Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity

Ukrainian version

Country visit to Ukraine - 30 April to 10 May 2019

End of mission statement 

Distinguished persons,

a. The mandate of UN Independent Expert on 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. The mandate answers to the concern of the community of nations about the intolerance, discrimination and particularly egregious abuses against persons who are lesbian, gay, bisexual, and transgender (LGBT), as documented in the two reports produced in 2011 and 2015 by the High Commissioner for Human Rights and the four reports presented by the mandate to the General Assembly and the Human Rights Council of the Organisation. The duties conferred upon me by the community of nations are to bring visibility to the situation of violence and discrimination against LGTB persons, and to provide advice to States in relation to effective measures to address such violence and discrimination.

 

 b. From 30 April to 10 May 2019, at the invitation of the Government, I visited Ukraine with the purpose of studying the situation of violence and discrimination based on sexual orientation and gender identity. 

 

c. I visited the cities of Kyiv, Kharkiv, and Lviv, where I met all relevant branches of the State and ample groups of civil society organisations, human rights defenders and lesbian, gay, bisexual and trans persons with lived experiences. I also conducted a number of visits to places of deprivation of liberty, health service providers, community centres and the existing, NGO-run, shelter for internally displaced persons and marginalized members of the LGTB community.

 

 d. I would like to express appreciation to the Government of Ukraine for its invitation and for the excellent cooperation I enjoyed during the visit. In particular, I acknowledge the State’s receptiveness to my methodological approach and unimpeded access to all relevant officers and geographical locations, within the frame recognized by United Nations General Assembly resolutions 68/262, 71/205 and 72/190.

 

e. I would also like to express deep gratitude to the Ukrainian civil society and LGTB community. Their dedication, professionalism and determination are a great source of inspiration to the mandate, and I appreciate very highly their generosity when sharing stories, views and information. 

 

f. I further wish to thank the United Nations Human Rights Monitoring Mission in Ukraine (HRMMU) for the excellent assistance and collaboration provided throughout my visit.

 

g. My mandate relates to a thematic approach that, while of fundamental importance to a great proportion of persons around the world, deeply connects with issues in relation to which society holds varying, oftentimes passionate views. Without exception, I am thankful to all interlocutors that engaged with the mandate in a candid, compassionate and genuine exchange.

 

h. The observations I am presenting today are preliminary and non-exhaustive. I will draft a more comprehensive and updated report that will be presented to the United Nations Human Rights Council in June 2020.

Diversity in sexual orientation and gender identity is mandated to secrecy as a result of stigma

Pride events are attacked as an expression of censorship and hatred

LGBT persons are affected by the conflict in highly specific ways

Without data, the authorities are – knowingly – flying in the dark without instruments

The legislation is adequate, but has been proven insufficient in practice

Political actors abide by the law, but do not show leadership to support freedom and equality for persons of diverse sexual orientation and gender identity

LGBT persons are targeted for illegitimate purposes

SOGI public policy commitments remain largely on paper, waiting for effective implementation

