Sexual orientation discrimination in the European Union: the framework directive and the continuing...

International Journal of Discrimination and the Law, 2007, Vol. 8, pp. 263-293 1358-2291/2007 $10 © 2007 A B Academic Publishers. Printed in Great Britain

SEXUAL ORIENTATION DISCRIMINATION IN THE EUROPEAN UNION: THE FRAMEWORK DIRECTIVE AND THE CONTINUING INFLUENCE OF THE EUROPEAN PARLIAMENT

MARK WALTERS*

ABSTRACT

This article examines the effectiveness of sexual orientation discrimination laws prescribed by the European Union. In particular, the article critiques Article 13 of the Treaty Establishing the European Community, and the Framework Directive which was established under the powers conferred by it. It is argued that the Framework Directive is too restrictive in its scope, in terms of the areas of life it covers (i.e. employment only), and that the exceptions to its provisions are unjustly broad. Analysis is also made of recent case law from both the European Court of Justice and the European Court of Human Rights in an attempt to demonstrate the progressive but limited nature of this area of law. As a main theme, the article examines the important role that the European Parliament has had, and continues to have, on the evolution of sexual orientation discrimination law and more broadly, gay and lesbian rights within the European Union.

INTRODUCTION

On the 18th of January 2006 the European Parliament convened to discuss one issue - homophobia. 1 The problem of homophobia and, in particular, sexual orientation discrimination had yet again come to the fore after various Non Government Organisations reported human rights violations against gay men and lesbians2 in several European countries (Human Rights Watch 2006). As one Member of the European Parliament explained, the debate was not about homosexuality but 'about homophobia ... [and] an issue about human rights ... ' (Stubb 2006). The debate was followed by the signing of the European Parliament Resolution on Homophobia in Europe (overwhelmingly passed by 468 votes for to 149 against). The Resolution has provided a fresh platform for the discussion of what needs to be done throughout the European Union (EU) to combat sexual orientation discrimination and is the impetus for this article.

at University of Sussex Library on June 9, 2015jdi.sagepub.comDownloaded from

http://jdi.sagepub.com/

264

Currently, EU law prohibits sexual orientation discrimination within the area of employment only (The Framework Directive).3

This means that all other areas of life including health, education and social security, to name just a few, are left unprotected. Further, the transposition of EU anti-discrimination laws has varied resulting in inconsistent anti-discrimination laws between Member States. These inconsistencies have led to major inequalities between countries. The European Parliament has consistently identified various Member States who are themselves promoting discrimination against gay men and lesbians.4 The defiance shown by these EU States over gay and lesbian rights means that 'persuading' them to produce anti-discrimination laws through domestic legislation will be no easy task. As such, EU law must be used to enforce consistent anti-discrimination laws.

This article looks at the history of sexual orientation discrimination laws prescribed by the European Union in order to protect gay men and lesbians. In particular, the article examines the impact that Article 13 has had (and may have) on the EU's potential to create new directives in this area. 5 Critical analysis of the Framework Directive which prohibits sexual orientation discrimination in the area of employment is made. It is argued that the Directive is too restrictive in its scope and must be amended to include the prohibition of discrimination in other areas of life such as those mentioned above.

Analysis of recent case law from both the European Court of Justice (ECJ) and the European Court of Human Rights (the Court) is made. The interaction between both courts has become important in helping to create a progressive movement towards greater protection from sexual orientation discrimination. However, it is also stressed that European law in the area of sexual orientation discrimination is still limited.

With the EU currently experiencing ideological and structural changes this article highlights the future possibilities of legislating in the areas of equality and non-discrimination. However, it must be emphasised that at the same time the EU will face fierce opposition in implementing laws to protect gay men and lesbians when continuing with its expansion project into Eastern Europe. This is because many gay men and lesbians here face extreme discrimination motivated by cultural and religious disquiet about homosexuality (Human Rights Watch 2006; International Lesbian Gay Association - Europe 2006; Statewatch 2006; Rosenbloom 1996; International Gay and Lesbian Human Rights Commission 1996; The Association of LAMDA groups 1994). For example just recently Poland, Latvia and Lithuania have all legislated to ban same sex unions. 6



