by Antigoni Christakakou, Member of the International Law Research Team
The European Union is based on fundamental values and rights such as equality, freedom and non-discrimination, meaning that everybody should feel safe and live without fear of any kind of violence or discrimination as it is provided in Article 2 of the Lisbon Treaty. (Α. Pliakos, 2018) The first EU strategy for the LGBTIQ community unveiled in 2020 and aims at creating a safe environment which will enable people to freely express their sexual orientation by making European societies more inclusive and tolerant. This research will discuss the scope of this new strategy as provided by the legal framework and the priorities set out by European Commission, the position of the EU on LGBTIQ policies so far, while the second part will focus on national policies and the COVID-19 crisis.
The role of the European Union as a pioneer of LGBTIQ’s rights
Since the 1980s, the European Union has been a fertile ground for the political empowerment of LGBTIQ community in member states. The Rome Treaty (1957) includes a clause on gender equality issues (Article 119, EEC), but the Amsterdam Treaty (1997) (Article 13, EC) marks the true evolution of the LGBTIQ rights since it provides protection against discrimination, on the ground of sexual orientation as well. The Amsterdam and Lisbon Treaties reformed the political situation about gender equality «that was no longer exclusively an issue for women, but part of the general socio-economic and structural struggle against inequalities» (Bain and Masselot 2012). Furthermore the EU Council adopted a Directive (2000/78/EC) in 2000, establishing “a general framework for equal treatment in employment and occupation” that also safeguards against discrimination based on sexual orientation (EU, Directive, 2000/78/EC, 2000).It is also remarkable that since 1984 the European Parliament examined that discrimination in the workplace would be a serious obstacle to the free movement of people and goods, thus «establishing a non-discrimination norm within Parliament» (The Concepts of Equality and Non-Discrimination in Europe: A practical approach).
In addition, the EU has even achieved the harmonization of national legislation to the european standards. One of the most notable examples is the decriminalization of same-sex couples adopted by Northern Ireland, Cyprus and Romania due to pressure exercised on thοse countries. Apart from this, EU member states have adopted initiatives in policy making which are influential internationally; for instance, Denmark became the first country recognizing same-sex couples. (Phillip Ayoub and David Paternotte, 2019)
Evenmore, in order to achieve the implementation of the 2013 “Guidelines to promote and protect the enjoyment of all human rights by LGBTI persons” of the Council, in 2019, the EU promotes a combination of political dialogues and seminars on human rights, by providing financial support and awareness raising through its activities. At international level, its contribution to UN fora is remarkable, along with its expressed support to the UN work in the field through events organized by the Èuropean Commission, the EU’s High Representative in collaboration with local movements, policymakers and media.
Concerning the Charter for the Fundamental Rights of the EU, there is a non discrimination clause (Article 21, EU Charter of the Fundamental Rights, 2009) and the work of the European Agency for Fundamental Rights (FRA) through surveys and reports has helped EU to identify the main challenges on human rights in member states. In particular the statistics provided by FRA for the state of LGBTI rights show that a part of this community does not experience the same rights like other citizens in European societies. Indicatively, according to a survey conducted in 2020 on the challenges faced by the LGBTI community, the interviewees said that they have faced discrimination in a variety of areas such as employment and education. They also mentioned their victimization and inability to express their orientation to their families and at the same time they feel uncomfortable to hold hands with the same-sex partner fearing to feel discriminated. It must be underlined that the survey takes into account the discrimination face by LGBTI persons in different settings like in schools, in work environment, etc. (FRA,A long way to go for LGBTI equality 2020)
Source: EU LGBT survey – European Union lesbian, gay, bisexual and transgender survey – Results at a glance
The very first strategy and national policies