Social inclusion remains the fundamental task of Ukrainian authorities

In the family, …

In the education sector

To promote economic well-being

To promote better health

Conclusion

A choice for political leadership: taking a stance for freedom and equality

An opportunity for legislation: becoming an agent of change

An obligation for justice: acting decidedly to eliminate impunity

1. Lesbian, gay, bisexual, trans and gender diverse persons exist – and have existed – in all latitudes, in every moment of history, and in every social, economic and cultural setting. Even if nobody has determined with exactitude how many LGBT persons exist in the world at a given moment, we know enough to ascertain, without fear of mistake, that a significant proportion of the world population experiences same-sex sexual attraction or diversity in gender identity. No credible evidence has ever pointed to the conclusion that people of any race, colour, sex – and certainly not a given nationality – are exempted from this rule.
2. Yet, sexual orientation and gender identity, these most human of human traits, lie at the base of much violence and discrimination perpetrated every day in all corners of the world. The mandate of the Independent Expert on Protection from Violence and Discrimination based on Sexual Orientation and Gender Identity visited Ukraine from 30 April to 10 May 2019 with the purpose of observing this problematic, understand how it affects the lives of LGBT people in the country, and formulate recommendations for State action.
3. In this instance, a series of positive findings facilitate that the examination of this issue is done in a dispassionate manner. After exhaustive dialogue with a multitude of stakeholders, the Independent Expert has received no indication of gross or massive acts of individual violence against lesbian, gay, bisexual, trans or gender diverse persons. In addition, the Independent Expert observes (and all interlocutors agree) that, in its letter and its implementation, Ukrainian legislation does not condone discrimination or violence on the basis of sexual orientation and gender identity: it is free from the scourge of criminalization, contains general anti-discrimination provisions and, in a few instances, includes explicit protections.
4. Yet, despite these significant achievements, it cannot be said that gay, lesbian, bisexual, trans or gender diverse persons in Ukraine are truly free and equal: societal views remain highly contaminated by stigma, public officers consider that sexual orientation and gender identity is not to be explored or talked about saying that “society is not ready,” and LGBT persons themselves feel that keeping their identity hidden is a key to survival. “I have just one life” said a lesbian woman to me during a meeting while discussing harassment and threats: “I cannot just give it up.”
5. This state of affairs is not surprising. Despite values of democracy and tolerance widely embraced by Ukrainians, negative social attitudes towards LGBT persons are widespread. Sociological surveys conducted in 2016 and 2018 showed that 60% of Ukrainians have negative attitudes towards LGBT people and 46% supported restricting the rights of “sexual minorities”. In 2018 leading Ukrainian churches launched a broad campaign of appeals to the Ukrainian authorities to protect “traditional values” and “traditional family,” as a part of which State and local authorities, the parliament and the Office of the Ombudsperson received thousands of electronic petitions aimed at "prohibiting gay propaganda in Ukraine and protecting traditional family values".
6. I have the impression that, as a result, LGBT people try to blend in the general population, and that strong incentives are in place not to do anything that appears to shock, disrupt or shake this perception of social harmony. Doing so will expose them to severe discrimination in employment, education and healthcare. As a result, most members of the community who are here among you, who are your brothers and sisters, sons and daughters, neighbours, friends, doctors, and lawyers, do not dare to come out. Their true identity remains invisible.
7. In my view, the main challenge of the Ukrainian State is to adopt the measures necessary to identify, analyze and ultimately dismantle the root causes of this invisibility.
8. Pushed into secrecy, diversity – rather than a value to be celebrated – becomes an artifice of blackmail. For example, before and during my visit, I received reports of blackmail by police and private actors. This lack of visibility in data and in policy extends through all of the components of the Justice Sector. I visited several centres of detention and observe that no state bodies conduct monitoring of the situation of LGBT persons in detention, and there are no policies or guidelines on the detention of LGBT persons, or specific trainings of prison personnel on sexual orientation and gender identity.
9. More importantly, when LGBT persons refuse to conform and seek visibility – or are perceived to seek visibility – hostile individuals and groups react with violence. According to the Organisation for Security and Co-operation in Europe (OSCE), only 11% of all hate crimes recorded by the police in 2017 were on the basis of sexual orientation or gender identity but such crimes represented 52% of all the physical assault. In comparison, for the same period civil society organizations reported 110 incidents on the ground of homophobia and transphobia to the OSCE, which represents almost 52% of all hate incidents recorded in 2017. Local activists consistently claimed that in cases in which police were asked to investigate threats, officers have answered in no uncertain terms: “there is nothing we can do,”, a situation exacerbated by “the absence of systematic reporting or recording”. The impunity resulting from the absence of an effective investigation and relevant legal categorization of these offences as hate crimes sends a clear message: violence against lesbian, gay, bisexual and trans persons is tolerated.
