Disclosure of Sexual Orientation or Identity in the Course of Proceedings

If information relating to sexual orientation or gender identity has been (or may be) disclosed in the case you are dealing with, please ask yourself the following questions.

Is sexual orientation and gender identity relevant to the case? 

Don't ask about these circumstances.

Issues related to sexual orientation and gender identity are rarely relevant. For example, the fact of being in a relationship may be relevant to the need to establish a couple's cohabitation in a case involving succession to the lease held by the deceased partner.

Sometimes talking about one’s private life can be difficult. LGBTI persons may feel anxious and reluctant to talk about such circumstances. They may find it more difficult than other people to talk about the details of their intimate lives.

Does the case concern someone’s action or behaviour based on the assumption that a given person has a specific sexual orientation or gender identity or because of a relationship with that person?

Go to the next point below.

If so, you may not need to ask about personal matters, but rather should focus on the perpetrator's motives.

Discrimination by assumption occurs in a situation where someone assumes that a person has a certain characteristic (regardless of whether this characteristic is present). For example, someone insults a man carrying a rainbow flag assuming that he is gay. Whether he is or isn’t gay is irrelevant, what matters is the perpetrator’s homophobic motive.

Discrimination by association occurs when someone experiences unequal treatment because of a bond, relationship or association with a person with a particular characteristic. For example, a mother receives less favourable treatment at the workplace because her daughter is a lesbian. 
Cf. the Coleman judgment of the European Court of Justice (17 July 2008, C-303/06) on discrimination against a carer of a child with a disability.

In Vejdeland and Others v. Sweden (9.02.2020, no. 1813/07), a case concerning the dissemination of homophobic leaflets, the European Court of Human Rights noted that “discrimination based on sexual orientation is as serious as discrimination based on ’race, origin or colour’...”. 

If you must ask about issues related to sexual orientation or gender identity: 

Advise the person concerned that you need to ask about these circumstances. 

Explain that these circumstances are relevant to the case.

Ask direct and specific questions (e.g. ask about the “partner”, not a “friend”).

Don't be sensationalised by this.

If this is something you would ask a heterosexual person, you should ask about it also a homosexual or transgender person. 

Make sure that the participant in the proceedings can answer these questions in conditions that ensure respect for their intimacy and privacy.