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The fundamental rights of LGBT people

The findings of a recent survey of the Fundamental Rights Agency show that one in two LGBT people felt discriminated against or harassed in the twelve months preceding the survey. In the area of employment, as well as in other areas such as education, healthcare, housing, etc., this minority is often confronted by homophobic or transphobic behaviour. Moreover, FRA Director Morten Kjaerum recently underlined the violence and discrimination LGBT persons are faced with during their daily lives. Such statements show the need for further protection in terms of LGBT fundamental rights. This dossier presents a collection of reports, studies and scientific articles tackling this particular aspect. Furthermore, it contains detailed case-law sections (ECtHR and CJEU) tracing the evolution of LGBT issues before the two Courts. Focusing on the freedom of assembly, the right to respect of private life, the right to education, the right to protection from inhuman or degrading treatment and the social rights of LGBT persons, this Library Keysource aims at exploring the current trends of these sensitive policy and judicial areas.

For further information you may wish to refer to:

Same sex unions / Library Keysource (2013)

Overview

Annual review of the human rights situation of lesbian, gay, bisexual, trans and intersex people in Europe / ILGA-Europe, 2013, 242p.

LGBT rights

@ Kraphix / Fotolia

Covering the period from January 2012 to December 2012, this report focuses on reports and trends regarding the human rights situation of LGBT persons. It contains reviews evaluating the situation of the LGBT community in several countries and the actions/positions of some international organisations on the topic.

Discrimination on grounds of sexual orientation and gender identity in Europe / Council of Europe, 2011.

This report consists of a study on homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity done in the 47 Member States of the Council of Europe. Its findings are developed in six chapters: attitudes and perceptions; legal standards and their implementation; protection: violence and asylum; participation: freedoms of assembly, expression and association; privacy: gender recognition and family life; access to health care, education and employment.

Freedom of assembly and association

State-sponsored homophobia and the denial of the right of assembly in Central and Eastern Europe: the “boomerang” and the “ricochet” between European organisations and civil society to uphold human rights / Ronald Holzhacker, in Law&Policy, vol. 35, no.1-2, 2012, 28p. [to access this document online, a database subscription is needed]

The author focuses on the recent progress that has been registered in the recognition of the fundamental democratic right of assembly for LGBT communities and explains the role of the EU, the Council of Europe, NGOs and civil society in this social and legal change.

Homosexuality, freedom of assembly and the margin of appreciation doctrine of the European Court of Human Rights: Alekseyev v Russia / Paul Johnson, in Human Rights Law Review, vol. 11, no. 3, 2011, pp. 578-593. [to access this document online, a database subscription is needed]

This article discusses the Alekseyev v. Russia (no. 4916/07, 25924/08 and 14599/09) ruling and highlights the European Court of Human Rights’ willingness to sanction the behaviour of the Russian government who intervened and restrained several peaceful LGBT assemblies in Moscow.

Case law (ECtHR)

Gay rights activists are sometimes confronted by reluctant local authorities when organising peaceful public assemblies. The Strasbourg Court has been asked to state its position on the lawfulness of gay march restrictions on several occasions. In 2005, the Warsaw administrative authorities refused to grant permission for a march aiming to raise public awareness of discrimination against minorities which gave rise to the Bączkowski and Others v. Poland (no. 1543/06) ruling. In this case, the ECtHR stated that the Polish government had violated ECHR’s freedom of assembly and association provisions. Similarly, The Court concluded that there had been a breach of Article 11 ECHR by the Russian authorities who decided to ban several gay marches in Moscow in the Alekseyev v. Russia (no. 4916/07, 25924/08 and 14599/09) judgment. More recently, Moldova was found to have violated its obligations to ensure freedom of assembly on its territory by prohibiting a demonstration promoting the interests of the LGBT community – Genderdoc-M v. Moldova (no. 9106/06). Also, the Zhdanov and Rainbow House v. Russia (no. 12200/08) case is now pending before the Strasbourg judges. The latter will have to decide on the refusal to grant state registration to an LGBT association.

Right to respect of private life: marriage and adoption

Le mariage homosexuel en Europe / Toute l’Europe

This website section gives a clear outline on same-sex marriages throughout Europe. Furthermore, it provides an overview of the potential EU impact on this issue.

Ties that bind: towards a child-centred approach to lesbian, gay, bi-sexual and transgender families under the ECHR / Loveday Hodson in The International Journal of children’s rights, vol. 20, no. 4, 2012, pp. 501-522.

The author argues that the ECtHR has adapted its interpretation of the concept of family to the societal evolutions of recent years and the changing nature of intimate relationships. Nevertheless, he considers that the Strasbourg case law doesn’t yet eliminate the possibility of denying full enjoyment of their family rights to children raised in non traditional families.