265

Finally, the article examines the role that the European Parliament has had (and is currently having) on the evolution of sexual orientation discrimination law and more broadly gay and lesbian rights. While the European Commission and Council of Ministers hold the main autonomy in terms of law-making powers, they have been continually influenced by the European Parliament in this process. Indeed, a historical look at the slow process in developing anti-discrimination law shows that it has been the actions of the European Parliament that have created the main impetus for the promotion and protection of gay and lesbian rights. 7

ACKNOWLEDGING SEXUAL ORIENTATION DISCRIMINATION

The EU has generally been reticent in entering into law and policy issues that affect gay men and lesbians (Bell 2002, ch 4). In 1998 the ECJ in the case of Grant v. South- West Trains8 stated that, 'Community law as it stands at present does not cover discrimination based on sexual orientation'.9 The reasoning behind this statement was that protection from sexual orientation discrimination was outside 'Community competence'. 10 The issue of Community competence in regards to sexual orientation discrimination has arisen various times before. In 1983, after several motions from within and outside the European Parliament a report was prepared detailing the discriminatory situation that gay men and lesbians live in throughout Europe. 11 The subsequent debate was acrimonious revealing deeply embedded cultural and moral attitudes which were difficult to challenge (Bell 2002, 90). 12 Some abstained from voting on the Resolution that followed the debate stating that it exceeded Community competence. 13 Notwithstanding the issue of competence the Resolution still called for the introduction of sexual discrimination laws including sexual orientation 14 and despite some fierce opposition was passed by 114 votes for to 45 against. 15

Unsurprisingly, the proposals were not implemented by the Council of Ministers. Yet, the European Parliament did not rest on the issue. Again in 1989 during the negotiation over the terms of the Social Charter, the European Parliament argued for the inclusion of sexual orientation. Again this failed. Finally, two years later in 1991 harassment on the grounds of sexual orientation was included in the Commission's 1991 Code of Practice on Sexual Harassment. 16 However, as soft law the Code had no binding effect on Member States, but could be used as a guide only for those States wishing to change national laws in this area.

During the early 1990s the gay and lesbian rights movement gained significant momentum (Cruikshank 1992). In turn, lobbying



266

by pressure groups saw the initiation of national legislation introducing anti-discrimination laws and the repealing of laws which had criminalised 'homosexual sexual activity' (Bell 2002, 91 ).

In 1994 the Roth Report was introduced to the European Parliament proposing legal reform to end all forms of discrimination in criminal, civil, contract and commerciallaw. 17 The Report caused much controversy, deeply dividing left and right wing factions of the Parliament. Right wing politicians expressed grave concern that the European Parliament was again acting outside its legal competence. However, underlying much of the opposition was a moral debate largely based on religious attitudes (Bell 2002, 104--105). Pope John Paul II publicly criticised the Resolution stating that the Parliament was requesting the legitimisation of 'moral disorder' (Bell 2002, 105). 18

Nevertheless, the strong opposition voiced by right wing parties and religious groups to the Report did not prevent the Resolution on Equal Rights for Homosexuals and Lesbians in the European Community from passing through Parliament. 19 The Commission, however, did not share the Parliament's views and rejected the Resolution as being well beyond its legal and political competence (Millan 1994).

Although attempts to include sexual orientation by the European Parliament had hit several brick walls it had set in motion the idea that the EU could legislate in the area of sexual orientation discrimination. The European Parliament had used its voice to bring the issue into the political arena, forcing Member States and the law-making bodies of the EU to rethink their position on sexual orientation. Essentially, the political climate on gay and lesbian issues gradually started to change within the EU.20 This was compounded by the fact that a larger social project had begun to emerge within the Union going beyond the traditional economic scope of the founding Treaty (Nielsen 1998). By the mid-1990s the emerging social project combined with the gay and lesbian movement and changing national laws meant that the EU was now amenable to changing European law (Nielsen 1998).

TOWARDS SEXUAL ORIENTATION DISCRIMINATION LAW: THE INTRODUCTION OF ARTICLE 13

By 1996 the 'Dublin Draft' of the amending Treaty had put in place anti-discrimination provisions which included sexual orientation. Despite the continued reservations of some countries, one year later the European Council welcomed the general outline of the draft of the Treaty. The Treaty of Amsterdam was then completed in 1997 and later came into force in 1999.



267

Article 13 of the Treaty Establishing the European Community now states:

(1) Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.21

At the time, the introduction of the Article was to some extent unexpected (Bell 2002, 104). While gay and lesbian groups had been campaigning for greater protection from discrimination, there had been no specific lobbying by them to amend the Treaty in this particular way. Neither had the Article received specific backing from the Commission (Bell2002, 104). In fact, it had been the European Parliament alone which had heavily influenced the inclusion of sexual orientation within the Treaty.