10. The area in which this problematic seems to be more evident is that connected to public assemblies, demonstrations and events. Threats and violence by nonstate actors sometimes prevent certain groups from holding events, particularly those advocating for equal rights for LGBT people. But I have heard from the civil society a determined will to assemble and express itself through events in public spaces. Over the last few years, this has led to attacks by extreme right-wing groups and, initially, to poor, inadequate or simply non-existent police responses. This trend spares no location in the country with incidents reported in Chernivtsi in 2018 (May), Ivano-Frankivsk in 2018 (February), Kyiv in 2017 (May, June, July, September) and 2018 (November), Kharkiv in 2017 (May) and 2018 (July, September and October), Kremenchuk city in 2016 (November), Lviv in 2016 (June), Mykolaiv in 2017 (September), Poltava in 2018 (March), and Zaporizhia in 2017 (May). In most of these instances, the Independent Expert received testimony to the effect that police just “looked on.”
11. The violence reported during these attacks, which has included forceful entry into places of assembly, destruction of property, attacks by smoke grenades or gas, and pushing and beating of persons, has caused significant damage to participants and police officers, including spray burns and injuries. Based on experience, it is also possible to suspect that these groups, communities and individuals may suffer long-lasting psychological damage and mental health issues. Most importantly, it has caused a fracture in the trust that the community has in the State and the police, a damage that will be long-lasting and that will require very significant measures to be repaired, and they are possibly causing a “chilling effect” on communities and persons that wish to exercise their right to freedom of peaceful assembly and expression.
12. It is my opinion that this is not a problem stemming from the law, but rather implementation of the law. The Ukrainian constitution guarantees the right to peaceful assembly and, in effect, I note a positive trend in the reported response of authorities, with improved police protection reported in Kyiv in 2017 (June) and 2018 (June), Kryvyi Rih in 2018 (June) and Odessa in 2018 (June), and investigations having initiated in relation to the attacks in Kyiv in September 2017. These result apparently from enhanced cooperation with civil society organizations prior to the events, the identification of tolerance contact points and trainings to increase awareness, sensitivity and tolerance of police officers.
13. However, despite these positive developments, the vast array of incidents that have been described have all one element in common: the total impunity of the perpetrators.
14. While I did not visit the Autonomous Republic of Crimea and the City of Sevastopol, Ukraine, temporarily occupied by the Russian Federation, or the territories controlled by self-proclaimed ‘Donetsk people’s republic’ and self-proclaimed ‘Luhansk people’s republic,’ I have received information to the effect that hate incidents based on sexual orientation and gender identity have increased and intolerance has become more acute, which might be due to the application of laws criminalizing so-called “propaganda of same-sex relationships.” As a result, many LGBT persons would have fled the said regions to become internally displaced persons.
15. Conflict and humanitarian disasters affect LGBT persons in highly specific ways, notably double discrimination in the access of work, housing, social services and health care institutions, as well as acute social isolation. In the particular case of trans persons, reliance on official documentation to exercise freedom of movement, accessing humanitarian assistance, or rebuilding a life, is usually a significant barrier.
16. During every meeting with State authorities I explored the area of data, which interests me deeply because of its connection with good policy and law making. I observe that no State authorities reported gathering or managing data related to sexual orientation and gender identity.
17. The Main Investigation Department of the National Police collects statistics on hate crimes. Statistics cover crimes based on the grounds of racial, national or religious intolerance, as well as bias-motivated crimes against LGBT people and people with disabilities. Although the law does not include these latter two groups as protected characteristics, the information is mined through case-by-case analysis, something that is possible because of the low numbers of cases implicated.
18. For the year 2018, the police registered 15 criminal offenses against LGBT people, compared with 358 cases of violence, discrimination and other violations motivated by homo/transphobia recorded by scivil society organization.
19. Sexual orientation and gender identity are not included as explicitly protected grounds of discrimination in the Constitution, the Law of Ukraine “On Principles of Prevention and Combating Discrimination in Ukraine”. However, both instruments use open-ended lists of grounds, with an explicit list of characteristics followed by the words “or other characteristics”, thus allowing for the possibility for these grounds to be protected through judicial interpretation.’
20. Sexual orientation and gender identity have been articulated explicitly as grounds for protection in two pieces of legislation: the Code of Labor Laws and the law on the legal status of missing persons. In addition, it has been introduced in a number of secondary legislation and state policies. However, Ukraine’s hate crime legislation does not explicitly include sexual orientation and gender identity as aggravating circumstances. Therefore, crimes that should be considered hate crimes, in the event they are investigated, are often characterized as lesser charges, such as hooliganism.
21. As outlined above, there is progress in official stances towards LGBT persons in Ukraine. Notably, certain political appointees have taken stand for equality by acting to dispel myths connected to sexual orientation and gender identity. Notably, the Acting Minister of Health has recently taken proactive steps to inform the population that homosexuality is not a disorder, and a Ministry of Internal Affairs order requires police staff "to respect the dignity of every person, treat everyone fairly and impartially regardless of [...] sexual orientation."
