DIRECTOR

Please quote: DLAPIL1/2018 JP/DG

11 January 2018
Aide-memoire

Re: Council of Europe Convention on preventing and combating violence against

women and domestic violence (CETS No 210) – scope of obligations

1. This aide-memoire contains a legal analysis seeking to clarify obligations arising

from the ratification of the “Council of Europe Convention on preventing and combating
violence against women and domestic violence” (CETS 210, 2011 - hereinafter “Istanbul
Convention” or “Convention”), in particular as regards the legal recognition of a ‘third
gender’ and same-sex marriages.
2. At the outset, it should be emphasised that the interpretation of an international treaty
is primarily the responsibility of the parties and treaty bodies. The present analysis intends to
provide advice and guidance as part of the legal assistance tasks of the Directorate of Legal
Advice and Public International Law (DLAPIL) in relation to a Council of Europe
instrument.
3. The analysis first outlines the purpose of the Convention and obligations deriving
from its ratification (1.). As to its central meaning to the Convention, the analysis draws on
the meaning of the term ‘gender’ (2.). The analysis then focuses on the questions whether the
Istanbul Convention implies a legal obligation to recognise a third sex (sometimes although
misleadingly referred to as ‘third gender’) (3.) and to allow same-sex marriages (4.).

1. Purposes of the Convention and obligations deriving from its ratification

4. The purposes of the Convention are spelt out in its Article 1:
“Article 1 – Purposes of the Convention
1) The purposes of this Convention are to:
a) protect women against all forms of violence, and prevent, prosecute and eliminate
violence against women and domestic violence;
b) contribute to the elimination of all forms of discrimination against women and
promote substantive equality between women and men, including by empowering
women;
c) design a comprehensive framework, policies and measures for the protection of
and assistance to all victims of violence against women and domestic violence;
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d) promote international co-operation with a view to eliminating violence against

women and domestic violence;
e) provide support and assistance to organisations and law enforcement agencies to
effectively co-operate in order to adopt an integrated approach to eliminating
violence against women and domestic violence.
2) In order to ensure effective implementation of its provisions by the Parties,
this Convention establishes a specific monitoring mechanism.”
5. From a substantive point of view, the Convention contains both human rights and
criminal law provisions. It requires state parties to criminalise several conducts which
amount to violence against women and domestic violence. The conducts encompass forced
marriage, female genital mutilation, forced abortion, stalking, sexual harassment, physical
and psychological violence and sexual violence. Offences established in the Convention
must be punishable by effective, proportionate and dissuasive sanctions (Article 45), taking
into account their seriousness and aggravating circumstances.
6. As for preventive and protective measures, States must “take the necessary measures
to promote changes in the social and cultural patterns of behaviour of women and men with
a view to eradicating customs, traditions and all other practices which are based on the idea
of the inferiority of women or on stereotyped roles for women and men” (Article 12 (1) of
the Convention), and provide support services for victims of violence, including legal and
psychological counselling, financial assistance, housing, education, training and assistance in
finding employment (Article 20), specialist support services (Article 22), shelters (Article
23), and telephone helplines (Article 24). In order to implement the obligations set out the
Convention, States must allocate “appropriate financial and human resources” (Article 8).

2. The use of the term ‘gender’ and its consequences for domestic implementation of
the Convention
7. The Convention is based on the premise that violence against women cannot be
eradicated without investing in equality among women and men. As the Explanatory report
explains, “research has shown that certain [gender] roles or stereotypes reproduce
unwanted and harmful practices and contribute to make violence against women
acceptable” (paragraph 43). Only effective gender equality and a change in attitudes can
truly prevent such violence.
8. ‘Gender’ is thus a central term used throughout the Istanbul Convention. According
to Article 3 subparagraph (c) of the Convention the term gender, based on the two sexes,
male and female, means “the socially constructed roles, behaviours, activities and attributes
that a given society considers appropriate for women and men”.1 The Istanbul Convention

1
See also the CEDAW Committee’s understanding of ‘gender’. Accordingly, the “term gender refers
to socially constructed identities, attributes and roles for women and men and society’s social and
cultural meaning for these biological differences resulting in hierarchical relationships between
women and men and in the distribution of power and rights favouring men and disadvantaging
women. This social positioning of women and men is affected by political, economic, cultural, social,