PREVIOUS TEST CASES IN THE ECJ

Before the 1999 amendment came into force, two important test cases had been brought before the ECJ in an attempt to challenge domestic laws which had the effect of discrimination on the basis of 'sexuality'.22 In the case of P v. Sand Cornwall County Counci/ 23

a transsexual woman had been dismissed after she decided to undergo surgery to change her sex from male to female. The ECJ had to decide whether discrimination based on gender reassignment was the same as discrimination on the ground of sex contrary to Article 5(1) of the Equal Treatment Directive. The Court found that the dismissal of someone based on the reason that that person had gender reassignment was prohibited under the Directive. The Court held that, 'to tolerate such discrimination would be tantamount as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard'. 24 This wide interpretation of the Directive gave hope to many gay and lesbian groups campaigning for antidiscrimination laws which encompassed sexual orientation. To them, the Court had suggested that similar reasoning could be applied in cases involving sexual orientation discrimination (Bell 2002).

This very issue was tested two years later in the case of Grant v. South- West Trains. 25 Partners of employees at South-West Trains were entitled to free travel on the condition that the partner was of the opposite sex. Grant's partner was refused free travel because



268

she was of the same sex. She brought a case against SWT arguing that the refusal of her partner's free travel breached Article 119 of the Treaty.26 Grant argued that the refusal amounted to sexual discrimination as if she had been a man the benefit would have been granted.

The ECJ held that the refusal to give Grant's partner free travel did not breach Article 119. The Court's reasoning was that if a man had a same sex partner he too would have been refused free travel. Therefore it was not a matter of sex but of sexual orientation.

Thus, the case of Grant had the impact of separating sex discrimination from sexual orientation discrimination thought before to have possibly been included by P (for a detailed political analysis of these two cases see Beger 2000). In a further attempt to differentiate the two, the Court in Grant also drew attention to the future implementation of Article 13 stating that should sexual orientation discrimination be prohibited the EU would soon have the powers to create new Directives to do so. Shortly after this case the EU did just this.

THE FRAMEWORK EMPLOYMENT DIRECTIVE

In 2000 the EU Directive establishing a general framework for equal treatment in employment and occupation was adopted.27

The Directive subsequently came into operation on the 30th December 2003. The purpose of the Directive is to prohibit discrimination in employment on the grounds of religion or belief, disability, age or sexual orientation (Bell 2000).28 Since its adoption, the Directive has been used to prevent Member States (and public and private organisations within States) from discriminating against individuals when accessing employment, vocational training, working conditions including pay and dismissal, and membership of workers' organisations.29 Member States must transpose the Directive into national laws and provide domestic remedies for breaches.30

While the Directive has been a welcomed step forward in the protection of gay and lesbians from discrimination, it is open to much criticism.

Firstly, the Directive only includes discrimination in the area of employment. Thus it is restricted to one area of life. This can be compared with the Racial Equality Directive, 31 also made under Article 13 and implemented in the same year, which states that discrimination on the basis of race is prohibited and should apply to all persons in relation to 'social protection including social security and health care; social advantages; education; access to supply of



269

goods and services which are available to the public, including housing'. 32 There is no justification put forward by the EU as to why race discrimination applies to all these areas of life when sexual orientation (amongst others) applies only to employment. This puts people of sexual orientation at an obvious disadvantage in terms of legal protection. There is no reason why race should include education and health etc while sexual orientation discrimination is only prohibited in the work place. The Community clearly has competence in these other areas as both Directives were made under the same powers set out under Article 13.33 The issue of extending the areas of sexual orientation discrimination will be discussed further below.