22. However, as a general rule, high-ranking government officials do not demonstrate unequivocal and public support for the rights of LGBT people or an unbiased approach to LGBT Ukrainians. This is most remarkably noticeable through the example of the campaign of appeals to the local and state authorities with demands to ban "homosexual propaganda" under the banner of "protecting the traditional family" continues in Ukraine. Although some appeals have received the formal answer that legislative initiatives to restrict constitutional rights are unconstitutional, several dozens of local councils have adopted corresponding homophobic appeals to the government after consideration of electronic petitions or on the initiative of their members.
23. I am particularly concerned by the expressions of State officers that clearly discriminate or incite to hatred towards LGTB persons. During my visit I received reports of Heads of District State Administration, Mayors, members of parliament, and professors from public Universities that have engaged in acts that could be qualified as hate speech or express hate and incite to discrimination based on sexual orientation and gender identity, all while exercising public functions and utilizing public resources.
24. It is important, to that effect, to refer to what is protected speech and what reaches the threshold of incitement to advocacy of discrimination and violence. Hate speech usually refers to “expressions that advocate incitement to harm (particularly, discrimination, hostility or violence) based upon the target’s being identified with a certain social or demographic group. It may include, but is not limited to, speech that advocates, threatens, or encourages violent acts. Hate speech is not the same as “hate crime,” which is based on conducts outside of the protection of the right to freedom of expression.
25. In the light of the obligations to protect and promote human rights of everyone that are incumbent upon the State, public officials must ensure that when they exercise their freedom of expression, they are not causing fundamental rights to be ignored. In this connection I am concerned about public officers in Ukraine promoting harmful stereotypes and expressing discriminatory views. When high-level officials engage in hate speech, they undermine not only the right to non-discrimination of affected groups, but also the faith of such groups in State institutions and, thus, the quality and level of their participation in democracy. For this reason, I call on authorities to refrain from disseminating hateful expressions against LGTB persons, and I exhort them to formally denounce hate speech. In the absence of this, the State should consider the imposition of disciplinary measures to those officers involved in hate speech.
26. A preventive policy should include the collection and analysis of data on hate speech, with the purpose of assessing different forms of hate speech, perpetrators involved, reasons and circumstances for its emergence, and their intended audiences.
27. In Ukraine churches have an integral part in defining public perceptions of LGBT persons and I have been informed that they take active stance in the promotion of bills or public policy, or in blocking legislation aimed at protecting the rights of LGBT persons or other groups in society, such as the Istanbul Convention due to its use of terms such as “sexual orientation”, “gender”, and “gender identity”, and a resolution of the Public Ministry of Health cancelling the legislative ban on HIV-positive and transgender people adopting children.
28. Violence by extreme right-wing groups promoting hatred put LGBT people and human rights defenders, among other, at risk. Reportedly there are at least 20 far-right informal groups currently active in Ukraine that commit homophobic and transphobic crimes, and some of them stalk LGBT people, beat them up, humiliate them, film the event, and upload footage to the Internet.
29. During my visit I was particularly interested in examining the impact of the National Strategy and National Action Plan for the promotion of Human Rights, as well as other programs and plans aimed at promoting the enjoyment of human rights.
30. I am pleased to observe significant developments stemming from the National Human Rights Action Plan, such as the implementation of the policy on prevention of discrimination (in law enforcement, border guards, as well as in training programmes to prepare lawyers) and new rules for gender-affirming treatment by trans persons and access to legal gender recognition.
31. I am concerned that significant sections and commitments are still pending. Among them:
    a. the introduction of sexual orientation and gender identity in the Law of Ukraine "On Principles of Prevention and Combating Discrimination in Ukraine" regarding prohibition of discrimination on grounds of sexual orientation and gender identity;
    b. the amendment of the Criminal Code of Ukraine to ensure punishment for crimes committed under motives of intolerance on grounds of sexual orientation and trans-sexuality, and to decriminalize contagion by HIV and other infectious diseases;
    c. the medical standards to treat intersex persons;
    d. the development and submission of a law to legalize registered civil partnerships for both opposite-sex and same-sex couples in Ukraine;
    e. lifting the ban on adoption of children, particularly by transgender and HIV-positive people;
    f. development and implementation of the standards of social work (for school psychologists, social workers) with LGBT teenagers and young people;
    g. development and adoption of common guidelines by the MIA and Prosecutor General of Ukraine to investigate hate crimes by the police taking into account the OSCE methodology; and
    h. development and inclusion of a course on effective and proper investigation of hate crimes in the training of law enforcement officers
