We continue to speak about human rights in a clear and accessible way — together with those who work on these issues every day. Within the framework of the project “Promoting Human Rights-Based Approaches to Victim-Oriented Justice and Building Cases on Crimes Committed against the LGBTI+ Community”, we spoke with Vadym Barskyi — PhD in Law, Associate Professor at the Department of Civil Law Disciplines of Odesa I. I. Mechnikov National University — about the protection of SOGI rights in Ukraine, the significance of decisions of the European Court of Human Rights (ECtHR), and the challenges faced by law enforcement agencies and courts in cases concerning the LGBTI+ community.
Interviewer (I): Good afternoon, Mr. Barskyi. What could you tell us about your work within our project? Have the trainings been effective in conveying to representatives of law enforcement agencies, the prosecution service, the legal profession, and civil society the importance of respecting the rights of members of the LGBTI+ community?
Vadym Barskyi (V.B.):
The analysis of issues related to monitoring the observance and protection of SOGI rights requires, first and foremost, a clear understanding of the conceptual and categorical framework used by lawyers and policymakers, social anthropologists and psychologists, as well as civil society actors.
SOGI rights are the rights of individuals based on their sexual orientation and gender identity, ensuring protection from discrimination.
According to the Yogyakarta Principles, developed at a meeting of human rights groups in November 2006, sexual orientation refers to a person’s emotional and sexual attraction to persons of a different gender, the same gender, or more than one gender. Thus, heterosexuality, homosexuality, and bisexuality are all sexual orientations.
The concept of “gender” is most clearly defined in the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (also known as the Istanbul Convention) as “the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men.” Ukraine ratified this Convention in the summer of 2022; however, the definition of “gender” itself still provokes debate.
Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond to the sex assigned at birth.
Many people identify as men or women. However, some people may identify as non-binary or as having no gender at all. A person’s gender identity may differ from the gender that society attributes to them based on external characteristics such as clothing or mannerisms.
Transgender persons identify with a gender different from the one assigned to them at birth.
In addition, intersex persons are individuals who “are born with sexual anatomy, reproductive organs, and/or chromosomal patterns that do not fit typical definitions of male or female.” This term is used to describe a wide range of characteristics. Intersex persons, like others, have a sexual orientation and a gender identity.
LGBTI+ is an acronym that unites various groups of people who differ from heterosexual and cisgender people and do not conform to traditional gender norms: lesbians, gays, bisexuals, transgender people, intersex people, queer persons, and other identities denoted by the “+” sign.
Now that we can confidently operate with the relevant terminology, we can move on to the protection of SOGI rights.
International and regional human rights conventions protect all persons regardless of their sexual orientation or gender identity. Currently, no international human rights treaty directly protects the rights of LGBTI+ persons. Nevertheless, the absence of a specialized convention does not mean that the rights of sexual minorities are not protected under international human rights law.
International human rights law continues to evolve, including through the activities of supranational human rights bodies that consider complaints of rights violations specifically in the context of SOGI rights. Decisions of such bodies may significantly affect the scope, interpretation, or implementation of international human rights law.
At the regional level, the most developed and effective mechanism for monitoring compliance with and protection of SOGI rights operates under the auspices of the Council of Europe.
This includes most of the statutory institutions of the Council of Europe, which formulate recommendations on ensuring SOGI rights within the legal space of the organization. In particular, the Parliamentary Assembly adopted a recommendation on discrimination based on sexual orientation or gender identity in 1981; the Congress of Local and Regional Authorities adopted Recommendation 211 (2007) on freedom of assembly and expression for lesbians, gays, bisexuals, and transgender persons; and the Committee of Ministers adopted a recommendation to member states in 2010 on measures to combat discrimination on grounds of sexual orientation or gender identity.
Special attention to the observance of SOGI rights in Council of Europe member states is paid by the Commissioner for Human Rights.