One important shortcoming of the Directive is its failure to establish a body to promote non-discrimination and to preside over violations of the law. On the other hand the Racial Equality Directive, 34 states that Member States must establish a body to deal with claims of racial discrimination. It is unclear exactly why this body must deal with claims of racial discrimination but no other type. This anomaly also fails to recognise situations where people face multiple discrimination. Where, for example, someone is a victim of discrimination on the grounds of race and sexual orientation, the body will only hear evidence and be able to deal with the discrimination if it is based on race. This complicates things as the discrimination that someone faces maybe based on a hybrid of reasons which are intertwined. For example, an employer may hold prejudices towards both gay men and Asian people. However he/she tolerates gay men and Asian people in the work place and does not make decisions which discriminate against either. However, an Asian gay man applying for a position may, in the employer's mind, be too much to tolerate and discrimination ensues. In this scenario it is difficult to see what exactly motivated the discrimination; was it his racejethnicity or sexual orientation? If it is both the Directive does not provide a single solution to the problem. Claimants will have to apply to the body dealing with racial discrimination and then to the standard courts for any other discrimination. Not only is this legally ineffective and inefficient but it also has the effect of dividing discriminations. The question some will ask is: is discrimination based on race more serious than when based on sexual orientation? This is unsatisfactory and effectively discriminates against those who are looking for recourse because they have been discriminated against. It is one paradox a legal system needs to avoid.

If the EU is to tackle discrimination effectively, it must provide directives which have similar impacts on Member States' domestic laws. This requires anti-discrimination directives that will not only



270

impact on the same areas of life but provide equal protection in each area as well. For example, laws that prohibit discrimination in the accessing of education should not be based solely on the ground of race when it can equally be shown that education can be denied on the ground of disability, nationality, or sexual orientation. Equally it is unjustifiable that one ground should not be supported by a specialised body while others are not.35

EXCEPTIONS TO THE DIRECTIVE

Under Article 2(5) of the Framework Directive, provisions are made for exceptions. It states that, 'This Directive shall be without prejudice to measures laid down by law which, in a democratic society, are necessary for public security, for maintenance of public order and the prevention of criminal offences, for health protection and for the protection of the rights and freedoms of others'. The openness of this provision provides national law makers with ample autonomy to create discriminatory laws. For example, could 'public security' be used to prohibit gays and lesbians from joining police forces? It had previously been feared that it would be used to prohibit gays and lesbians from working in the armed forces (Bell 2002, 116). The European Court of Human Rights in LustigPrean and Bechett v. UK [ 1999] held that banning gays and lesbians in the armed forces violated article 8 of the Convention. 36 Yet, whether the ECJ will follow this decision in relation to EU antidiscrimination law remains to be seen.

More worrying is the exception of maintaining 'public order'. What this will encompass will ultimately be an interpretation matter for the ECJ to decipher. How widely they will do so is not entirely clear. It is feared however, that some Member States will use this exception to prevent gay men and lesbians from undertaking public duties. Indeed, as recently as 2005, Jaroslaw Kaczynski leader of the Law and Justice Party in Poland and the President's twin brother, called for a prohibition on any gay or lesbian person from teaching within a school (Human Rights Watch 2006). Discrimination in Poland in the public service is so rife that very few people reveal their sexual orientation (Rosenbloom 1996; The Association of LAMDA groups 1994). In fact, research carried out in Poland in the 1990s showed that gay teachers are particularly scared of revealing their sexuality through fear of harassment or of being sacked (Rosenbloom 1996).

The Directive also does not apply to state payments of social security. This is provided for under Recital 13 which states that the Directive does not apply to, 'any kind of payment by the State aimed



271

at providing access to employment or maintammg employment'. Therefore, government schemes aimed at getting people back to work will be immune from the Directive. It is not clearly understood why it is necessary for governments to be able to discriminate against gay men and lesbians when providing for employment opportunities. Even if there were some justifications relating to the need to increase unemployment rates these should not outweigh the need for individuals to be free from discrimination. This again demonstrates the Directive's limited nature.

INDIRECT DISCRIMINATION

The Framework Directive covers both direct and indirect discrimination (see Ellis 2005, ch 6). Therefore the scenario in Grant whereby Grant's partner was indirectly discriminated against should now fall under the Directive. However, indirect discrimination while prohibited can also be 'objectively justified' where it can be demonstrated that there is a 'legitimate aim and the means of achieving that are appropriate and necessary'.37 Therefore when employment benefits have been subject to the employee being married, Member States have argued that such benefits are objectively justified (see cases below). As benefits are denied to both married and unmarried heterosexual and homosexual couples, it is difficult to argue that there has been any direct discrimination. Yet not being able to marry places gay men and lesbians, indirectly, at a disadvantage in relation to employment and other benefits such as housing or inheritance. However, Recital 22 in the preamble states, 'this Directive is without prejudice to national laws on marital status and the benefits thereon'. This has provided a get out clause for many States from implementing same sex marriage or civil unions. 38 That said, many Member States have embraced same sex relationships39 and introduced domestic laws allowing gay and lesbian couples to enter into a legally recognised partnership (Wintemute and Andenaes).40

The changing ethos of the EU has allowed for the development of sexual orientation discrimination law.41 This has been bolstered by the European Parliament's commitment to tackling the issue. Article 13 is recognition of a social citizen model of social policy now emerging in the EU (Bell 2002, 121ff; Von Bagdandy 2005). Yet this does not mean that the EU can make laws on any social aspect of life it feels fit. As Article 5 of the Treaty states, 'The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein' i.e. the EU can only act within limited powers.