European Court Human Rights: Member States not obliged to offer same-sex couples access to marriage / Rowan Pennington-Benton, 2012, pp. 572-573.  [to access this document online, a database subscription is needed]

Brief comment on the Gas and Dubois v. France (no. 25951/07) judgment by the ECtHR.

L’adoption homosexuelle à l’épreuve du principe d’égalité: l’arrêt E.B. contre France / Marie Demaret, in Journal des tribunaux, no. 9, 2009, pp. 145-149.  [to access this document online, a database subscription is needed]

Cet article présente l’évolution de la position des juges de Strasbourg quant à la possibilité des couples homosexuels d’adopter un enfant. L’auteur commence par une description détaillée de l’interaction entre le droit à la vie privée et le droit d’adopter dans la jurisprudence strasbourgeoise et continue avec une analyse de l’arrêt E.B. c. France (no. 43546/02). Dans cette affaire, la Cour a dû statuer sur la légalité d’un rejet d’une demande d’adoption introduite par une requérante homosexuelle.

Case-law (ECtHR)

Private life 

Article 8 ECHR (right to respect for private life and family life) has been frequently invoked before the Strasbourg judges. In the Rees v. the United Kingdom (no. 9532/81) case concerning the refusal to change the birth certificate of a female-to-male transsexual following his sexual conversion, the Court held there was no violation of this ECHR provision. Similar conclusions have been reached in Cossey v. the United Kingdom (no. 10843/84). B. v. France (no. 13343/87) was the first case regarding the recognition of transsexuals in which the ECtHR found there was a violation of the right to private life. The Court’s decision was highly influenced by the differences between the British and French civil status systems. While the first one very rarely admitted amendments to birth certificates, the French one included updates throughout the life of the person concerned. Another ruling worth mentioning is X, Y and Z. v. the United Kingdom (no. 21830/93). Even though no violation of Article 8 was found, the Court recognized the existence of a family life between a transsexual and his partner’s child. Also, in the Christine Goodwin v. the United Kingdom (no. 28957/95) judgement concerning the legal recognition of a transsexual person’s changed sex, the applicant’s right to private life was found to have been violated. More importantly, the ECtHR highlights the “increased social acceptance of transsexuals“. Furthermore, the requirement to prove the medical necessity of a gender conversion treatment in order to claim the reimbursement of its costs was found to be disproportionate in Van Kück v. Germany (no. 35968/97). Grant v. the United Kingdom (no. 32570/03) concerned the refusal to pay the applicant, a male-to-female transsexual, a retirement pension at the age applicable to women which constituted a violation of her right to private life. Analogous violations were found in L. v. Lithuania (no. 27527/03) and Schumpf v. Switzerland (no. 29002/06). Nevertheless, no violation was identified in the decision to restrict the contact arrangements of a male-to-female transsexual with her son because of her emotional instability after the change of sex. 

Marriage 

Despite the wording of Article 12 ECHR, “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”, applicants aspiring to a same-sex marriage have pleaded, on several occasions, for an evolutive interpretation of this provision. The ECtHR has nevertheless decided to give the contracting states a margin of appreciation in granting same-sex couples access to marriage: Schalk and Kopf v. Austria (no. 30141/04) and Gas and Dubois v. France (no. 25951/07). Giving a textual interpretation to this article, the Strasbourg Court considers that “national authorities, who are best placed to assess and respond to the needs of society“. The Chapin and Charpentier v. France (no. 40183/07) case is now pending before the ECtHR. It concerns a marriage of two men that has subsequently been declared null and void.

Adoption 

Even if there is no right to adopt or to be adopted included per se in the ECHR, LGBT persons have contested refusals of their adoption applications in front of the ECtHR using a combination of articles of the Convention: Article 14 (prohibition of discrimination) and Article 8 (right to respect of private life). In Fretté v. France (no. 36515/97) the Court held that there was no violation of Article 14 in conjunction with Article 8 as the applicant’s willingness to adopt a child was limited by the interests of the children eligible for adoption. However, several years later, in E.B. v. France (no. 43546/02), the ECtHR stated that as the French government had made adoption for single persons possible, it could no longer refuse adoption authorisation on grounds that the child would not have a paternal figure. In a 2012 ruling, Gas and Dubois v. France (no. 25951/07), the Court did not see any violation of Article 14 and 8 in the French government’s refusal to allow the adoption of a partner’s child in a homosexual couple. Second parent adoption right was also disputed in X and Others v. Austria (no. 19010/07). Conversely, EU judges have identified a breach of Article 14 in conjunction with Article 8 because whereas the French legislation in the abovementioned case did not allow second parent adoption for heterosexual couples either, the Austrian law did provide such a possibility.

Right to education

Challenging homophobic bullying in schools: the politics of progress / Daniel Monk, in International Journal of Law in Context, vol. 7, no. 2, 2011, pp. 181-207.  [to access this document online, a database subscription is needed] 

This article tackles the phenomenon of homophobic bullying in schools which is currently addressed not only by NGOs but also by governmental policies and strategies. More particularly, it analyses the factors that have enabled homophobic bullying to be a harm that can be spoken of.  

