Committee on Civil Liberties, Justice and Home Affairs I
The civil rights of LGBTQA+ persons are still not recognised in full in various Member States. How should the European Union better protect them while taking into account the diverse political, social and cultural backgrounds?
Chairpersons : Aurore Desruisseaux (FR)
- Gender: Either of the two sexes (male or female), especially when considered with reference to social and cultural differences rather than biological ones. Other genders are now recognised (e.g. genderqueer).
- “Antigender”: Opponent to the notion of “gender” who considers that the biological sex and the gender are one single thing, (e.g. antiboy is the opposite of a boy, but not a girl)
- LGBTQA+: (Lesbian, Gay, Bisexual, Transgender, Queer/Questioning and Asexual): Acronym which is used to refer to a number of sexual orientations and gender identities that don’t fall under the hetero- and cis-normative umbrella.
- Cisgender: People whose gender identity matches the sex that they were assigned at birth.
- Genderqueer: Identity that falls anywhere between male and female on the spectrum of gender identities.
- Intersex: A person born with ambiguous sex characteristics that do not seem to conform to cultural or societal expectations.
- Third Gender: The third gender would be another gender alternative between male and female on identity documents.
- Transgender: People whose gender identity doesn’t match the sex that they were assigned at birth.
- Transsexuals: People whose gender identity doesn’t match with the sex that they were assigned at birth and who feel the need of undergoing a sex reassignment surgery.
Is Europe a safe haven for the LGBTQA+ community? Although sexual orientation and
sexual identity are recognized as causes of discrimination by Member States’ and European laws, the community is not completely undisturbed: wage discrimination, glass ceiling and harassment are still prevalent. A society can be an unfriendly place for LGBT people: “It still hurts. In my lower belly. In my anus. I bleed. My soul bleeds. Dear judging people, I puke your violence in the name of the norm. A corrective rape, blows, sputum, insults or transphobia on an official level, everything is pretty much the same to me. You are killers on a more or less long run. But I’m still here. Transphobia kills”1 testifies Elsa, a young transgender, after a stay at a hospital caused by a corrective rape. Elsa, just like much of the LGBT community, are still victims of injustice occurring in countries that seem determined to respect their rights.
Taking into account that there is a huge diversity of sexual inclinations and sexual identities, which the acronym LGBTQA+ refers to, there is a plenty of different issues the community has to face.
Do LGBTQA+ people suffer from “mental illness”? Indeed, a few decades ago, homosexuality and transexuality were considered to be mental illnesses and even crimes in a large number of the Member States legislation: homosexuality was decriminalized in some Member States such as Romania as late as in the nineties.2
It is important to bear in mind that until recently transsexuality and homosexuality were considered to be diseases by the World Health Organisation:
– 1990: Homosexuality removed from the list of mental diseases by the WHO,
– 2011: every “Gender Identity Disorder” is removed from that same list.
However, changing the legislation is usually not enough to change people’s minds. Nowadays, LGBT persons suffer from discrimination: as they still can be perceived as “creepy” by some. Indeed, the difference is often misunderstood and it leads to reactive behaviours: this is the origin of “LGBTphobia.”
Workplace difficulties: although 89% of LGBT people consider they feel well integrated at work, some discrimination still occurs, especially in the process of getting hired: in all Member States, the legislation forces transgender people to show their legal sex. Written on the identity card, it can become a cause of discrimination when shown to a transphobic employer. Furthermore, the existence of discrimination based on appearance is very much visible. The three main reasons for discrimination at work according to LGBT people living in France are: mockeries from the colleagues (60%), peer exclusion (31%) and inequalities with regard to the development of their career (29%).3
Discrimination at school: School is a ruthless place for LGBT people because there is a huge pressure for them to stick to gender norms. This pressure is the result of the lack of introduction of awareness-raising measures, education and/or information of people about the LGBT issues. In the case of Ireland, Italy and Poland,4 the influence of the Roman Catholic Church is be contributing to that state of affairs.
Moreover, measures aimed at facilitating the integration of LGBT people have proven to be problematic in terms of acceptance because they seem to contradict the societal values of those countries. A French polemic of 2011 about a biology textbook can serve as an example.5
A third sex?
For the past few years, the debate about the creation of a third sex on the civil registry has been taking place across the European continent.6 Germany has been the first country to allow it, but only for intersex children.7 Some other Member States are also considering the creation of a third sex in their legislation (e.g. UK and Portugal). In the Netherlands, when the sex of a child is ambiguous, the legislation allows to express the ambiguity on the birth certificate and when he or she will be a grown up, the child will have the possibility to change it.
The path up to the recognition of a “third sex” is generally tough for intersex people (as the case of Gaëtan Schmitt in France proves8), and is even worse for genderqueer people:9 biologically, they are in the norms so the only thing that make them feel outside of the traditional pattern is their feelings, which is not enough for a large part of the society. Furthermore, the idea of a “third sex” has staunch opponents. They argue that:10
- It would throw off the social balance by destroying the traditional “women-men” pattern,
- The “third sex” would be a source of discrimination because it would create “parias,”
- It would have a too heavy legal impact.
