LGBT rights in the European Union
LGBT rights in the European Union are protected under the European Union's (EU) treaties and law. Same-sex sexual activity is legal in all EU states and discrimination in employment has been banned since 2000. However EU states have different laws when it comes to any greater protection, same-sex civil union, same-sex marriage and adoption by same-sex couples.
Treaty protections
The Treaty on the Functioning of the European Union makes in Articles 10 and 19 provisions for combating discrimination on the grounds of sexual orientation. These provisions were enacted by the Treaty of Amsterdam in 1999. [1] [2]
Furthermore, Article 21 of the Charter of Fundamental Rights asserts that "any discrimination based on any ground such as [...] sexual orientation shall be prohibited." The Charter was agreed in 2000 and became legally binding in 2009. [1] [2] [3]
Legislative protection
Following the inclusion of the Treaty of Amsterdam's abovementioned provisions, the directive establishing a general framework for equal treatment in employment and occupation was enacted in 2000. This framework directive compelled all EU states to adopt, within three years, anti-discrimination legislation in employment. That legislation had to include provisions to protect people from discrimination on the basis of sexual orientation. [2]
In practice, this protects EU citizens from being refused a job, or from being fired, because of their sexual orientation. It also protects them from being harassed by a colleague due to their sexual orientation. It does not cover being refused medical services or treatment, refusal of being given a double room in a hotel, protection from bullying in a school and refusal of social security schemes (e.g. survivors' pensions and financial assistance to carers). Protection under EU law in these circumstances is however granted on the grounds of race or gender. [4]
Proposed directive
A proposed European anti-discrimination law would outlaw discrimination in the areas of social protection, social advantages, education and access to supply of goods, on the basis of religious belief, disability, age, and sexual orientation. [5] However the directive has been stalled in the Council, despite strong support from the European Parliament. [6]
Transgender rights
EU law currently takes a different approach to transgender issues. Despite the European Parliament adopting a resolution on transgender' rights as early as 1989, transgender identity is not incorporated into any EU funding and was not mentioned in the law establishing the European Institute for Gender Equality (EIGE) as sexual orientation was. However, the case law of the European Court of Justice provides some protection by interpreting discrimination on the basis of 'sex' to also refer to people who have had 'gender reassignment'. Thus all EU sex discrimination law applies to transgender people. [2] In 2002, the 1976 equal treatment directive was revised to include discrimination based on gender identity, to reflect case law on the directive. [7]
Intersex rights
In February 2019, the European Parliament adopted a resolution on the rights of intersex people. The resolution called European Union member states to legislate better policies that protected intersex individuals, especially from unnecessary surgery and discrimination. It stated that the parliament "strongly condemns sex-normalizing treatments and surgery; welcomes laws that prohibit such surgery, as in Malta and Portugal, and encourages other member states to adopt similar legislation as soon as possible." The resolution also urged legal gender recognition based on self-determination. It also confirms that intersex people are "exposed to multiple instances of violence and discrimination in the European Union" and calls on the European Commission and the Members States to propose legislation to address these issues. It also includes the need of adequate counselling and support for intersex people and their families, measures to end the stigma and pathologisation intersex people face and increased funding for intersex-led civil society organisations. [8] [9] [10]
Other actions
Between 2001 and 2006, a Community Action Programme to Combat Discrimination involved the expenditure of €100 million to fight discrimination in a number of areas, including sexual orientation. [7]
In 2009 the European Commission has acted to tone down a law in Lithuania that included homophobic language and also aimed to support the gay pride parade in the country and others under threat of banning. [2]
Foreign relations
In June 2010, the Council of the European Union adopted a non-binding toolkit to promote LGBT people's human rights. [11] [12]
In June 2013, the Council upgraded it to binding LGBTI Guidelines instructing EU diplomats around the world to defend the human rights of LGBTI people. [13] [14]
Same-sex unions
Same-sex unions in the European Union Marriage Civil unions equivalent to marriage Civil unions with limited rights Registered cohabitation Residency rights for foreign spouses
Same-sex marriage has been legalised in Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Luxembourg, Malta, the Netherlands, Portugal, Spain, and Sweden. Same-sex civil unions have been legalised in Austria, Belgium, Croatia, Cyprus, Czechia, Estonia, France, Greece, Hungary, Italy, Luxembourg, the Netherlands, and Slovenia. In Denmark, Sweden, and Finland, civil partnerships were legal between 1989 and 2012, and between 1995 and 2009, and between 2002 and 2017 respectively. In Germany, registered life partnerships were legal between 2001 and 2017. In Ireland civil partnerships were legal between 2011 and 2015. However existing civil unions/registered life partnerships are still recognised in all of these countries.
Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland and Slovakia have constitutionally defined marriage as being between a man and a woman. In December 2020, Hungary also explicitly legally banned adoption for same-sex couples within its constitution. [15] [16]
European Union law (the Citizens’ Rights Directive 2004/38/EC) requires those member states that legalised same-sex partnerships to recognise each other's partnerships for the purpose of freedom of movement. [17] The European Parliament has however approved a report calling for mutual recognition. [18] [19]
According to European Court of Justice case law based on the Employment Equality Framework Directive, employees in a civil partnership with a same-sex partner must be granted the same benefits as those granted to their colleagues upon their marriage, where marriage is not possible for same-sex couples. The Court established this principle in 2008 in the case of Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen with regards to a German registered life partnership. In December 2013, the Court confirmed this in the case of Frédéric Hay v. Crédit agricole mutuel (C-267/12) with regards to a French civil solidarity pact, which is significantly inferior to marriage than a German registered life partnership. [20] [21]
Also, according to the European Court of Justice in the case of Coman and Others , by judgement of 5 June 2018, a "spouse" (or partner or any other family member) in the Free Movement Directive (2004/38/EC) includes a (foreign) same-sex spouse; member states are required to confer the right of residence on the (foreign) same-sex spouse of a citizen of the European Union. [22] [23]
Conversion therapy
In March 2018, a majority of representatives in the European Parliament passed a resolution in a 435–109 vote condemning conversion therapy and urging European Union member states to ban the practice. [24] [25] [26] A report released by the European Parliament Intergroup on LGBT Rights after the measure was passed stated that "Currently, only Malta and some regions in Spain have explicitly banned LGBTI conversion therapies." [27] In 2020, conversion therapy for minors was also banned in Germany by law. [28]