272

LIMITATIONS TO ARTICLE 13

So what powers does Article 13 leave the EU with in regards to protecting the rights of gay men and lesbians throughout Europe? The Article has no direct effect on Member States to take action against or prohibit discrimination (Bell 1999). Instead the Article simply allows the EU to make laws in regards to discrimination if it chooses to.42

The European Parliament's role in this area of law is limited to consultation. It is the Commission who must propose and then draft the legislation. It is then sent to Council of Ministers who must all agree to the laws before they become enforceable.43 This means that just one Member State could block any progress in creating anti-discrimination law.44 The ratification in 2002 of the Treaty of Nice made minor changes to this by creating qualified majority voting in the Council for 'soft law'.45 As mentioned above, such provisions can be used to persuade Member States to change their domestic laws but they are not binding and may be totally ignored. Unfortunately, the 2002 amendment excluded binding instruments such as Directives and Regulations. The fact that all Member States must agree to any new Directives which incorporate sexual orientation discrimination makes the introduction of new laws in this area extremely difficult.

In order to achieve qualified majority voting for Directives on sexual orientation in other areas of life outside of employment, Article 13 will have to be amended again. However, with the current conservative political climate in various Member States it is unlikely that all Member States will agree to such measures.

Article 13 is also subject to the following qualification, 'without prejudice to the other provisions of the Treaty and within the limits of the powers conferred by it upon the Community'. Depending how broadly the ECJ interprets these 'powers' will ultimately determine how far reaching Article 13 will allow the EU to go (Flynn 1999; Waddington 1999).

Bell notes that the term 'powers' may be construed in two different ways (Bell 2002, 133). Firstly, it could be read as being bound by limits of the powers of the Community, that is, that the powers of each European institution be respected (Bell 2002, 133). This might mean, for example, that the competence against racism under Article 29 of the Treaty is not encroached on by Article 13 (Bell 2002, 133). In this sense Article 13 would have broad scope as it could be used to enact any laws as long as they did not encroach upon other competences within the Treaty already prescribed.

However, 'powers' could refer to 'competence' itself. If this is the case the scope of Article 13 is reduced. Article 13 would be



273

bound by the existing competences of the EC Treaty. That means that those areas which fall outside the competence of the Community such as criminal proceedings (but which are still within the scope of the EU Treaty) would be outside the scope of Article 13.

Bell points to the fact that the word 'competence' has been used in other language versions of the Article as evidence that Article 13 is indeed limited by the competence of the Community rather than by the scope of the Treaty (Bell 2002, 133).

Thus it appears that Article 13 can only be used to prohibit discrimination within those areas for which the Community already has competence (Whittle 1998, 53). While the traditional competence of the Community is economic it is without doubt that the EU is moving further towards social policy as well. However, if Article 13 remains restricted to economic based discrimination, its capacity to impact on the EU's wider social project will be diminished.

However, this does not mean that directives made under Article 13 in regards to sexual orientation should be limited to employment. As stated above the Racial Equality Directive created under the same powers of Article 13 applies not only to employment but also to social security, health care, social advantages, education, and access to supply of goods and services which are available to the public including housing.46

While the Framework Directive does not include such provisions in relation to sexual orientation it may only be a matter of time before the law will progress that way.47 This will be either by introducing a new Directive for sexual orientation under similar terms to the Racial Equality Directive, by applying the term 'powers' as widely as the Community competence allows, or by eventually changing Article 13 within the Treaty to include other areas of life traditionally seen as outside the competence of the Community (Bell 2002, 148).48

There is some evidence that the ECJ is willing to interpret the meaning of Article 13 as enabling the EU to develop laws outside that of the traditional internal market. This development can be illustrated in R (on the application of Amicus-MSF section and others v. Secretary of State for Trade and Industry) .49 The UK Government had excluded pension rights for same sex couples under national laws (Sexual Orientation Regulations) pursuant to the Framework Employment Directive. The exclusion of pension rights was based on Recital 22 of the Directive (discussed above). 50

The Government argued that married couples had different legal rights to de facto couples who were heterosexual and therefore this was not sexual orientation discrimination. They argued that the Directive would only apply where pension rights were available to unmarried heterosexual couples but not gay and lesbian couples.