32. It should be noted that the Action Plan provides for the development of bills and their remission to the Cabinet of Ministers for approval and subsequent submission to the Verkhovna Rada, but naturally not for their adoption. So even in case of the fulfilment of these items of the Action Plan, their final approval by the Parliament as laws is not guaranteed. There is no doubt that any draft laws aimed at protecting the legitimate rights and interests of Ukrainian LGBTs will face opposition by the majority of MPs that can be overcome only through joint efforts of civil society, the government of Ukraine and its international partners, as was demonstrated by adoption of the antidiscrimination amendment to the Code of Labour Laws in November 2015.
33. Each and every lesbian, gay, bisexual or trans person I met underscored how important it is for them to be able to live a happy and fulfilling life to be accepted and loved by their family and to be able to create their own. During the visit, I heard testimonies of teens and young adults who have been rejected by their family and ousted from their home but I have also heard testimonies of parents who showed support, love and acceptance. I am encouraged by initiatives of parents and allies of LGBT people who advocate for the human rights of LGBT people, raise awareness and educate professionals to break down the barriers of ignorance and intolerance that create so much suffering and lead to exclusion. Many LGBT remain invisible by fear of being rejected by their loved ones. Such initiatives are important to create an environment that is inclusive and to signal to LGBT people that they have the right to live open and free.
34. Based on usual global estimates, the number of LGBT students in Ukraine would account for between 120,000 and 240,000 persons. However, there seems to be a total absence of knowledge about their needs, their well-being, abuses and challenges they face and the impact on their educational achievements. I recommend that the government conduct a survey to learn about the challenges and the needs of LGBT pupils and students in Ukraine that will then inform legislation and policies.
35. I welcome measures taken by the Ministry of education to counter discrimination and increase tolerance, including through the revision of textbooks, the appointment of advisers on gender equality and non-discrimination in each oblast and the introduction of trainings. I also take note of the very positive project launched jointly by the Office of Juvenile Prevention of the National Police and the Ukrainian Institute for Research and Extremism to counteract bullying in schools in 2018.
36. cally protecting LGBT students from violence and discrimination in educational settings. The lack of targeted measures must be put in perspective given the high level of stigma and prejudice towards LGBT people in the society and the need to provide objective information about sexual orientation and gender identity. The government should consult and engage with civil society organizations to design measures necessary to make educational settings inclusive of LGBT students.
37. According to a survey conducted by a non-governmental organization in 2017, 49% students feel unsafe at school because of their sexual orientation or gender expression, 88.5% of LGBT students and pupils suffered from verbal harassment in schools and 53.5% from physical abuse in the course of the last year. Another organization documented 23 cases of human rights violation in the sphere of education in 2018, including bullying, threats, insults, physical violence, hate speech and breach of the right to privacy. I welcome the adoption of a new law to combat bullying that help identify and respond to such cases and oblige schools to adopt and implement anti-bullying policy. I recommend that such policy be inclusive to LGBT students and its implementation monitored to ensure its effectiveness to reduce homo/transphobic bullying. In view of the low level of education regarding diverse sexual orientations and gender identities among the general population, I recommend to introduce trainings for school staff and school psychologists, as well as awareness raising measures among parents and students. I also suggest to establish LGBT friendly complaints and referral mechanisms and to create a network of trained teachers and school psychologists as first contact points in cases of homo/transphobic bullying, harassment and violence.
38. The labour code is one of the only laws in Ukraine that specifically protects from discrimination based on sexual orientation or gender identity. Despite legal protection since 2015, courts have never been presented with a case of discrimination based on these grounds, allegedly due to poor legal literacy and implementation mechanisms.
39. In contrast, a non-governmental organization recorded 24 cases of violations against LGBT persons in the field of work in 2018 and another source documented 10 cases of discrimination, mobbing and stigmatization against lesbian and bisexual women at the workplace in the Kherson region from 1 December 2018 to 1 March 2019.
40. According to human rights organizations, discrimination in employment remains one of the biggest problems, especially for trans people and in particular when the legal name in the passport does not match with the appearance of the person. Several interlocutors met during the mission said they had been dismissed or denied employment because of their sexual orientation or gender identity, none of them, however, brought their case before the court.
41. More needs to be done to raise awareness about legal protection from discrimination, to inform LGBT people about their rights at the workplace, and to provide legal aid services free of stigma and discrimination.
42. During the mission, I was pleased to hear about non-governmental initiatives to engage with the business sector with a view to foster inclusiveness at the workplace, including for LGBT employees, but also to create spaces and services free of stigma and discrimination.
43. In the field of health, a number of legislative reforms positively impacted on the provision of treatment and access to health care services by trans persons and on access to stigma-free health services to LGBT persons.
44. I would like to highlight in particular:


