In 2024, the European Union Agency for Fundamental Rights (FRA) released an alarming report documenting hate-filled attacks on members of the LGBTQ+ community.
The survey found a significant increase in the number of LGBTQ+ individuals who reported experiencing hate-motivated harassment, from 37% in 2019 to 55% in 2023. The rate was even higher for intersex respondents (74% in 2023 compared with 42% in 2019) and for trans respondents (69% in 2023 compared with 47% in 2019).
And yet these substantial increases in discrimination, harassment, and hostility against the LGBTQ+ community are happening despite a decade of expansion of hate speech laws across the European continent.
In the Council of Europe, 35 of its 46 member states explicitly criminalize hate speech on the grounds of sexual orientation, 18 on the grounds of gender identity, and 6 on the grounds of gender expression and sex characteristics. Within the European Union, a 2021 study commissioned by the European Commission found that all 27 Member States criminalize public incitement to hatred and/or violence, with 20 explicitly covering sexual orientation and 17 regarding sex or gender.
On a Council of Europe level, as well as the European Court of Human Rights’ rich body of hate speech cases — which has arguably diluted the freedom of expression — there is the Additional Protocol to the Convention on Cybercrime, concerning the criminalization of acts of a racist and xenophobic nature committed through computer systems. On an EU level, there is the 2008 Framework Decision on Racism and Xenophobia, the Digital Services Act and the revised Code of Conduct on countering illegal hate speech online +.
Even though there has been an ever-expanding, multi-jurisdictional effort to combat hate speech across Europe, hate-motivated attacks on minority populations like the LGBTQ+ community continue to rise. And yet, policymakers in Europe appear to think the problem is that efforts to criminalize hate speech have not gone far enough.
In September 2026, the Council of Europe released a new report, Combating Hate Speech Based on Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC) in Europe, which examines the growing hostility toward this community and proposes a range of measures to address it.
While some of the report’s proposals are welcome, others raise serious concerns about the increasing reliance on criminal law to regulate expression and omit a proper evaluation of the well-documented unintended consequences of such efforts.
The Council of Europe’s Report: The Good and The Concerning
The Council of Europe’s report contains several constructive proposals. Its recommendations on education, including whole-school approaches to preventing bullying and promoting digital and media literacy, deserve particular attention. So do its calls for better victim support, more accessible reporting mechanisms, specialist training for police and prosecutors, and sustained support for civil society organizations. Such measures can address the practical barriers that prevent members of the LGBTQ+ community from seeking protection and participating fully in public life.
Criminalization may also have a legitimate role where expression meets the high threshold required under international human rights law. Although the Rabat Plan of Action was developed specifically in relation to incitement to national, racial or religious hatred, its six-part threshold test provides a valuable framework that can also be applied to assessing incitement based on sexual orientation, gender identity, or sex characteristics. The test considers the context, the speaker, intent, the content and form of expression, its extent of dissemination, and the likelihood, including imminence, of harm.
Criminal law, however, is no panacea. Its application must remain necessary and proportionate, with criminal sanctions reserved for the most serious cases, and must be accompanied by broader educational, institutional and social measures addressing the underlying conditions that allow hostility and discrimination to persist.
More troubling are the report’s recommendations concerning criminalization and prosecution. It encourages states to strengthen criminal hate speech provisions and reconsider evidentiary requirements for establishing discriminatory intent.
In particular, the report proposes allowing courts to draw on objective indicators of hatred, including the language used, the nature of the conduct, and the circumstances surrounding an alleged offense. For example, racist remarks made during an assault may help establish discriminatory motivation, while the timing or location of an incident may provide relevant contextual evidence. Such indicators can help courts determine intent but should not automatically be treated as proof.
The report also highlights Norway’s approach, under which Section 185 of the Penal Code criminalizes certain discriminatory or hateful statements made intentionally or with gross negligence. Under Norwegian law, criminal liability does not always require proof that the speaker deliberately intended to express hatred.
These approaches raise important questions about criminal responsibility and freedom of expression. Using contextual evidence to establish intent is a familiar and legitimate feature of criminal proceedings. Allowing such evidence to substitute for proof of the required mental element, or lowering that requirement, raises different concerns about legal certainty and the risk of criminalizing expression without sufficient justification.
Similarly, a victim’s perception of hostility may justify recording and investigating an incident as potentially hate-motivated, but cannot, by itself, establish criminal guilt. These safeguards are particularly important where the expression concerns contested political, religious or social issues, and where the distinction between offensive speech and criminal conduct must remain clear.