274

Further Recital 22 places pension rights paid in regards to marital status outside the competence of the Community. 51

The ECJ however, held that although family law falls outside the competence of the Community, it did not follow that discrimination based on marital status also does. 52 The Court continued by noting that there was no strength in the argument that there had been no discrimination as same sex couples could not obtain pension rights as they could not marry. However, the Court accepted that Recital 22 was intended to limit the Directive in this respect. Therefore the British national law did not amount to unlawful discrimination because it remained permissible to discriminate against all unmarried couples. 53 Although the Court rejected both claims it highlighted the potential for future development in family law by the ECJ.

THE IMPACT OF THE EUROPEAN CONVENTION OF HUMAN RIGHTS ON EU LAW: SUPPORTING EU ANTIDISCRIMINATION LAW?

It is not just Article 13 that impacts on anti-discrimination law in the EU. The European Convention on Human Rights (the Convention) has played a significant role in the development of gay and lesbian rights throughout Europe. Cases brought to the European Court of Human Rights (the Court) have frequently influenced decisions made in the ECJ.

Firstly, it should be noted that in order for new States to join the EU they must first ratify the Convention54 and join the Council of Europe. 55 In theory it is therefore necessary for all Member States to repeal any anti-gay/lesbian criminal laws, to create an equal age of consent for heterosexual, gay and lesbian sex and to prohibit discrimination on the ground of sexual orientation (Sander 2005).

The EU is committed to respecting the European Convention on Human Rights and the ECJ takes the Convention into account when interpreting EU law. 56 For example, in the case of KB57 the ECJ refers to the Court case Goodwin v. UK 58 as the basis for finding that discrimination in KB's case could not be permitted. 59

However, as the Convention is an international treaty it does not have primacy over State law which EC law does.60 That said, the Court has dealt with several prominent gay rights cases over the past ten years which have affected Member States of the EU. As mentioned briefly above, in Lustig-Prean and Bechett v. UK [ 1999 j61 the Court held that the exclusion of gays from the armed forces was a violation of the right to private life under Article 862

of the Convention. Importantly the Court also stated that sexual



275

orientation discrimination was just as serious as discrimination on the ground of race, religion or sex. 63 In the same year the Court in Salgueiro da Silva Mouta v. Portugal found that custody decisions that were in part based on the fact that one parent was gay or lesbian constituted unjustified discrimination on the basis of sexual orientation.64 The Court in this case held that discrimination on the basis of sexual orientation was a violation of a person's right to a private life.65 Two years earlier in Sutherland v. UK the Court found no justification for a higher age of consent for gay men compared with heterosexuals.66

In 2002, in the cases of Goodwin v. UK 67 and/. v. UK 68 the Court held that the right to marry69 was impaired when a transsexual person was not allowed to marry someone of their former sex. The Court in Goodwin reasoned that although Article 12 of the Convention refers to the right of a man and a woman to marry, such a right was not restricted to purely biological criteria. The argument that transsexuals are not deprived of the right to marry because they can still marry someone of the opposite biological sex was a fallacy. This is because they are, precluded by law from marrying the opposite sex to their adopted gender. Accordingly, the Court found that the 'very essence' of the right had been infringed. 70

In effect it can be asserted that the Court held that to marry someone of the same biological sex was a human right. Although the Court did not directly state that two people of the same biological sex and who are 'physically' the same71 could marry, it appeared to transcend that there would be little difference in terms of human rights. In other words, the Courts reasoning that the right to marry had been breached where a transsexual woman could not marry a man and would not wish to marry a female, is inextricably similar to stating that a lesbian could not marry another woman and would not wish to marry a men. The only real difference is genitalia. However, the importance of genitalia should not be the deciding issue over whether a person has the right to marry. The Court in Goodwin stated that in order to determine a person's sex for the law of marriage all relevant matters should be considered.72

Although these included the biological and physical characteristics of a person at birth they also included a 'person's life experiences ... self-perception as a man or a woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex re-assignment treatments the person has undergone and the consequences of such treatment; and the person's biological, psychological and physical characteristics at the time of the marriage'.