A multi-speed Europe
LGBT rights, notably the marriage for all, are not accepted in all Member States. We can notice the existence of a Western – Eastern Europe divide. Gay marriage and adoption are indeed recognized in 14 Member States whereas 6 countries do not accept it. In communist regimes of Central and Eastern Europe, homosexuals were tracked and subject to police’s intensified harassment. This can serve as an explanation for why certain societies are reluctant towards a greater recognition of LGBT rights.
EU’s stance and actions
For over twenty years now, legislation has been in favour of the recognition and protection of LGBT people. The European Parliament played a crucial role in the process:
- 1998: the EP states in a resolution that it will reject the membership of a country that “violates human and homosexual rights”11
- 1999: the EU protects explicitly for the first time sexual orientation in the Amsterdam Treaty12. Furthermore, an Employment Directive has been adopted to fight discrimination at work.
- 2000: The EU adopts the Charter of Fundamental Rights which forbids any discrimination based on sexual orientation. This Charter became legally binding in 2009 with the Lisbon Treaty13.
The main part of those measures protects only sexual orientation. Homophobia is indeed fought stronger than transphobia. But there have been some improvements lately: the notion of transphobia has been introduced to the French legal system in 2012.
The Committee of Ministers of the Council of Europe adopted a recommendation in 2010 to invite the Member States to fight discrimination based on sexual inclinaison or gender identity, especially in the area of education. But only a handful of countries have put measures in place:
- In Estonia and the Netherlands, the school program approaches sexual orientation but not transsexuality.
- In Norway, transsexuality is approached in textbooks. Moreover, a national action plan has been introduced so as to create new teaching materials which take into account the issue of discrimination against LGBT people.
To conclude, the EU and its Member States, especially the Western States, have made significant progress in favour of LGBT rights. Nevertheless, there is still room for improvement with regard to:
- public awareness of the issues faced by the LGBTQA+ people,
- anti-discriminatory laws and their enactment,
- the acceptance towards LGBT people in the countries of the former Soviet sphere of influence.
On the other hand, taking into account the actual debates, it is worth to reflect upon:
- the legitimacy of gay marriage and adoption,
- the creation of a third sex in the legal system,
- the procedure of changing the legal sex and its possible consequences for individuals undergoing it (such as discrimination at work).
1. Lutte contre la transphobie en raison de l’expression et l’identité de genre, Sos Transphobie, http://www.sostransphobie.org
2. Les droits des homosexuels dans l’UE, TOUTE L’EUROPE, Décembre 12, 2017, https://www.touteleurope.eu/actualite/les-droits-des-homosexuels-dans-l-ue.html
3. LGBT et monde du travail en 2017, Autre Cercle et IFOP, 2017, http://www.autrecercle.org/sites/default/files/OAC/BAROMETRE/barometre_ifop_2017_mail_vf3.pdf
4. Discrimination on grounds of sexual orientation and gender identity in Europe, Council of Europe, September 2011, https://www.coe.int/t/commissioner/Source/LGBT/LGBTStudy2011_en.pdf
5. There has been a petition of the “Associations Familiales Catholiques” for the withdrawal of biology textbooks due to a chapter named “Becoming a woman or a man”. Anti-genders found the title too ambiguous, arguing that “it is like saying that we can choose our gender.”
6. The third gender would be another gender, alternative to both male and female, to be used in legal documents.
7. T. Paterson, Germany becomes first country in Europe to give ‘third sex’ option for babies of ‘indeterminate’ gender, The Independent, November 1, 2013, http://www.independent.co.uk/news/world/europe/germany-becomes-first-country-in-europe-to-give-third-sex-option-for-babies-of-indeterminategender-8917764.html
8. C. Mallaval, La Cour de cassation refuse la mention «sexe neutre» pour un intersexe, Libération, May 4, 2017, http://www.liberation.fr/france/2017/05/04/la-cour-de-cassation-refuse-la-mention-sexe-neutrepour-un-intersexe_1567241
9. Identity that falls anywhere between male and female on the spectrum of gender identities.
10. E. Remsberg, Pour ou contre la reconnaissance d’un troisième sexe?, Capital, May 4, 2017, https://www.capital.fr/polemik/pour-ou-contre-la-reconnaissance-d-un-troisieme-sexe-1223603#1fias
11. Resolution on equal rights for gays and lesbians in the EC, OJ C 313, 12.10.1998, p. 186
12. Initial analysis of the Treaty of Amsterdam, European Parliament, June 30, 1997, http://www.europarl.europa.eu/topics/treaty/analysis/section1_en.htm
13 Quels droits pour les personnes LGBT dans l’Union Européenne?, Pour la Solidarité, May 2012, http://www.pourlasolidarite.eu/sites/default/files/publications/files/wp2012_05_quels_droits_pour_les_personnes_lgbt_dans_lunion_europeenne.pdf