Responding to Hate Speech against LGBTI people

In this policy paper, ARTICLE 19 proposes the response to “hate speech” targeting people on account of their sexual orientation or gender identity. The proposal is based on the review of international standards and domestic trends countering the advocacy of hatred that constitutes incitement to hostility, discrimination or violence (“incitement”) specifically, and “hate speech” more generally, on these bases.

With this paper, ARTICLE 19 aims to respond to growing demands from human rights advocates, policy makers and the general public, to define “hate speech” targeting lesbian, gay, bisexual, transgender and intersex (LGBTI) people and recommend responses within a framework that protects and promotes the right to freedom of expression for all. The paper is guided by the principle that coordinated and focused action to promote the rights to freedom of expression and equality is essential for fostering a tolerant, pluralistic and diverse democratic society in which all human rights can be realised, including those of LGBTI people.

ARTICLE 19 believes that all domestic prohibitions of incitement should include sexual orientation and gender identity as protected characteristics. However, such prohibitions should conform to international standards on limiting the right to freedom of expression and information. Prohibitions that unnecessarily censor contentious viewpoints are often counter-productive to the aim of promoting equality for LGBTI people and fail to address the underlying social roots of the kinds of prejudice that homophobia and transphobia are symptomatic of. In most instances equality is better promoted through positive measures to increase understanding and tolerance, rather than through censorship of views perceived as injurious to LGBTI people or any other community.

Under certain limited circumstances, the state is obliged by international human rights law to prohibit the advocacy of hatred against LGBTI people that constitutes incitement to discrimination, hostility, or violence. These prohibitions should primarily be through civil and administrative laws, and only in the most serious cases should criminal sanctions be imposed. The criminal law should not be the default response to instances of incitement if less severe sanctions or measures could achieve the same effect. ARTICLE 19 also recommends numerous measures for States to adopt to ensure uniform and consistent implementation of their obligations, as well as measures that should be offered to victims of incitement.

ARTICLE 19 hopes that by establishing clear boundaries between permissible and impermissible expression, and by providing robust criteria to assist in this determination, this paper will serve the purpose not only of a legal and policy review but also of contributing to ensuring that all people are able to enjoy both the right to freedom of expression and the right to equality.

Read the policy