Happy LGBTQI+ Pride from the EM Ireland Team!
Over the months of June, July, and August, the rainbow flag will colour streets, windows and doorways across Ireland to celebrate Pride. Pride parades will take place in a variety of locations across the country, including Limerick, Carlow, Kerry, Cork, and Galway. This year, Dublin Pride celebrated its 50th anniversary. The roots of LGBTIQ+ activism in Ireland grew from the historic 1969 Stonewall Riots in the US, which are credited with inspiring the emergence of global LGBTQI+ liberation movements. This Just the Facts unpacks how LGBTQI+ people are protected under EU legislation and policy initiatives and highlights the struggles still faced by the LGBTQI+ community across the EU.
How Does EU Law Protect LGBTQI+ Rights?
The prohibition of discrimination, the principle of equality and the protection of human rights are important elements of EU primary law. However, it was only recently that sexual orientation was included in EU law as a ground of discrimination.
Up until the 1999 Treaty of Amsterdam, the relevant EU Treaty provisions addressed discrimination on the grounds of nationality and sex only. At the same time, before the 1999 Treaty of Amsterdam, the application of the general principle of equality was also not uniform in the case law of the Court of Justice of the EU (CJEU). This meant that the question of whether discrimination based on sexual orientation was prohibited under this principle remained contentious.
Article 13 of the Treaty establishing the European Community (TEC) – introduced by the Amsterdam Treaty (now Article 19 TFEU) – acted as a breakthrough in legislating in this area. Article 13 of the TEC empowered the EU to adopt measures to deal with discrimination on other grounds, including sexual orientation.
Today, the principle of equality and the prohibition of discrimination on the basis of sexual orientation have an extensive legal basis in the EU Treaties (e.g. Article 10 of the Treaty on the Functioning of the European Union (TFEU), and Articles 2 and 3 of the Treaty on European Union (TEU)).
These Treaty provisions are also complemented by the Charter of Fundamental Rights of the EU (Article 21(1)), which has the same legal value as the Treaties, as stated under the Lisbon Treaty. The Charter was the first international human rights charter to explicitly prohibit discrimination on the grounds of sexual orientation.
EU Directives and LGBTQI+ Rights
In the year 2000, two landmark anti-discrimination directives were adopted on the basis of Article 13 of the TEC: the Race Equality Directive, and the Employment Equality Directive. However, the scope of the application of these two directives varies, with the Race Equality Directive covering a much wider scope in anti-discrimination legislation, while the Employment Equality Directive is restricted to employment. The Victims’ Rights Directive, adopted in 2012, also explicitly prohibits discrimination based on sexual orientation, gender identity and gender expression. There are three other important EU directives that have implications for LGBTQI+ based on their interpretation. They include the Free Movement Directive, the Family Reunification Directive and the Qualification Directive.
Limitations of EU Law
However, it is important to note that the scope of the EU provisions dealing with discrimination on the grounds of sexual orientation is limited. They do not cover social protection, health care, education or access to goods and services, leaving LGBTQI+ people particularly vulnerable in these areas. Moreover, EU competence does not cover the recognition of marital or family status. On this issue, national regulations vary significantly, with some Member States offering same-sex couples the right to marry, some allowing alternative forms of registration, and others not providing any legal status for same-sex couples.
It is important to note that EU law does not provide for a specific prohibition of discrimination on the grounds of transgenderism. Some Member States see it as a form of sex discrimination. Such an approach is corroborated by the CJEU’s extensive case law, which has adopted a definition of sex discrimination covering people who have undergone sex reassignment. In other Member States, this type of discrimination is treated as discrimination on the basis of sexual orientation. A third group of Member States considers it as neither one nor the other. Transgender people in these Member States can only rely on the general principle of equality and cannot benefit from the more far-reaching protection of the anti-discrimination directives.
Regarding the discrimination of people from the Intersex community, it remains unclear whether intersex people are implicitly covered by the existing EU anti-discrimination legal framework. There is, as of yet, no CJEU case law offering protection against discrimination based on variations in sex characteristics. The notion of ‘sex characteristics’ as a protected ground remains underdeveloped in national law, with few Member States including specific references to gender identity, expression and sex characteristics in their equality legislation.
LGBTQI+ Equality Strategy 2020-2025
Of course, legislative protection while an important starting point, on its own is insufficient to provide protection for EU citizens, and thus there are also a number of policy initiatives in place in the EU to tackle LGBTQI+ discrimination. One such programme is the LGBTQI+ Equality Strategy 2020-2025 which was announced by the European Commission in November 2020 under the first-ever EU Commissioner for Equality, Helena Dalli.
This Strategy sets out a series of legislative and non-legislative measures to promote non-discrimination and equal opportunities. It aims to integrate LGBTQI+ rights into all EU policies, with planned actions aiming to combat anti-LGBTQI+ hate speech and crime; ensure free movement for same-sex couples and their families across the EU; and support Member States in implementing workplace inclusion, safe education, and healthcare. The strategy also focuses on ending harmful practices like forced medicalisation and “conversion therapy”.
A progress report, published in April 2023, highlighted some of the Strategy’s key achievements, including the proposals on strengthening equality bodies and parenthood, the proposed extension of EU crimes to cover hate speech and hate crime, and the fostering of good practices on legal gender recognition.
Progress and Challenges in EU Member States
The last four decades have seen LGBTQI+ activists across Europe push for a broader expansion of the legal recognition of their human rights, and in many areas, there have been positive developments in the fight for equality. The experiences of LGBTQI+ people across the EU varies significantly from country to country and every group faces different challenges. Ireland ranks 14th out of 48 countries on ILGA Europe’s 2024 Rainbow Map; scoring high in areas such as civil society space and legal gender recognition. Malta is the EU Member State with the highest ranking on the Rainbow Map, scoring 100% in both the Family and Hate Crime and Hate Speech categories.
