Written by Piotr Bakowski, Marc Lilienkamp and Rosamund Shreeves,
Although prohibiting discrimination and protecting human rights are key elements of the EU legal order, discrimination against lesbian, gay, bisexual, transgender and intersex (LGBTI) persons persists throughout the EU, taking various forms including verbal abuse and physical violence. The first ever EU-wide survey on the extent and nature of discrimination, violence and hate speech experienced by LGBT people across the EU, conducted by the EU Fundamental Rights Agency in 2012, found that almost half of the respondents had felt personally discriminated against or harassed within the previous year, whilst a quarter said that they had been attacked or threatened with violence in the past five years. Lesbian women (55 %), young people (57 %) and poorer LGBT people (52 %) were more likely to be discriminated against, whilst trans persons were shown to experience the highest levels of discrimination, harassment and violence amongst all LGBT subgroups. One of the key findings was that 90 % of such incidents go unreported to the authorities. A study issued for Parliament in 2018 has quantified the serious impact of discrimination on LGBTI individuals and wider society (including increased health risks, estimated lost earnings of €19-53 million and a GDP loss of €25-71 million) and highlighted the uneven protection in the current EU anti-discrimination legislation.
Although sexual orientation is recognised in EU law as a ground of discrimination, the scope of the provisions is limited and does not cover social protection, healthcare, education and access to goods and services, leaving LGBTI people particularly vulnerable in these areas. Moreover, EU competence does not extend to recognition of marital or family status. In this area, national regulations vary, with some Member States offering same-sex couples the right to marry, others allowing alternative forms of registration, and yet others not providing any legal status for same-sex couples. Same-sex couples may or may not have the right to adopt children and to access assisted reproduction. These divergent legal statuses have implications, for instance, for partners from two Member States with different standards who want to formalise/legalise their relationship or for same-sex couples and their families wishing to move to another Member State. In practice, lesbian and gay couples can encounter problems getting their partnership and rights recognised in another EU country. For instance, two women legally married in the Netherlands may lose pension, inheritance, next-of-kin, or child custody rights when moving to, say, Italy, Latvia, or Romania.
During its eighth term, the European Parliament has adopted a number of resolutions strongly condemning homophobia, highlighting discrimination and calling for further legislation and action to protect and extend LGBTI rights:
- Regarding the EU legislative framework, it has called for monitoring to ensure proper transposition and implementation of existing EU legislation and reiterated its support for a proposed new directive, which would protect against discrimination outside the labour market, but on which the Member States have as yet been unable to agree.
- On family and free movement issues, Parliament has encouraged the EU and the Member States to ‘reflect on the recognition of same-sex marriage or same-sex civil union as a political, social and human and civil rights issue’ and called for further action to ensure that same-sex couples and their families can truly exercise their right to free movement across the EU, including automatic cross-border recognition of adoption orders, without discrimination.
- In March 2018, Parliament’s Annual resolution on the situation of fundamental rights in the EU condemned all forms of discrimination against LGBTI people, including the practice of LGBTI conversion therapies and the pathologisation of trans people, and stressed the urgency of tackling increasing levels of hate speech and hate crime. Its resolution on gender equality in the media sector in the EU, adopted in February 2018, puts forward concrete proposals for combating hate speech and harmful stereotypes.
- Parliament has also drawn attention to the human rights situation for LGBTI people outside the EU and the need to ensure that their situation is taken into account in asylum procedures.
To mark this year’s International Day Against Homophobia, Transphobia and Biphobia (IDAHOT) on 17 May, the Parliament’s Intergroup on LGBTI Rights – an informal forum for MEPs – is organising a specific event to highlight the situation of LGBTI people seeking asylum in Europe.
The United Nations Refugee Agency (UNHCR) notes that, in addition to the risks faced by refugees at large, LGBTI refugees also face a series of risks that that are unique to sexual minorities. In 2017, the first annual report from the UN’s Independent Expert on Sexual Orientation and Gender Identity gave an overview of the current global situation. It documents widespread physical and psychological violence against LGBTI persons in all regions — including murder, assault, kidnapping, rape, sexual violence, as well as torture and ill-treatment in institutional and medical settings — and highlights that displaced LGBTI persons may face continued or additional discrimination in the country in which they seek asylum or when they are internally displaced within their country of origin. UNHCR guidelines on interpreting claims to refugee status based on sexual orientation and/or gender identity were adopted in 2012.
Nevertheless, in 2017 the EU Fundamental Rights Agency’s review of the current situation in the EU for lesbian, gay, bisexual, transgender and intersex asylum seekers, found that although international and EU law guarantees safety to those fleeing persecution, in practice LGBTI people are not receiving the protection they need. There are considerable differences between procedures in the EU Member States in terms of how they take account of claims based on sexual orientation and gender identity and only some EU Member States are applying the UNHCR guidelines. Advocacy organisations, such as ILGA-Europe and Transgender Europe, have also called for further action to ensure that LGBTI asylum seekers and refugees are given more effective protection in the EU and that the proposed new package of measures on the Common European Asylum System takes the specific situation of LGBTI people into consideration.
For its part, the European Parliament is preparing a number of amendments to this new migration legislation, to ensure that the specific problems encountered by LGBTI refugees and asylum seekers are taken into account in procedures for assessing asylum claims and arrangements for reception and resettlement. Parliament has already adopted a resolution highlighting the need for asylum professionals, including interviewers and interpreters, to receive proper training on the needs of LGBTI people and for LGBTI-sensitive reception facilities across all Member States. Its resolution of February 2017 on equality between women and men in the European Union in 2014-2015 also calls for refugees who are victims of violence based on [their] sexual orientation or gender identity to be given support ‘at all stages of the migration process’, including measures such as immediate relocation if their safety cannot be guaranteed, mental health support and immediate gender identity recognition for the duration of asylum procedures.
See also our briefing on The rights of LGBTI people in the European Union.