The said strategy is actually a complete and thorough one, proving that European Union is willing to fully recognize and protect the LGBTIQ Community’s rights and to cover social matters, such as health and education, by broadening its scope to all dimensions, such as employability. (Uladzislau Belavusau,2020) The European Commission’s adopted Strategy includes actions and targets based on discrimination, reassuring safety, inclusivity in european societies and promoting LGBTIQ equality at international level. Indicatively, the fight against discrimination focuses also on the legal protection to reassure equality specifically in the sector of employment. In this direction the future adoption of the Directive ‘Employment Equality Directive’ in 2022 will strengthen the role of national equality bodies addressing matters such as the risk of bias and the inherent discrimination in artificial intelligence systems. (Lorna Hutchinson, 2020) Finally, the European Commission gives great emphasis in the incidents of violence against LGBTIQ people internationally and, through its neighbourhood relations and cooperation, tries to support actions using instruments such as ‘the Instrument for Pre-accession Assistance (IPA)’ and the ‘Asylum and Migration Fund’.(European Commission, 2020)
Given that many of the policy areas of this new strategy are associated with national responsibilities and legislation promoting equality and inclusivity, the European Commission plays a major role related to the policy guidance and coordination of national activities by monitoring the implementation of European Directives and in member states’ legislation and actions and promoting good practices among European member states encouraging them to make progress in this area via EU Funds. Funding by the EU is the key for the implementation of this new Strategy aiding member states to the development of national activities in this direction, the advancement of equality in each member state separately and within European Union, and it will emphasize on the building of national action plans based on LGBTIQ equality. The Commission also encourages the adoption of a ‘new Common Provisions Regulation (CPR) setting out rules for the 2021-2027 programming period, containing an ‘enabling condition’ relating to the Charter’. (European Commision, 2020)
The inequalities and new challenges posed by the COVID-19 pandemic which have affected the LGBTIQ community are also addressed in this new strategy. In this direction, the European Commission will give the capability to all member states to use all the possibilities offered by ‘Next Generation EU’ aiding them to the advancement of their equality level through the ‘Technical Support Instrument’. As mentioned by President von der Leyen in her 2020 State of the Union Address ‘The COVID-19 crisis has brought new pressures for the most vulnerable groups, and LGBTIQ people are no exception.’
Taking into account the first EU Strategy, the Greek Prime-Minister announced in March the establishment of a National Commission (2021-2023) in order to draft a National Strategy for LGBTI equality (Naftemporiki, 2021). Members of the Commission apart from the government come from the academic field, civil society, while President of the Commission is the professor and former ECtHR Judge Linos – Aggelos Sicilianos. Lastly the National Commission for Human Rights (NCHR) filed a Memorandum to the newly founded Commission, making some recommendations that the drafters should take into account (NCHR, Memorandum 2021).
In conclusion, the European Union as an international actor who respects the fundamental values of humanity and dignity, puts great emphasis in the elimination of violence, discrimination, and acts of hate against LGBTIQ community, aiding member-states to set guidelines and targets by 2025 to build an inclusive society increasing their level of equality and prosperity. It is important to be mentioned that the combat against inequality is perceived as a shared responsibility, for which all the institutions, agencies, member-states and businesses must elaborate their relations to realize the strategy’s objectives.
Asteris Pliakos (2018). ‘Το Δίκαιο της Ευρωπαϊκής Ένωσης: Θεσμικό και ουσιαστικό δίκαιο’. Edition: Νομική Βιβλιοθήκη.
Phillip Ayoub and David Paternotte (2019). ‘Europe and LGBT Rights: A Conflicted Relationship’.The Oxford Handbook of Global LGBT and Sexual Diversity Politics. Available here.
Manuel Kellerbauer, Marcus Klamert, Jonathan Tomkin (Editors) (2019). ‘The EU Treaties And The Charter Of Fundamental Rights: A Commentary’. Oxford University Press. Available here .
Uladzislau Belavusau (2020) ‘Legislative and Judicial Politics of LGBT Rights in the European Union’. Oxford University Press. Available here.
European Commission (2020) ‘Union of Equality: LGBTIQ Equality Strategy 2020-2025’. European Commission. Available here.
European Union Agency for Fundamental Rights, 2020 ‘A long way to go for LGBTI equality’. Publications Office of the European Union. Available here .
European Commision (2020). ‘Final Report 2015-2019 on the List of actions to advance LGBTI equality’. European Commission. Available here.
Lorna Hutchinson (2020). ‘European Commission presents first-ever LGBTIQ equality strategy’. The Parliament. Available here.