is necessary. It should also extend to officers and commissioners who are required to treat homophobic, boobic and transphobic behaviour within the police and gendarmerie services.
40. In order to improve the reception of victims and to more effectively prevent violence and discrimination against LGBT people, CNCDH also stresses the need for a public campaign on victims' rights, which would be designed to support and strengthen existing preventive measures.
Define and implement an effective criminal policy to combat LGBT-phobia
41. Although the legal mechanism to combat LGBT-phobia has continued to progress since the first protective provisions against moral discrimination in 1985, few cases are dealt with in court (74) and the number of complaints filed would be low. This contrasts with the statistics of associations involved in the fight against LGBT-phobia, which, through the collection of testimonies and requests for support, see an increase in discrimination and aggression against LGBT people (75).
42. The fight against discriminatory statements based on sexual orientation has been reinforced by the extension to one year of the statute of limitations applicable in cases of insults involving sex, sexual orientation or identity, which were previously prescribed after three months, i.e., by aligning the deadlines with those prescribing the prescription of public action in respect of offences committed on the basis of other criteria of discrimination (76). As such, the CNCDH welcomes the provisions set out in the circular of 23 July 2013 (77), particularly with regard to the partnership between the judicial institution and the specialized associations, with the aim of promoting reports of homophobic offences. In addition, the CNCDH advocates that the anti-nouncing system be adapted to hate speech against transidentitarian people.
43. Some associative actors heard by the CNCDH are concerned about the treatment reserved for reports of homophobic, labophobic or transphobic words collected in particular on the Pharos platform (78). In 2013, out of 123,000 reports, 3,400 related to hate and discrimination based on sexual orientation and gender identity (2.76 per cent). The level of reporting of illicit content on the internet should be compared, in terms of discrimination due to sexual orientation and gender identity, with complaints.
Encourage the criminalization of homophobic expressions on the Internet
44. The question of the criminalization of expressions of a homophobe, lesbophobe or transphobe broadcast on the Internet is therefore crucial. The central place of social networks in the diffusion of LGBT-phobes means that a more intense reflection on the delicate balance that must exist between the defence of freedoms in the digital space and the fight against violence and discrimination on the Internet. The bill on equality between women and men (79), currently on second reading in Parliament (80), provides for the strengthening of the obligations of Internet site officials in combating hate speech broadcast on the Internet. The responsibility of site editors, in the dissemination of homophobic words, lesbophobes and transphobes, could thus be increased. CNCDH recommends that all incitements to hate on the Internet, including those based on sex, sexual orientation or gender identity, be taken into account, and calls for the Government to take this issue into account in a more specific reflection on cybercrime.
45. As such, it recommends the creation of an observatory of LGBT-phobia on the Internet, which would have monitoring and control missions specifically dedicated to LGBT-phobe crime with an attached reporting platform. CNCDH particularly encourages the partnership between site editors and NGOs to combat the dissemination of LGBT-phobes on the Internet (81).
Fighting the exclusion of LGBT youth
46. The protection of minors and very young adults from violence and discrimination against LGBT persons is a central concern of the CNCDH. Positive actions in this direction must be emphasized. The formation of "sentinels" youth, working in partnership with reference adults, within the framework of the Government's priority to mental health, or the action of the network of young ambassadors of rights to children (82) (JADE), established by the Ombudsman of Rights, are positive initiatives to take into account the particular issue of LGBT youth, confronted with homophobia, transphobia and transphobia. CNCDH is of the view that support for LGBT associations and the encouragement of their partnership with justice could help to consolidate these initiatives on the ground.
47. As part of the Government ' s priority to mental health (83), measures to combat the risk of suicide of young people from sexual minorities and those who question about their sexual orientation and identity are essential. The last intermediate review of the government's action programme against violence and discrimination committed on the basis of sexual orientation and gender identity does not mention the issue of the oversecurity of LGBT youth. The National Health Watch Institute, however, emphasized that homophobia or lesbophobia, and not sexual orientation in itself, is a crucial factor that can induce a risk of suicidal crisis and attempted suicide among young people.
48. Knowledge of the increased risks among LGBT youth, according to the expertise of French researchers (84), of the absence of a French epidemiological investigation into the oversecurity of this population (85). The recent creation of a suicide observatory (86) must contribute to the improvement of knowledge on the subject, and in particular to a better understanding of discrimination committed by sexual orientation and gender identity. The CNCDH therefore encourages, within this framework, the principle of a national epidemiological survey on the suicide of LGBT youth, to overcome the lack of data on the subject. It considers that it must also return to the State to support, publicly and financially, the associations for the defence of the victims, in their daily work, in order to enable the effective and sustainable support of the suffering youth and preventive actions against the suicidal risks.
Protecting Transidentists
49. In June 2013, the CNCDH issued a decision in favour of a complete demedicalization and partial diversion of the procedure for the change of gender in civil status (87). It reiterates this recommendation, considering that the transition paths of persons who are particularly vulnerable to violence call for better protection from such violence. With regard to the process of gender change in civil status, the CNCDH expressly recalls that transidentity persons are currently undergoing discriminatory treatment, even though they are entitled to equality before the law, and that the excessive duration of the procedure endangers, in particular, their access to housing, employment and social rights.
Support the recognition of refugee status
50. In terms of international protection and asylum law, the government action programme emphasized the need to ensure the effectiveness of the right of asylum for persons persecuted in their country due to their sexual orientation or gender identity (88). The Court of Justice of the European Union (CJEU) has clarified the content of Directive 2004/83/EC "Qualification" by raising any ambiguity that "homosexual persons (...) must be considered as forming a social group (89) " likely to benefit from the right of asylum. However, the only criminalization of homosexual acts in the country of origin does not constitute an act of persecution (90). It considers that the criminalization of homosexuality is a necessary but insufficient prerequisite for the recognition of persecution. The hearing of the OFPRA also showed that the lack of encrypted data on asylum applications filed as a result of persecutions related to sexual orientation and the fact that this type of persecution is a feature that often appears in conjunction with others makes the apprehension of these issues complex and increases the difficulty of the work of protection officers, whose training is gradually reinforced by the partnership with specialized associations (91).
51. The CNCDH is aware that the fair appreciation of the credibility of the asylum seeker who identifies himself as a LGBT person is a difficulty when filing the application and during the proceedings. Indeed, the granting of asylum to LGBT people is based on aspects of privacy that can be difficult to prove by the applicant. Nevertheless, the CNCDH supports the recognition of the refugee status of persons prosecuted in their country of origin because of their sexual orientation and gender identity. It is also of the view that it is essential that close cooperation be maintained between the specialized associations and protection officers for the care of these applicants.
Promoting the protection of LGBT people worldwide
52. CNCDH invites France, as part of its diplomatic efforts, to act in support of the protection of LGBT rights defenders and their allies in countries where they are persecuted, within the framework of bilateral relations between States and its development assistance which must be a genuine tool to support local civil society. In addition, France must continue to support the multilateral process in the UN Human Rights Council to combat violence and discrimination on the basis of sexual orientation and gender identity. Finally, the CNCDH wishes France to act in favour of the universal depsychiatrisation of transidentity. To do so, it must propose an agenda and strategy with the World Health Organization (WHO) so that the "gender dysphoria" comes from the directory of mental illnesses.
(Adoption: 32 votes for, 2 votes to 5 abstentions. )
