The illusion of the EU’s commitment to LGBT rights

Posted on 09. February 2015

by Nitin Sood

nitin-soodFinland is the latest example of an EU-member state where LGBT rights (Lesbian, gay, bisexual and transgender) have advanced. Euphoria conquered the hearts of the Finnish people on 28 November 2014 when the parliament voted in favour of citizens’ initiative Tahdon2013 (I do 2013) that pushed for legalisation to allow same-sex marriage. The story of the campaign, which was launched on March 2013, exhibits the traits of a magical activist fairy tale: The required minimum of signatures for an initiative to be sent to Parliament is 50,000, but the campaign succeeded in collecting over 90 000 signatures by the evening of the first day and within six months, 166 851 citizens had signed it. In essence, Tahdon2013 mobilised a nation-wide, one of a kind popular movement in support of people whose love was still criminalised a few decades ago.

Other member states witnessed progress in the domain of LGBT last year as well. Same-sex couples are now able to wed in the UK (with the exception of Northern Ireland), while the Maltese government unanimously approved the Civil Unions bill that also grants same-sex couples the right to adopt. Regarding trans issues, Denmark passed a piece of legislation that activists hail as one of the most progressive laws in the world; it allows trans people to obtain documents reflecting their gender without any medical intervention or an opinion of a professional. In other words, Denmark granted its citizens the right to define their own gender without an external intrusion.

These are just a few examples of how far the EU-member states have come. But I am not here to talk about them, although I do not belittle their significance. Instead I intend to explain why we are still far from realising full equality of LGBT individuals in the European Union. As former EU Justice Commissioner Viviane Reding noted: “LGBT people in all countries of the EU continue to be victims of violence, exclusion and discrimination.”

The EU and its member states have been keen to criticise foreign countries for not respecting LGBT rights: we have viciously attacked Uganda for its outrageous anti-gay legislation, the European Parliament has condemned the homosexual propaganda bill in Kyrgyzstan and of course there is Russia. In 2010, the European External Action Service (EEAS) even published a LGBT toolkit to promote their rights in third countries. However, the EU has not done enough to prevent the regression that is taking place on its own soil, despite the assurances of Commissioner Reding.

In 2013, the newest EU-state Croatia held a constitutional referendum in which two thirds of the population voted in favour of banning same-sex marriages. The trend is not unique, as six other EU-member states have the same provisions in their constitution, including Poland, the native counry of the current President of the European Council, Donald Tusk. Slovakia, which already introduced similar restrictions last year, has scheduled a referendum for 7 February that aims to further tighten the legal definition of the family and ban the right to adopt for same-sex couples. Yet the European Parliament has not passed a single motion condemning these recent developments.

Also, let us not forget that the issue of same-sex marriage is just a miniscule fraction of the LGBT communities’ struggle. LGBT individuals experience frequent discrimination, fear, disrespect, maltreatment, harassment and violence throughout the Union. LGBTs have trouble finding employment, suffer considerably more from mental health problems than the rest of the population and fear to show public affection. In most of the member states, men who have had sex with men are barred from donating blood. The European Union Agency for Fundamental Rights’ (FRA) report, which covers the entire Union, discovered that an overwhelming 47% of respondents felt discriminated against or harassed due to their sexual orientation or gender identity.

Recently a Lithuanian Member of Parliament warned that a local LGBT NGO will face a massacre like those in Paris if they continue with their ‘provocative’ activities. In Austria, a lesbian couple was thrown out of a café because they were kissing, while in the UK, a taxi driver kicked out a gay couple for cuddling in his back seat. In England, a trans woman was fired for using the women’s bathroom. Amnesty International reveals that hate crimes persist in Europe and just 13 member states collect data on homophobic hate crimes. The number drops to five when it comes to transphobic hate crimes. Those who seek asylum in the EU because of their sexual orientation and gender identity have to answer questions about intimate aspects of their lives or are tested in order to prove their sexuality. The EU court blocked such tests last year, but authorities are still allowed to use different methods, in line with EU law, to determine whether certain asylum seekers are gay.