Poland is the EU country with the lowest scoring and is at 41st place, while Romania, Bulgaria, Latvia, Italy, Lithuania and Czechia are also among the EU countries that rank the lowest. Poland’s position is driven by a number of reasons, including discriminatory legislation which prohibits for example inclusive LGBTIQ+ education in schools and the fact that Poland has yet to adopt legal measures to recognise and protect same-sex couples. Poland also does not currently have hate crime laws that explicitly cover all bias-motivated crimes based on sexual orientation, gender identity, gender expression and sex characteristics.
In April 2024, the European Union Agency for Fundamental Rights (FRA) published a report which revealed signs of slow but gradual progress in the area of LGBTQI+ rights. While discrimination against LGBTQI+ people remains high, it is gradually declining. The proportion of respondents who felt discriminated against in at least one area of life decreased from 42 % in 2019 to 36 % in 2023.
ILGA Europe’s Rainbow Map reports that 16 countries in Europe now have marriage equality. Legislation in countries such as Estonia and Greece came into force as recently as January and February 2024, respectively, to allow for same-sex couples to marry.
Today, schools are doing more work to raise awareness on LGBTIQ+ rights. Over one in five LGBTIQ+ pupils now say that their school addressed the issue positively. In Ireland, the new Social, Personal and Health Education (SPHE) and Relationship and Sex Education (RSE) junior cycle curriculum, published by the National Council for Curriculum and Assessment in 2023, includes references to LGBTQ+ rights throughout. Additionally, the Minister for Children and Equality, Roderic O’Gorman, has stated that he is in favour of primary school students being taught more about what it means to be transgender.
However, despite progress being made in a variety of areas, LGBTQI+ people, and in particular trans and intersex groups, continue to experience hate-motivated violence, discrimination and victimisation, despite the protection afforded by EU law.
According to FRA, even though one in two LGBTQI+ people now report that they are open about their sexual orientation, gender identity and expression, and sex characteristics, most still avoid holding hands with their same-sex partner in public for fear of being attacked. Additionally, over one in three said that they face discrimination in their daily life because of who they are. Over one in ten experienced violence in the five years before the survey, slightly more than in 2019.
Discrimination and harassment can also remain invisible as less than one in ten people surveyed by FRA say that they reported incidents. Intersex, trans, non-binary and gender diverse people face more harassment and violence. They are more likely to face mental health issues, with over half reporting that they have suicidal thoughts. They are also more likely to experience homelessness and struggle to access medical care. This is also true for LGBTQI+ people with disabilities, in financial hardship or members of ethnic, racial or other minority groups.
Towards the Future
A recent report, published by the European External Action Service (EEAS) in October 2023, shows that cases of Foreign Information Manipulation and Interference (FIMI), including disinformation, that explicitly target LGBTQI+ are increasing in frequency. A report by the EU-funded European Digital Media Observatory (EDMO) in May 2023 also warned that LGBTIQ+ disinformation “is becoming more and more insidious”. According to the EEAS, the potential and real consequences of disinformation targeting LGBTIQ+ communities include: the hardening public opinion in support of existing discriminatory legislation, the fuelling of potential further erosion of hard-won rights of LGBTQ+ people, as well as the posing of perceived and real risks to personal safety.
The European Elections, which took place in June 2024, present challenges and opportunities in the furthering of LGBTQI+ rights. For example, MEPs Marc Angel and Kim van Sparrentak, co-chairs of the LGBTQI+ Intergroup at the European Parliament were both re-elected. Closer to home, Irish MEP Maria Walsh, Vice-President of the LGBTQI+ Intergroup, was also re-elected. However, the election results across Europe saw far-right parties win significant gains. This shift is not only visible at the EU level but is also permeating national politics in countries like France, Germany, Austria, and the Netherlands. ILGA Europe say that such a trend poses direct threats to the advancement of human rights, particularly for the LGBTQI+ community.
As of 1 July 2024, Hungary will hold the Presidency of the Council of the EU for a six-month period. Hungary, a Member State with a poor human rights and rule of law record, is currently in infringement proceedings with the European Commission regarding its anti-LGBTQI+ “Child Protection Law” which was passed in 2021. Over the past year, the stigmatising effects of that law have become increasingly apparent, notably in the restrictions placed on depictions of LGBTQI+ persons in books, cultural institutions, and in the media.
In France, LGBTIQ+ rights groups have expressed fear at the possibility of the far-right National Rally party coming to power in the coming weeks with the final round of parliamentary elections taking place on Sunday (7 July). The National Rally, led by Marine Le Pen, has a homophobic reputation. France saw a sharp rise in anti-LGBTQ incidents in 2023, according to a report published by the French interior ministry in June 2024. Activists say that this could become more widespread should the National Rally form a majority in the French parliament.
In Ireland, progress continues to be made in the sphere of LGBTQI+ rights. A Bill which would place a ban on so-called “conversion therapy” has been listed as a priority for the Summer 2024 Government Legislative Programme. However, like many other EU countries, civil society organisations and activists often step in to fill the absence of public services to support LGBTQI+ people with basic needs.
However, Ireland does not yet legally recognise non-binary genders, the country’s provision of trans healthcare continues to be the worst in the EU with detrimentally long wait times, and there has still been no progress made on banning medically unnecessary and non-consensual surgeries performed on intersex children.
June 2023 marked the 30th anniversary of the decriminalisation of homosexuality in Ireland. However, LGBTQI+ equality across Europe is at a crossroads coloured by progress and challenges. Let the rainbow flags that you see in doorways and windows over the coming months act as a reminder of the ongoing struggle for full recognition of LGBTQI+ rights and the importance of showing solidarity and providing support.
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