45. a. The Concept of the Public Health System Development, approved by the Cabinet of Ministers of Ukraine in 2016, stipulates that the right to health and health care is a basic human right regardless of sexual orientation and gender identity. b. The approval in 2016 of a unified clinical protocol of medical care for trans persons. c. The adoption of tailored HIV programmatic planning and intervention efforts tailored towards men who have sex with men and their sexual partners. d. The recent health reform that has helped to improve the experience of LGBT persons accessing health care services as persons can choose their doctor and therefore select someone tolerant.


46. As a result, Ukraine has experienced steady decreases in stigmatization of LGBT populations over time. Much, however, remains to be done, and a number of discriminatory legal provisions remain in the books, such as the prohibition to donate blood by persons having “homosexual relations” and the ban to adopt children by people living with HIV and persons diagnosed with F64 according to the tenth revision of the International Statistical Classification of Diseases and Related Health Problems (ICD-10). I heard several accounts of lesbian women and trans people in particular, who had to endure patriarchal and discriminatory attitude from their doctor and gynaecologist. As part of the health reform, patients have now more flexibility to choose their own primary care doctor but this does not yet extend to specialists who may subject LGBT patients to homo/transphobic comments and attitudes. As a result of the health reform, a civil society organization created an on-line platform of services offered by LGBT friendly family doctors. I welcome such initiative which should be expanded as such services are mainly available in Kyiv. In other parts of the country information about such doctors and tolerant specialists is mainly shared by word of mouth.
47. Since 2016 important measures have been adopted to facilitate access to gender-affirming treatment by trans persons. The approval of a Unified clinical protocol of care for gender dysphoria by the Ministry of Health in September 2016 developed with the participation of civil society organizations has significantly simplified the procedure of gender transition and repealed several abusive requirements, such as mandatory assessment in psychiatric treatment facility and divorce.
48. Importantly, the Protocol states that transsexuals, transgender people and gender non-conforming people cannot be considered as sick and that they have to be cured for the distress caused by gender dysphoria. It also explicitly specifies inadmissibility of bullying of transgender individuals as this can result in development of chronic depression, anxiety and suicidal thoughts and states that patients with gender dysphoria shall not be refused to exercise the right to use modern reproductive technologies or the right to adopt. Pursuant to the Protocol, the treatment now includes a psychotherapy during no less than two years and a hormone therapy as mandatory stages for individuals who want to change their gender identity.
49. I welcome these measures and would like to draw the attention of the government to the revision of the International Classification of Diseases by WHO and the removal of the trans categories from the chapter on mental and behavioral disorders. In the 11th edition of the Classification, a new category related to trans identities has been created in a chapter on conditions related to sexual health with the aim of facilitating access to gender-affirming treatment. The World Health Assembly will consider the new Classification later this month and I encourage Ukraine to swiftly implement the elements that relate to the removal of the trans categories from the chapter on mental and behavioral disorders, including the adoption of all measures conducive to eradicating the conception of gender diversity as a pathology from all aspects of everyday life.
50. The unified clinical Protocol has also simplified the procedure to change legal gender and removed some intrusive requirements, such as sterilization, divorce and extensive psychiatric examination. According to the new procedure, the change of legal gender should be done at the request of a patient and on the basis of a medical certificate on change of gender identity using irreversible medical intervention. I am concerned that the current procedure retains requirement that are in my view unnecessary and that delay the gender recognition procedure, hence leaving trans persons in a situation where their legal documents do not match their physical appearance during several months which lead to violations of their rights. For instance, during the transition period, several trans persons explained that they were not able to find a job, rent an apartment, or were facing obstacles when travelling due to the discrepancy between their appearance and their legal documents. Further, I am concerned that the request to undergo “irreversible medical intervention” may be interpreted by some medical experts as a requirement of sterilization.
51. I encourage Ukraine to eliminate all abusive requirements as prerequisites for change of name and legal sex or gender, including medical procedures related to transition and undergoing medical diagnosis, psychological appraisals or other medical or psychosocial procedures or treatment. The process to change name and gender markers on identification documents of trans persons should be based on self-determination of the applicant and be a simple administrative process exempt of requirements such as medical and/or psychological or other certifications that could be unreasonable or pathologizing. In addition, measures should be adopted to eliminate the social stigma associated with gender diversity, including the development, implementation and evaluation of an education and sensitization campaign.