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considers the definitions of ‘gender’ and ‘sex’ as two different, separate concepts, as
confirmed both by the non-discrimination principle set out in Article 4 (3) of the Convention
and the Convention’s explanatory report which emphasizes in paragraph 43 that the “term
‘gender’ under this definition is not intended as a replacement for the terms ‘women’ and
‘men’ used in the Convention.”
9. Having in mind the correlation between gender inequality and gender stereotypes on
the one hand, and the frequent occurrence of violence against women on the other hand,
Article 6 of the Convention requires parties “to include a gender perspective in the
implementation and evaluation of the impact of the provisions of this Convention and to
promote and effectively implement policies of equality between women and men and the
empowerment of women.” Along these lines, Article 12 (1) of the Convention requires
parties to take the necessary measures to eradicate harmful prejudice, customs, traditions and
other practices which are based on the idea that women are inferior to male or on harmful
gender stereotypes.2 For example, Article 14 (1) of the Convention requires from states to
include teaching material on non-stereotyped gender roles in formal curricula. This provision
aims at empowering girls and boys, from an early age, to pursue life options and
relationships that are not limited to traditional roles for men (for example as breadwinners)
and women (as mothers and carers). However, in view of the above mentioned definition of
‘gender’, this obligation does not imply that member states have to include in formal
curricula teaching material specifically on homosexuality and/or transgender.
10. In the same vein, it should be noted that the Convention does not oblige state parties
to recognise the status of refugee for transgender or intersex persons under Article 1 of the
1951 Convention relating to the Status of Refugees (Refugee Convention). According to
Article 60 (2) of the Istanbul Convention, state parties must “ensure that a gender-sensitive
interpretation is given to each of the [Refugee] Convention grounds and that where it is
established that the persecution feared is for one or more of these grounds, applicants shall
be granted refugee status according to the applicable relevant instruments.” As the
explanatory report clarifies in paragraph 312,
“[t]he obligation contained in this provision is two-fold. On the one hand, it requires Parties
to ensure that a gender-sensitive interpretation is given to each of the 1951 Convention
grounds. The well-founded fear of persecution must be related to one or more of the 1951
Convention grounds. In the examination of the grounds for persecution, gender-based
violence is often seen to fall within the ground of “membership of a particular social
group”, overlooking the other grounds. Ensuring a gender-sensitive interpretation implies
recognising and understanding how gender can have an impact on the reasons behind the
type of persecution or harm suffered. On the other hand, paragraph 2 requires Parties to
allow for the possibility of granting refugee status should it be established that the
persecution feared is for one of these grounds. It is important to note that adopting a gender-
sensitive interpretation does not mean that all women will automatically be entitled to

religious, ideological and environmental factors and can be changed by culture, society and
community” (para. 5).
2
See also Article 5 CEDAW.

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refugee status. What amounts to a well-founded fear of persecution will depend on the
particular circumstances of each individual case. It is particularly important to note that the
refugee status should be granted “according to the applicable relevant instruments”, that is
to say, under the conditions expressly provided by these instruments, such as, for instance,
by Article 1 of the 1951 Convention.”
11. It follows that it was nowhere the intention of the drafters to establish a new refugee
status for transgender or intersex persons. Rather, with a view to overcoming “gender
blindness in the establishment of refugee status and of international protection”, 3 the
Istanbul Convention requires parties to introduce a gender-perspective into the examination
of asylum requests in particular by women.
12. To conclude, the Convention calls on state parties to apply a gender-perspective
when complying with their obligation to take measures protecting and supporting victims of
violence against women and domestic violence. The precise scope of measures taken
remains within the margin of appreciation of state parties.

3. No obligation under the Istanbul Convention to provide legal recognition of a third

sex under domestic law

13. The term third sex (sometimes also referred to as third gender or intersex or divers)
refers to a category of people who do not identify as male or female. A transgender is a
person whose gender identity does not correspond to that person’s biological sex assigned at
birth. Transgender people are sometimes called transsexual if they desire medical assistance
to transition from one sex to another.
14. The Convention mentions these terms neither explicitly, nor does it contain any
substantive or procedural obligations regarding the legal status of third sex, transgender or
transsexual persons. It does not require from state parties to attribute a particular legal status
to intersex and transgender persons.
15. This follows both from the general scope and purposes of the Convention and the
specific provisions mentioning ‘gender’ that the parties are merely required to avoid, within
the Convention’s scope of application, any discrimination on the grounds of gender or sexual
identity. According to Article 4 (3) of the Convention, the implementation of the provisions
of the Convention by the parties, in particular measures to protect the rights of victims,
“shall be secured without discrimination on any ground such as sex, gender, race, colour,
language, religion, political or other opinion, national or social origin, association with a
national minority, property, birth, sexual orientation, gender identity, age, state of health,
disability, marital status, migrant or refugee status, or other status.”
16. Within this context only, the explanatory report refers to “transgender or transsexual
persons”, stating that “certain groups of individuals may also experience discrimination on
the basis of their gender identity, which in simple terms means that the gender they identify

3
Explanatory report paragraph 310.

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with is not in conformity with the sex assigned to them at birth. This includes categories of
individuals such as transgender or transsexual persons, cross-dressers, transvestites and
other groups of persons that do not correspond to what society has established as belonging
to ‘male’ or ‘female’ categories (paragraph. 53 in fine; see also paragraphs 87 and 313 of the
explanatory report).

4. No obligation under the Istanbul Convention to allow same-sex marriage

17. As with the recognition of a third sex, no reference is made to the legal recognition of
same-sex marriage, a subject which is not encompassed by the scope of the Convention.
Within this context, it should be noted that in its recent judgment Orlandi and Others v Italy
the ECtHR noted a movement towards legal recognition that has continued to develop
rapidly in Europe and beyond. 4 However, the Court stressed at the same time that a national
legislator remained free under the ECHR not to allow same-sex marriages (“a choice not
condemnable under the Convention”). The Court acknowledged “that there is also a State’s
legitimate interest in ensuring that its legislative prerogatives are respected and therefore
that the choices of democratically elected governments do not go circumvented.”5

Conclusion
28. In conclusion, the Istanbul Convention calls for a gendered understanding of violence
against women and domestic violence as a basis for all measures to protect and support
victims. However, any positive measures in this respect are clearly circumscribed by the
Convention’s scope and purposes. In particular, the Istanbul Convention does not imply the
obligation to legally recognise a third sex or to provide legal recognition of same-sex
marriages.

4
Judgment of 14 December 2017. At the time of the delivery of the judgment (December 2017), 27
countries out of the 47 Council of Europe member states had enacted legislation permitting same-sex
couples to have their relationship recognised (either as a marriage or as a form of civil union or
registered partnership), see § 204 of the judgment.
5
Ibid., § 207.

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