Despite great strides in recent years, the European Commission is currently reluctant to advance the causes of Europe’s LGBTI community out of fear of offending the more conservative Member States, writes Evelyne Paradis
The 2014 edition of the International Day against Homophobia and Transphobia, as for previous years, was marked by several high-level officials, from the UN Secretary General to national ministers in several countries. Every year, the number of public leaders who speak up on IDAHOT increases, along with the level of media coverage of the human rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people. It is indeed undeniable that LGBTI issues now have great visibility across Europe. But does visibility mean that LGBTI people living in the European Union today enjoy full equality?
According to ILGA-Europe’s Rainbow Package, the answer is a clear and resounding no. On one hand, a growing number of countries move positively along the road of legal recognition by granting marriage equality and making it legally possible and accessible for trans people to live in their preferred gender. Yet, half of the EU Member States score below 50% on our Rainbow Index which measures existing legal protection and legal recognition of rights in European countries. And more importantly, the lived experience of LGBTI people remains full of challenges. As proven by the EU’s Fundamental Rights Agency LGBT survey, almost 50% of LGBT people had been discriminated against or harassed within the EU, including in areas where laws protecting against discrimination have existed for over a decade.
On the eve of the next European elections, an essential question is: what is the role of the European Union in bringing about effective protection and recognition for LGBTI people? The EU has played, and continues to play, a hugely important standard-setting role. The EU was the first international organisation to explicitly recognise sexual orientation as grounds of discrimination in law nearly two decades ago when it included it in the Amsterdam Treaty. Since then, the EU also started to explicitly including protection against discrimination based on gender identity and gender expression in EU law; the EU directive on victims’ rights is in fact the first intergovernmental legally-binding instrument in the world to refer to gender expression.
In effect, the EU has thus been a driver for legal change in Europe, bringing about effective legal protection for LGBTI people across the EU. Several EU countries had no legal protection against workplace discrimination based on sexual orientation before the adoption of an EU anti-discrimination law more than a decade ago. The Directive on victims’ rights adopted in 2012 ensures that victims of homophobic and transphobic crimes have adequate and effective support. With the completion of the recast process of EU asylum law in 2013, the EU also now ensures that LGBTI asylum seekers are recognised and cannot be sent back home and asked to pretend not be who they are to avoid persecution.
The EU can also be credited for its leadership role in putting LGBTI issues on the political agenda. With the adoption of the Guidelines on the human rights of LGBTI people in June 2013, the EU put the issues at the centre of its external policy and sent a strong signal of its commitment internationally. The Guidelines are the first ever EU policy document explicitly referring to intersex people, and hence contributing to the recognition of intersex issues in Europe. Beyond laws and policies, the EU is contributing to greater awareness about the situation of LGBTI people in Europe. With the FRA LGBT Survey published in 2013, the largest survey of its kind, the EU significantly contributed to the body of data available about LGBT people’s experience of discrimination and violence.
In short, there is no doubt that the EU, with its tangible financial and legal powers, can be play a crucial role in instigating legal and political change towards equality for LGBTI people in Europe. And much more can be done by the EU, especially in closing the remaining gap in legal protection against discrimination in access to goods and services, education and health care. Unfortunately, the EU institutions have not been spared by the heightened politicisation of LGBTI issues in Europe, amidst the wave of nationalism and ultra-conservatism which is fuelling growing social and political polarisation in many EU countries. It is in this context that the EU Commission did not move forward on proposing an EU LGBT strategy, scared by the possible reaction of some of its more conservative Member States. This despite the fact that as reaffirmed at the 2014 IDAHO Forum hosted by the Maltese and Swedish governments in Malta on 13-14 May, 13 EU governments officially call on the EU to adopt a European strategy.
Knowing that the EU has the competences to significantly advance equality for LGBTI people through legal protection against discrimination as well as the promotion of proactive public policies, the expectations are thus high for the next European Parliament and the next European Commission to deliver change in the coming five years. By 2019, ILGA-Europe needs to report that all EU member states have at least a 75% on our index. Any else will be unacceptable by then.
Evelyne Paradis is Executive Director of ILGA-Europe
Footnote about the Rainbow package: the Rainbow Europe Map reviews the standing of European countries against essential legal benchmarks for LGBTI equality, while the Annual Review of the Human Rights Situation of LGBTI People in Europe 2014 provides an analysis of trends and an overview of key political and social developments country-by-country.