The ill-fated situation hits the LGBT youth particularly hard. An alarming number of students experience bullying at school due to their perceived identity and FRA found that 67% of respondents were forced to hide their sexual orientation or gender identity. Furthermore, the same research concluded that an overwhelming 91% of repliers had heard negative comments or seen negative conduct because a schoolmate was perceived to be LGBT. Young individuals may feel insecure at school, which could reduce their attendance and performance, and ultimately affect their future plans and careers. Also, LGBT youth’s mental health and wellbeing is often not as good as their peers, which results in substance abuse and suicidal thoughts. In addition, research shows that a disproportionate amount of young, homeless people identify as LGBT. The FRA report concluded that the youngest respondents were one of the most vulnerable groups among LGBT communities: they were the ones who most felt that the environment was hostile towards LGBT, were least likely to be open about being LGBT and most likely to state that they had been victims of violence or discrimination.

Transgender people are the second of the two most marginalised groups that FRA identified in the survey. EU member states, with the exception of Denmark, continue to trample the rights of trans people, as the requirements for gender recognition intrude an individual’s personal autonomy and violate the right to self-determination. In its report The State Decides Who I Am,Amnesty International finds that in most European countries transgender people cannot obtain legal recognition of their gender unless they get a psychiatric diagnosis and undergo medical treatments that include hormone treatment, surgeries and irreversible sterilization. Finland had prepared to change its draconian trans laws but dropped the plans because of the objections from the Christian Democrats, a coalition partner. In Ireland, it is not even possibly for an individual to obtain official documents that would reflect the correct gender, although the parliament is considering a bill that would allow it (with provisions that would violate their fundamental rights). Besides rigid state-sponsored transphobia, trans people in the EU face widespread violence and discrimination. In FRA’s report Being Trans in the European Union, about 30% of trans people said they were victims of violence or threats of violence more than three times in 2012. It also mentioned that since 2008 twenty-seven trans people have been murdered in Italy alone. Research reveals that the life of a trans person in the EU is hindered at various levels, partly because of the lack of legal protection for trans people. While EU law protects people against discrimination based on sexual orientation in the area of employment, it does not explicitly mention gender identity or expression of gender (Employment Framework Directive 2000/78).

While FRA recognises the concerns of transgender and LGBT youth, the study fails to identify intersections between forms of oppression and discrimination pertaining to LGBT people. Because the survey did not ask specific questions about the background of respondents, such as ethnic background, socio-economic status, location (rural/urban) and (dis)abilities, the research neglects to shed a light on European citizens who are LGBT, but who also belong to one or more other social categories that are systematically being discriminated. The needs of these people in particular are being ignored when devising policy, and not just by the EU and its member states, but also by advocacy organisations.

Contrary to the popular belief, legalising same-sex marriage is just the tip of the iceberg for most European LGBT people. The EU has a long way to go before it can truly deserve its reputation of champion of LGBT equality and human rights. While the EU lacks competences and jurisdiction over social issues of its member states, it should vocally condemn policies and legislation that intend to restrict LGBT rights. The lack of openly LGBT high-level EU-officials sends an alarming message to young LGBT Europeans who aspire to make a difference in the world through the EU institutions. Just as the EEAS published a tool-kit to combat LGBT discrimination in third countries, the EU should develop intersectional action plans that promote respect for LGBT people in the EU and support member states to integrate sexual orientation, gender identity and gender expression issues in their national human rights policies and strategies. The EU should also rapidly adopt the Horizontal directive, which has been stalled for over six years now. If adopted, it will outlaw discrimination based on sexual orientation across the EU in areas of social protection, social advantages, and access to goods and services.

On the whole, the situation of LGBT people is not as exceptional in the EU as one would expect with the progress that has taken place in some of the member states. Discrimination, harassment and fear are still part of the lives of LGBT individuals all over Europe. Perhaps the EU will witness a fairy tale similar to that of Tahdon2013, which managed to mobilise a lot of people to rally for the rights of the LGBT community. But the Commission, the European Parliament and other EU institutions should not wait for citizens to demand their rights to be upheld. Rather they should live up to the European values and take firm actions to rectify the current situation in the member states. While criticising Egypt, Uganda, Russia and others for their treatment of LGBT individuals, we should not forget the experiences of our own LGBT here in Europe.

An edited version of this blogpost has been published by EUobserver.