52. During the mission, I have also visited an HIV clinic and learned about the good work that they – and others – are doing to reach out to key populations, including men having sex with men.
53. Ukraine remains one of the countries with high HIV prevalence and it has the second-largest HIV epidemic in Eastern Europe and Central Asia. In 2017, 241,000 people were living with HIV and annual new HIV infections have risen from 9,500 in 2010 to 15,680 in 2017. The epidemic is concentrated in key populations, including men who have sex with men. Estimates suggest that there are around 181,000 men who have sex with men (and transgender women) in Ukraine, with an HIV prevalence of 7.5% among men who have sex with men compared with 1% of the general population. Behavioral surveys show that men who have sex with men have the highest rate of new infections among key populations; have the lowest knowledge of their HIV diagnosis and the lowest coverage by ART; and have the lowest rates of prevention coverage.
54. To respond to the epidemic, Ukraine has embarked on a Fast-Track strategy to end the AIDS epidemic by 2030. Through the National HIV/AIDS Programme 2014-2018, the country has adopted a patient-oriented strategy combined with a focus on prevention programmes targeted at key populations and increased access to treatment. As a result of this strategy, the rate of new infections started to slow and the number of people accessing treatment to increase – due, in part, to civil society and community engagement.
55. In 2017, it has also committed to gradually transit the Prevention programme among key populations to the state governance and domestic funding for the basic prevention package. Despite the adoption of progressive policies since 2014, stigmatisation and social marginalisation of men who have sex with men and LGBT people continues to be high and these populations remain hidden and scared to engage with health services where HIV testing has traditionally been carried out. This is paired with significant HIV-related stigma and discrimination. To tackle these issues, Ukraine has adopted a Strategy for Comprehensive Response to Human Rights-related Barriers to Accessing HIV and TB Prevention and Treatment Services until 2030 and a related Strategic Plan for the period 2019-2022 which is to be considered on 23 May 2019. If adopted, new policies and law reforms are expected to address some of the structural and legal barriers to accessing HIV services.
56. I commend the important programmatic measures adopted to take into consideration men who have sex with men– a population that overlaps with gays - in the fight against the AIDS epidemic. I would however like to add a word of caution not to exclude other members of the LGBT community from counselling, testing and treatment services.
57. In addition, I note with concern that the health needs of lesbian and bisexual women are not considered, and I recommend undertaking a comprehensive assessment of the needs of lesbian, bisexual, trans women and men, and gay persons and to adjust public policies to take the uniqueness of each of these populations into consideration and address their needs in a tailored manner.
58. I am encouraged by the legal and historical developments of the promotion and protection of the human rights of LGTB persons in Ukraine, and I believe that the Ukrainian State is at a juncture where it can take action to make significant progress in that connection.
59. A first choice is for the political leadership. LGTB issues have never been irrelevant for society, and they have always been the object of heated debate among groups and communities that see their views challenged by more comprehensive and progressive views of human rights. But the extent to which a society is ready to embrace diversity should never be determined by the fear of that debate, or the acceptance that the rights of some should be unduly limited.
60. In that connection, I recommend that the Ukrainian authorities take a decided stand for equality on the basis of sexual orientation and gender identity, and the adoption of the measures connected to that equality. In that connection, I am of the view that the National Human Rights Action Plan is an excellent blueprint and that the effective adoption of the measures described therein would be a significant step to bring Ukraine in full conformity with its international obligations in this field.
61. In addition, I recommend that the State urgently undertake a nationwide educational campaign aimed at countering misinformation, deconstructing harmful myths and stereotypes about LGBT people. It is crucial to provide objective, impartial and scientific information on the issues of sexual orientation and gender identity and to foster understanding and tolerance instead of hate and prejudice.
62. I am also of the view that the legislation in Ukraine requires the adoption of some of the measures foreseen in the National Action Plan, including the introduction of sexual orientation and gender identity as prohibited grounds for discrimination in the respective law, and specific protected grounds in the Criminal Code.
63. Finally, the State is under a particular obligation to act decidedly to end the impunity of crimes perpetrated on the basis of gender identity or sexual orientation. This obligation extends to all of the elements in the chain of justice: police, prosecution, courts and penitentiary system, as well as all connected State services, including systems of legal aid.