The EU’s Crucial Role in Promoting LGBTI Equality

Belinda Dear
Feb 1, 2016 · 7 min read

We have been hearing for months now the same old debates about whether or not the United Kingdom should remain a member of the European Union. But considering the European Commission has 33 Directorate-Generals each tasked with working on a different area of policy, it is depressingly clear how little we know about what the EU actually does for us, besides the obvious economic, travel and security benefits. One such overlooked area of EU competency is human rights, and I will focus particularly on LGBTI rights. The EU is essential in this area for two principal reasons:

1. It holds national governments to account for human rights violations and brings other Member States up to the status quo in terms of their human rights law.

2. It provides funding to LGBTI organisations in Europe, an entire section of the Fundamental Rights Agency is dedicated to research into the situation of LGBTI people within the EU and throughout the world, and it promotes the improvement of LGBTI human rights globally.

The EU’s European Court of Justice protects LGBTI people from discrimination and violence with a number of treaties and laws. Article 19 of the Treaty on the Functioning of the European Union and Article 21 of the Charter of Fundamental Rights both prohibit discrimination based on sexual orientation. Where a Member State is breaching these articles, the particular individual who is being discriminated against can appeal to the European Court of Justice to hold that country to account; requiring it to change its existing laws and to come into line with those of the European Union. In the area of human rights, this is an extremely valuable protection for EU citizens, and encourages EU Member States to improve the human rights situation in their own countries. The EU Employment Equality Directive was adopted by all Member States in 2000, and transposed into UK national law in 2003. It prohibits discrimination on the grounds of sexual orientation in the areas of employment, vocational training, and membership of employer or employee organisations. It is therefore thanks to the EU that this protection now exists in all Member States, when in most it was previously non-existent. To add to this, the Commission is currently in the process of completing the Equal Treatment Directive, which will prohibit discrimination on the basis of sexual orientation in education, social protection (including social security and healthcare) and access to goods and services.

Adaptation of the laws to include protection for transgender people has been made possible thanks to the European Court of Justice. Its decisions in three main cases, all from the UK, resulted in the Court adding laws to include protection for transgender people, which were subsequently required to be adopted by the Member States. The first, P v S and Cornwall County Council (1994), involved a transgender woman who was dismissed from work while recovering from gender reassignment surgery. The Court ruled it to be contrary to the European Equal Treatment Directive, which led to the Sex Discrimination (Gender Reassignment) Regulations 1999 ; preventing discrimination against transgender people on the grounds of sex in pay and treatment in employment and vocational training. The UK, along with all other Member States, was obliged to implement these new EU regulations. This was then expanded to other pieces of EU legislation by the cases of K.B. v National Health Service Pensions Agency (2004) and Sarah Margaret Richards v Secretary of State for Work and Pensions (2006). The Court confirmed that equal pay and social security benefits are available for transgender people and that equal treatment has to be applied on the basis of the acquired gender, and not the sex assigned at birth.

In the past few years the EU has also made considerable progress in protecting LGBTI victims of crime. The Victims of Crime Directive adopted by Member States in November 2015 ensures full protection, respect and support for victims of crime, regardless of “gender, gender expression, gender identity [and] sexual orientation”. The EU also offers protection for LGBTI asylum seekers, as 78 countries in the world still criminalise people based on their sexual orientation, five of which apply the death penalty as punishment. The EU is therefore rightly regarded as a safe haven for those being persecuted. However, in the past some Member States were interrogating LGBTI asylum seekers about their sexual practices and demanding “tests” to prove their sexuality, which was a violation of their right to privacy and human dignity. In December 2014 the European Court of Justice ruled against such practices, which was particularly poignant for the UK after the 2014 scandal about the Home Office’s treatment of LGBTI asylum seekers.

The EU is a global actor in promoting and protecting LGBTI rights. In light of this, as we build up to the referendum we must consider the following moral issue: can we in good conscience cease to contribute to this essential organisation that pushes for equality on a global scale? All EU bodies and Member States dealing with non-EU countries denounce discrimination, support human rights defenders, and actively work towards the decriminalisation of same-sex relations. The European Union Agency for Fundamental Rights (FRA) has an entire department dedicated to LGBTI. Not only does the FRA carry out crucial research into the situation of LGBTI people within the EU, but it also works closely with ILGA (International Lesbian, Gay, Bisexual, Trans and Intersex Association), an international NGO which gathers data and promotes equality in all parts of the world. Some of the FRA’s publications include the information campaign “For diversity. Against discrimination”, and the advisory papers: “Homophobia and discrimination on grounds of sexual orientation in the EU Member States: Part I — legal analysis” (2008) and “Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity” (2010), designed to inform the European Parliament on areas that need particular attention.

A proportion of the EU budget is dedicated to providing funding for projects which promote equality and combat homophobia, transphobia, and other forms of intolerance. The “Rights, Equality and Citizenship Programme 2014–2020” has a budget of €439m for a large number of projects. This is provided under the Directorate-General for Justice, which also offers grants to support transnational projects to prevent and combat racism, xenophobia, homophobia and other forms of intolerance. It is interesting to note that Stonewall recognises that the most effective action for promoting LGBTI rights internationally is in partnership with the EU. In a 2013 paper Stonewall pointed out the value of the European Instrument for Democracy and Human Rights, which offers significant funding opportunities for civil society organisations advocating for LGBTI equality. In relation to international funding, Stonewall states that “there is less likelihood of governments criticising LGB programmes funded by the EU as being an imposition of western values, compared to direct funding from former colonial powers like the UK”[1]. I should hope we would choose the path that allows us to effectively tackle the horrific discrimination that is still rife in some countries outside of the EU, rather than to take the back seat.

Some people ask “what has the EU ever done for us?” Well, just look at its history, read about its action on human rights, which is just one area of EU expertise (over and above the good work carried out in this area by the Council of Europe). Many of the laws I just mentioned protect people from discrimination not only on the grounds of sexual orientation or gender identity, but also with regards to race, age, gender, religion, and disability. The government is planning to replace the Human Rights Act with its own “British Bill of Rights” (the content of which we have no information whatsoever) and “break the formal link between British courts and the European Court of Human Rights” of the Council of Europe. In light of this, we must ask ourselves: what would a Conservative-run Britain become once no longer part of the European Union? It appears that we are entering a period of history in which we will need the European Court of Justice more than ever.

This article aims to show just how much the EU has done for the LGBTI community. Of course, there is still plenty of work to be done, but we cannot overlook the fact that the EU has widened the shifting of institutional and social attitudes in regard to LGBTI people across all Member States, and is attempting to extend these progressive and liberal values around the globe. As one of the most tolerant and progressive countries in the EU, should we turn our backs, or choose to be leaders in this great collaboration, pushing for global equality together?

[1] Disclaimer: Stonewall has stated that it will remain neutral in the public EU referendum debate