Since 1994, the European Commission against Racism and Intolerance (ECRI) has been operating, comprising representatives of all Council of Europe member states. Among other things, ECRI monitors issues related to the observance of SOGI rights in light of the European Convention on Human Rights, the case law of the European Court of Human Rights, and the recommendations of the Committee of Ministers and publications of the Commissioner for Human Rights. ECRI began examining intolerance related to SOGI rights during its fifth monitoring cycle (2014–2018). The sixth monitoring cycle, launched in 2019, also covers the SOGI rights of intersex persons.
In 2014, a Council of Europe unit on sexual orientation, gender identity and expression, and sex characteristics was established, as well as the European Network of Governmental LGBTI Focal Points, which includes 37 member states and Kosovo, including Ukraine. The Network brings together government officials responsible for SOGIESC-related issues in their countries, as well as members representing a range of international organizations.
I: Which ECtHR decisions on SOGI rights currently have the greatest practical significance for Ukrainian prosecutors and judges?
V.B.:
The European Court of Human Rights considers applications concerning violations of SOGI rights within the general framework of human rights violations provided for by the European Convention on Human Rights and its additional Protocols. However, in 2024 the Registry of the Court summarized the Court’s case law on the protection of SOGI rights in a dedicated handbook, available at:
https://ks.echr.coe.int/uk/web/echr-ks/rights-of-lgbti-persons
In recent years, the ECtHR has adopted a number of judgments finding that Ukraine failed to ensure respect for the SOGI rights of certain individuals. In particular, in the judgment of 1 June 2023 in Maymulakhin and Markiv v. Ukraine (application no. 75135/14), the Court held that “the State must ensure same-sex couples access to any form of legal recognition”; in the judgment of 11 April 2024 in Karter v. Ukraine, the Court stated that “the proper investigation and qualification of hate crimes is an obligation of the State”; and in the judgment of 23 January 2025 in Sverdlova and Shevchenko v. Ukraine, the Court held that “the State must ensure the exercise of the right to freedom of peaceful assembly, regardless of whether it concerns an LGBTI+ demonstration or not.”
I: In your opinion, how may the case Karter v. Ukraine influence the qualification of hate crimes in Ukraine?
V.B.:
The Criminal Code of Ukraine does not contain a definition of “hate crimes.” However, from the title of Article 161 of the Criminal Code of Ukraine — “Violation of equality of citizens on the grounds of their race, nationality, regional affiliation, religious beliefs, disability, and other characteristics” — it may be concluded that the list of characteristics on the basis of which equality may be violated is not exhaustive.
Such wording allows sexual orientation and gender identity to be included among the protected characteristics. Accordingly, crimes motivated by prejudice against LGBTI+ persons should be qualified under Article 161 of the Criminal Code of Ukraine.
I: What are the main challenges Ukraine faces in implementing ECtHR judgments in cases related to LGBTI+ rights?
V.B.:
The legal consequences of an ECtHR judgment finding a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights) may have different forms:
- compensation for damage caused (just satisfaction);
- restitutio in integrum (reopening of proceedings and re-examination of the case by a national court or administrative authority);
- legislative transformation or other general measures.
In my view, the greatest difficulties are associated with legislative transformation. Systemic shortcomings in legislation regarding the protection of SOGI rights cannot be remedied through isolated amendments; overcoming these deficiencies requires comprehensive and systemic changes to a significant body of national legislation.
I: Do you see any trends in the ECtHR’s approaches to hate speech and freedom of expression?
V.B.:
The case law of the European Court of Human Rights on hate speech is related to violations of Article 10 (Freedom of Expression) and Article 17 (Prohibition of Abuse of Rights) of the European Convention on Human Rights. The examination of such cases is always complicated by the need to strike a balance between freedom of expression and the protection of vulnerable groups.
Among the newer approaches of the ECtHR to hate speech are the recognition of Internet platforms and social media as environments in which such violations may occur, and the recognition as violations of Article 17 of the Convention of discriminatory statements even in the absence of direct calls for violence.
I: Thank you, Mr. Barskyi, for your time. We hope to continue our cooperation both within this project and in future initiatives.
This publication was prepared by the NGO “PROJECTOR” within a grant provided by the EU Project Pravo-Justice, implemented by Expertise France. Its content is the sole responsibility of the NGO “PROJECTOR” and does not necessarily reflect the views of the European Union.