Insight: “Fundamental Rights Agency identifies problems in legislative protection of LGBTI people in Europe” by Anjum Shabbir
Before the International Day Against Homophobia, Transphobia and Biphobia was celebrated this Sunday on 17 May 2020, the Fundamental Rights Agency published a report detailing the results of the largest ever survey of its kind completed by 140,000 LGBTI respondents, which reveals that there is still a high level of fear, violence and discrimination among LGBTI people in Europe. The report finds that little progress has occurred over the last seven years since its survey in 2012. On this occasion the survey was extended to cover the UK, North Macedonia, Serbia, and for the first time, 15 to 17 year olds.
Its findings were presented to the European Parliament on 14 May 2020, and it complements the European Commission’s annual report on the impact of its ‘List of Actions’ to advance LGBTI Equality, presented at the occasion of the High Level Group on Non-Discrimination, Equality and Diversity on 18 May 2020.
The report details why there is a need to protect lesbian, gay, bisexual, trans and intersex people (this is the first time such data is collected for the latter) in the contexts of school, jobseeking, work, access to services including housing, as well as reporting of harassment, hate crime, physical or sexual attacks, and generally in terms of ‘openness’ – namely ‘how freely they can walk down the street’. It notes in particular a high level of harassment and attacks against trans and intersex people, and a worrying trend of attacks against younger LGBTI people compared to older LGBTI people.
FRA’s assessment covers a range of existing EU law measures, including the overarching rights in Article 2 TEU which sets out respect for equality, and non-discrimination as values upon which the EU is founded.
It highlights where there is weak implementation of the existing EU law in place, and where there is a need for new or more protective legislative measures – pointing out that different levels of protection need to be provided to categories of persons who experience (different types of) discrimination based on (i) sexual orientation, (ii) sex, (iii) gender identity, (iv) gender expression, and (v) sexual characteristics.
It noted the following:
Gender identity and Sex Characteristics
- Limits to the scope of Article 21 of the Charter, which does not extend protection to gender identity and sex characteristics in particular to protect transgender and intersex people (it includes the right not to be discriminated against ‘on grounds of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’);
- Limits to the scope of Article 19 TFEU (which covers ‘discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’) but not gender identity or sex characteristics in particular to protect transgender and intersex people;
- The general lack of protective law for gender identity and sexual characteristics as protected characteristics in the EU anti-discrimination legal framework – which FRA explicitly calls for;
- Limits to protection against discrimination on grounds of sex, which under the Court of Justice’s case law is limited only to people undergoing, or intending to undergo gender reassignment;
- Weak implementation of EU law to protect intersex people who undergo surgery without being asked for their consent, or without their parents having been asked for consent under Article 3 of the Charter (right to, in the fields of medicine and biology, respect for the free and informed consent of the person concerned);
- Limits to the scope of the Framework Directive on Racism and Xenophobia 2008/913/JHA, which does not include sex, sexual orientation, gender identity or gender expression as protected characteristics;
- Limits to the scope of the Equality at Work Directive 2000/78, which does not currently cover, but could be extended to cover, social protections, social advantages, education, and access to services including housing.
- The lack of a multiple-grounds or intersectional protections for individuals who may be subject to a complex form of discrimination for more than one characteristics – also not addressed by the Court of Justice in its case law;
- Weak implementation of the law under the Victims’ Directive 2012/29, in particular Article 22, which should enable the investigation and prosecution of hate crimes and physical or sexual attacks further to an individual assessment, carried out by trained officials, raised by the FRA due to the identified reluctance and low levels of reporting;
- Weak implementation of EU law protections under Articles 1 (respect for and protection of human dignity), 2 (right to life) and 3 (right to integrity of the person) of the Charter to protect LGBTI persons from violence and crime motivated by perceived sexual orientation or gender identity;
- The need for greater implementation of EU law under Article 3(3) TEU (the Union shall protect the rights of the child) and Article 24 of the Charter (rights of the child);
- Weak or no implementation of EU law as a result of identifying that LGBTI people felt they were unable to be ‘open’, in respect of which the FRA recalled Article 1 (respect for and protection of human dignity), 6 (right to liberty and security) and 11 (freedom of expression) of the Charter;
- Limit to the personal scope of Implementing Equality Directive 2006/54 and Goods and Services Directive 2004/113, which only partially covers trans people.
The report acknowledges that the Court of Justice has extended discrimination protection rights under Directive 2000/78 on grounds of sexual orientation, for the first time in Maruko (C-267/06) (and eight years after the Directive came into force), concerning the refusal to grant a widower’s pension to a spouse (in Germany, ‘spouse’ not being recognised for same-sex married couples). This was despite there being no EU competence in matters of family or marital status. (See also Römer, C-147/08; Asociaţia Accept, C-81/12 and Hay, C-267/12) It also referred to that Court’s more recent extension of discrimination protection in respect of the right to freedom of movement to LGBTI EU citizens and their families, relying on Article 7 of the Charter (right to private life), again despite the EU not having competence to decide on matters of family or marital status, in the case Coman (C-673/16).
Read this assessment of the case by Daniel Sarmiento here, which notes the ‘rich recollection of the argumentative tricks and somersaults that the Court can play in order to reach a specific outcome’. Considering that, one could hope that the Court fills the gaps recognised by the FRA to provide protection beyond the grounds of sexual orientation to the persons and characteristics in the situations referred to above.
Elsewhere, the Council of Europe’s Congress on Human Rights has also published a ‘Manual on Human Rights for Local and Regional Elected Officials’ with a chapter on good practices for the inclusion and defence of LGBTI rights, suggesting codes of conduct, training of officials, and consultation with the LGBTI community in developing local policies.
For a glimpse at the national level, Germany has recently passed a law banning the controversial use of ‘conversion therapy’, which claims to change a person’s sexual orientation, on minors. Hungary, on the other hand, has just approved new legislation that bans the legal recognition of transgender and intersex people (for more detail on country-specific legislation in this field, read this report by ILGA).
Read the FRA’s report here.
Anjum Shabbir is an Assistant Editor at EU Law Live