Social rights

Some are more equal than others: the impact of discrimination in social security on the right of same-sex partners to free movement in the European Union / Simon Roberts and Maija Sakslin, in The Journal of Poverty and Social Justice, vol. 17, no. 3, 2009, pp. 249-261.  [to access this document online, a database subscription is needed]

Focusing on a case study conducted in six EU countries: Cyprus, Finland, Ireland, Slovenia, Spain and UK, this article describes the variety of civil statuses offered by EU MS to same sex partners and the impact that has on homosexual couples moving from one MS to another, therefore, from one regime to another.

The situation of LGBT groups in the labour market in the European Member States / European Commission Network of Socioeconomic Experts, 2011, 59p.

This study shows the attitude to which LGBT people face in the field of employment. It highlights the fact that MS do not have action plans aiming at the social inclusion of LGBT persons and that non-heterosexuals are not encouraged to disclose their sexual orientation at their workplace.

Case law (ECtHR)

The ECHR has dealt with different cases involving the social rights of LGBT persons from the ineligibility of a homosexual couple for a survivor’s pension in MataEstevez v. Spain (no. 56501/00) to the refusal to extend sickness insurance cover to the partner of a homosexual person in P.B. and J.S. v. Austria (no. 18984/02). Furthermore, two other cases are currently pending before the ECHR. The first one, Taddeucci and McCall v. Italy (no. 51362/09), concerns the refusal by the Italian authorities, to grant a residence permit to the partner of an Italian resident, a New Zealand national. In the second, Vallianatos and Mylonas v. Greece and C.S. and Others v. Greece (nos. 29381/09 and 32684/09), the applicants challenge the allegedly discriminatory nature of the “civil unions” Greek legislation

Case law (CJEU)

Article 13 of the Treaty of Amsterdam (now article 19 TFEU) provided that the EU legislator could “take appropriate action to combat discrimination based on […] sexual orientation“. Nevertheless, even before its entry into force, EU citizens contested national discriminatory behaviours before the CJEU. For example, in the P v S and Cornwall County Council (C-13/94) affair, the applicant invoked Directive 76/207/EEC (now Directive 2006/54) in order to challenge the employer’s decision to dismiss her as a consequence of a gender reassignment operation. The Court stated that Article 5(1) of the directive precludes dismissal of a transsexual for such a reason. However, the EU judges decided that South West Trains Ltd (C-249/96) did not violate article 119 EC (now article 157 TFEU) when refusing to grant free and reduced rate travel concessions to the same sex partner of one of their employees. It is worth mentioning that the AG Elmer had not taken the same view in his opinion. Furthermore, in its K.B. v National Health Service Pensions Agency and Secretary of State for Health (C-117/01) ruling, the Court discussed the entitlement to a survivor’s pension for same sex couples. Two other affairs, Tadao Maruko v. Versorgungsanstalt der Deutschen Bühnen (C-267/06) and Jürgen Römer v Freie und Hansestadt Hamburg (C-147/08) concerned the application/interpretation of several provisions of the Directive 2000/78 establishing a general framework for equal treatment in employment and occupation.

Right to protection from inhuman or degrading treatment

Case law (ECtHR) 

Several cases of homophobia and ill treatment in prisons have been brought before the Strasbourg Court. Vincent Stasi v. France (no. 25001/07) concerned a homosexual prisoner who was subject to acts of violence committed by another prisoner while sharing the same cell. In this case the Court stated that there was no violation of Article 3 ECHR as the authorities had taken all the measures – he was allowed to take a shower alone, he was accompanied by a warden when he moved around and he was placed in segregation until his release – that could reasonably be expected of them in order to protect the physical integrity of the applicant. The circumstances in the X. v. Turkey (no. 24626/09) case led the ECtHR to a different conclusion. It considered that the detention conditions had been such as to cause mental and physical suffering. A violation of Article 3 ECHR could therefore be established.

Fundamental rights of LGBT persons in EU external relations

Recently, the EU Foreign Affairs Council has published some Guidelines to promote and protect the enjoyment of all human rights by LGBTI persons. Warmly welcomed by the EP’s Intergroup on LGBT rights, this document is in fact a prolongation of the commitments embodied in the LGBT Toolkit three years earlier. These new guidelines seek to ensure a proactive approach to protecting and promoting the human rights of LGBT persons in EU’s relations with third countries and with international and civil society organisations. EU efforts will focus on:

–         decriminalisation and combating discriminatory laws and policies;
–         promoting equality and non-discrimination;
–         combating LGBTI-phobic violence;
–         support and protection for human rights defenders.

Discussion

4 thoughts on “The fundamental rights of LGBT people

  1. A reblogué ceci sur Agaciro.

    Like

    Posted by Musore | September 23, 2013, 12:45

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