The report itself provides a compelling reason to question the assumption that more criminalization will produce greater protection. Acknowledging that most Council of Europe member states have already criminalized hate speech on at least some SOGIESC grounds, it observes that “formal legal protection does not necessarily translate to safety in lived experience.” This is one of its most important findings. It should encourage a closer examination of the effectiveness of existing laws, the reasons people remain reluctant to report incidents, and the institutional failures that prevent legal protections from delivering meaningful results.
The Limits and Risk of Criminalizing Speech
The Council of Europe report lacks a serious evaluation of historical, real-world application and unintended consequences of laws that criminalize expression on the basis of hate.
Legislation ostensibly designed to combat hatred has sometimes been deployed against the very minority groups such laws are intended to protect. Recent examples include Black liberation campaigners prosecuted under British racial hatred laws and the arrest of LGBTQ+ activists at Glasgow Pride for displaying a slogan intended to express solidarity and resistance to fascism.
Such examples expose a fundamental vulnerability of broadly framed speech restrictions: their enforcement depends on authorities whose understanding of offensive or hateful expression may reflect prevailing social attitudes and power structures. Freedom of expression has been indispensable to minority emancipation precisely because it allows marginalized communities to contest those structures, challenge dominant beliefs, and demand political and social change.
Hate speech can produce serious, real-world harms that merit effective responses. Research has documented the psychological and social harms of hate speech, including its capacity to undermine individuals’ sense of security, reinforce discrimination and, in certain contexts, contribute to violence.
But showing a link between hateful expression and harm does not justify broader criminal prohibitions as an effective way to prevent these harms. As such, the Council of Europe’s report fails to assess seriously how its proposals will meaningfully prevent harm and does not explain why existing legal frameworks have failed to deliver the protection they promise.
Despite decades of hate speech legislation, homophobia, transphobia, biphobia and other forms of anti-LGBTQ+ hostility remain pervasive across Europe. As such, the effectiveness of criminal prohibitions cannot simply be presumed. Moreover, their application may also discourage legitimate expression, suppress counterspeech, and expose minority communities to selective enforcement.
Beyond Criminalization: Building the Conditions for Equality
The Council of Europe’s recommendations on education, victim support, civil society participation and counterspeech offer a valuable foundation for addressing anti-LGBTQ+ hostility. These measures deserve greater attention, especially given the limitations and risks of expanding criminal prohibitions. Effective protection requires policies that confront prejudice, strengthen institutions and promote equality in everyday life.
Counterspeech also plays an important role. Through factual correction, appeals to empathy, humor, personal testimony and collective campaigns, it can challenge discriminatory narratives, contest stereotypes and encourage reflection. Empirical research provides some grounds for optimism.
A large-scale field experiment found that empathy-based counterspeech reduced subsequent xenophobic hate speech among users who had previously posted hostile content. However, its effectiveness depends on the intervention’s nature, context, and intended audience. Findings concerning xenophobic expression cannot automatically be extended to anti-LGBTQ+ hostility, making further research essential.
Counterspeech also has limitations. Confronting hateful expression can impose significant emotional and practical burdens on those targeted, potentially exposing them to further harassment. LGBTQ+ individuals should not be expected to bear responsibility for challenging the prejudice directed against them.
Counterspeech alone cannot secure substantive equality. It should be deployed as part of a broader framework of effective anti-discrimination policies, institutional accountability and accessible remedies that address inequalities in education, employment, healthcare and public services.
Education is particularly important. Inclusive school environments, anti-bullying policies, teacher training and human rights education can challenge prejudice and foster respect for diversity. Research has found an association between supportive school policies and improved experiences of safety among LGBTQ+ students, reinforcing the importance of educational interventions. Digital and media literacy, accessible reporting mechanisms, and meaningful victim support can further strengthen protection and help translate formal rights into lived realities.
What Should The Council of Europe Do?
The Council of Europe should therefore prioritize developing and evaluating these interconnected measures, assessing their effectiveness in reducing hostility and advancing equality. Success must be measured by whether LGBTQ+ people are safer and better able to exercise their rights, rather than by the breadth of criminal prohibitions.
Throughout this process, freedom of expression must remain firmly protected. It is fundamental in its own right and has been indispensable to the LGBTQ+ community’s struggle for recognition, equality and social change. Weakening its protection risks undermining one of the very freedoms through which that community has challenged discrimination and secured its rights.
Natalie Alkiviadou is a Senior Research Fellow at The Future of Free Speech. Her research interests lie in the freedom of expression, the far-right, hate speech, hate crime, and non-discrimination.