Is the EU doing enough to protect LGBTI fundamental rights ?

At a time when LGBTI people’s rights and support for equality are more advanced than ever, a third of the territory of an EU Member State (MS) has been established as a “LGBTI-free zone”. With its weak legal provisions regarding sexual and gender minorities, the European Union is not able to close the gap between its Member States with regard to the level of protection against discrimination. But what does this mean for fundamental rights?

Acceptance, far-right parties and Poland’s “LGBTI-free zones”

Lesbian, gay, bisexual, transgender and intersex (LGBTI) people’s rights have been extended significantly in Europe over the past few years. There is more visibility and acceptance of sexual and gender minorities and some countries have recently allowed same-sex marriage. Positive media coverage and representation has also increased. Support for LGBTI equality at the European Union (EU) level reached in 2019 an all-time high of 76%. However, there are huge differences between different Member States going from 97% and 98% of acceptance in Sweden and the Netherlands to just 31% in Slovakia and 38% in Romania.
On the other hand, some conservatives believe LGBTI people to be a threat to traditional family values and gender roles. The recent rise of far-right anti-LGBTI parties across Europe, which have consistently blocked proposals protecting LGBTI people, opposed lectures about LGBTI rights at schools and called to boycott LGBTI Pride demonstrations has incited hatred and social polarisation over the issue.
Moreover, hate speech and hate-motivated crimes, especially online and on social media, have increased. According to a survey conducted to LGBTI people by the EU Agency for Fundamental Rights in 2012, almost half of the respondents (47%) were discriminated against or harassed on the grounds of sexual orientation or gender identity in the previous year, whereas one in four (25%) were attacked or threatened with violence in the previous five years. These figures rise when it comes to trans people, respondents with the lowest incomes or women.
In regards to state-sponsored LGBTIphobia, a third of Poland (an area bigger than the size of Hungary) has recently been declared “free from LGBTI ideology”. It is better shown by the Atlas of Hate, a project launched by Polish activists denouncing the regions that have passed anti-LGBTI resolutions or are about to do so. This follows from hate campaigns by conservative newspapers, aggressive anti-LGBTI lobbying and violent attacks to some Pride marches. These actions are clearly aimed at spreading fear and hate to obtain political gains at the expense of sexual and gender minorities’ fundamental rights. But how can it be possible for an EU Member State to pass anti-LGBTI legislation without consequences?

A “Union that protects”?

There is a contradiction regarding the protection of the LGBTI community by the European Union. While it is the only region in the world imposing binding legislation based on sexual orientation, these norms are mostly indirect and inefficiently implemented. They are not uniformly applied in all Member States since most of them cover policy areas where the EU has no competences. Therefore, there is a huge gap in the level of protection against discrimination of LGBTI persons, on recognition of same-sex relationships and same-sex marriage, as well as adoption by same-sex couples within the EU.
The area in which LGBTI people enjoy higher protection at the EU level is employment, where sexual orientation is recognised by EU law as a ground for discrimination by the Employment Framework Directive and the Equal Treatment Directive. This is also covered by the EU Charter of Fundamental Rights (article 21) and the Treaty on the Functioning of the EU (article 19). However, there is no explicit mention of gender identity or gender expression, which makes the protection of trans people dependent on the interpretation of the case-law by the Court of Justice of the EU. Still, one in five LGBTI and around one in three trans persons have been discriminated against when looking for a job or at work, according to the survey conducted by the Agency for Fundamental Rights.
These weak provisions make LGBTI people highly vulnerable, since there are no measures regarding social protection, healthcare or access to goods and services. They are crucial and necessary since LGBTI persons, and especially transgender people, are at greater risk of poverty and refusal of medical services and treatment.
There is also no recognition of family or marital status at the EU level, which is competence of the Member States except in cross-border cases. This means that in six MSs same-sex relationships are still not legally recognised. Moreover, legal procedures for gender recognition for trans people are still largely inaccessible and not guaranteed or recognised in all MSs.
The European Commission introduced in 2008 the proposal for an Equal Treatment Directive, which would protect LGBTI persons from discrimination in almost every area except family and marital status but has not yet been adopted. Furthermore, the already existing gender equality action could be enhanced by taking into account grounds on gender identity.
Following the recommendations of advocacy groups and experts in the field such as ILGA-Europe (the International Lesbian, Gay, Bisexual, Trans and Intersex Association) or the European Parliament’s LGBTI Intergroup is essential. A well-implemented legal framework with policy instruments and action plans as well as awareness campaigns is crucial to fight discrimination, harassment, and violence against LGBTI people. The lack – or ineffectiveness – of equality measures has an extremely negative impact on their daily lives as it makes them unable to enjoy the right to respect for private life and violates their fundamental rights.

Are fundamental rights secured?

The Polish resolutions establishing “LGBTI-free zones” have been condemned at the EU level by the European Commissioner for Equality Helena Dalli and the European Parliament, which issued a resolution asking for them to be revoked. They also attracted reactions from other Member States, for instance the Spanish Ministry of Equality and the municipal council of the French commune Saint-Jean-de-Braye, which voted unanimously to suspend their official ties with one of the Polish towns that passed the resolution.
Nevertheless, these responses are far from sufficient. The fact that an EU Member State in the 2020s is able to declare “LGBTI-free zones”, not to mention that there is an important percentage of people across the EU who believe that LGBTI people should not have equal rights, means that something is not working.
Having – or aiming to have – an economic and political unity is not enough if fundamental rights are not respected by some Member States and the EU cannot do anything to correct this situation. Europeanisation has been proven to be an opportunity to push for the LGBTI community’s rights in order to gain social and legal visibility, but this opportunity is being wasted. There is an urgent need of LGBTI equality mainstreaming in all policy areas of the EU so that gender and sexual minorities can freely exercise their fundamental rights and the gap between the MSs can be closed.
The European Commission’s political guidelines for 2019-2024 presented by President Ursula von der Leyen state that “Europe is the aspiration of living in a society where you can be who you are and love who you want”. It still remains to be seen.
 
Lucía Zurro Sánchez-Colomer is a second-year Master student at the Institute for European Studies of the ULB.