Certainly the psychological characteristics of a gay man or lesbian will mean that they will not wish to marry someone of the



276

opposite sex. The fact that sexual orientation precludes gay people from ever wanting to marry someone of the opposite biological sex should be seen in the same light as transsexual peoples' rights.

Importantly the Court in Goodwin also noted that Article 9 of the recently adopted Charter of Fundamental Rights of the European Union73 does not include the words men and women that Article 12 of the Convention does. 74 This infers that same sex couples should enjoy the right to marry.

While there have been various cases in the Court which support gay and lesbian human rights, Graupner points out that the Court, and national courts, have been inconsistent in this area (Graupner 2005, 121-122).

Recently, the issue of same sex partners' right to marry arose in the case of Wilkinson v. Kitzinger75 in the English and Welsh High Court. A female couple had married under British Colombian law in Canada. Wilkinson and her partner sought a declaration as to her marital status under the Family Law Act 1986 (UK). They argued that failure by both the Civil Partnership Act 2004 (UK) and the Matrimonial Causes Act 1973 (UK) to recognise same sex marriage violated their rights under the Human Rights Act 1998 (UK).76

The High Court dismissed the couple's claim noting that the claim related to an area of 'considerable social, political, and religious controversy, in respect of which there is no consensus across Europe'.77 The High Court continued by referring to the fact that the European Court of Human Rights has consistently declared itself to be 'slow to trespass on areas of social, political and religious controversy, where a wide variety of national and cultural traditions are in play and different political and legal choices have been made by the members of the Council of Europe'.78

Turning to the wording of Article 12 of the Convention the Court held that the right to marry was a right based in the 'traditional sense', namely as a marriage between a man and a woman which is defined and governed by nationallaws.79

The failure to recognise the status of the petitioner and her wife as being validly married therefore fell outside the ambit of the Convention. Further ' 1-~ difference in treatment based on sexual orientation could be justified. Therefore the difference between a civil partnership and marriage was based fairly on the fact that the 'majority of people, or ... governments ... Europe-wide regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit in which both maternal and paternal influences were available in respect of their nurture and upbringing'. 80



277

This reasoning does not appear to be wholly consistent with the rights of transsexuals to marry someone of the opposite biological sex which were upheld in Goodwin. As discussed above the right to marry in that case depended on a variety of criteria which needed to be assessed. The need for procreation and the development of children did not appear within the reasoning of the Court. If the case of Wilkinson is to be read consistently with Goodwin does it mean that only heterosexual and transsexual women or men are able to enter into a 'valued' and 'respectable' partnership whereby they will be encouraged to be monogamous and 'procreate'?

The Court in Wilkinson stated that the extension of the right to marry to include transsexuals, while moving towards a more modern conception of marriage, would not relate to same sex partners having the same right. 81 However, the Court failed to adequately justify the difference between same sex and transsexual citizen's right to marry. The Court instead found that Goodwin had created no more than an incremental step in broadening the scope of Article 12 of the convention and did not go as far as to include same sex couples. However, the Court is far from compelling in its reasoning. The Court does refer to decision of Goodwin, which had held that biological sex alone could not be used to determine a legal definition of marriage and in particular could not determine the ability to found a family, as good law.82 Yet, earlier in the decision the Court states that 'family life' under the Convention should not encompass 'adult homosexuals'.83 This means that on the one hand, according to Goodwin, family life should not be judged solely on the basis of biological sex, yet on the other hand, according to Wilkinson, partners who are of the same sex could not possibly constitute family life, but only because they are of the same biological sex. 84

The fact that gay couples can enter into monogamous relationships that are valued and respected appears to be insignificant. As to the issue of procreation, neither gay men nor transsexuals will be able to achieve this biological feat. However, lesbians can and do have children. Many other gay couples adopt and bring healthy and well developed children into the world (Patterson 1995; Perrin & The Committee on Psychosocial Aspects of Child and Family Health 2002; Ferrero et al. 2002). Many more heterosexual couples, unable to conceive, also adopt children. The importance of procreation should therefore not determine a person's right to marry. It would be an outrageous proposition to say that heterosexual couples who can not procreate should not be able to marry. Yet, this outrage does not appear to transfer when judging the same rights for gay and lesbian couples.

Another example of the courts' inconsistent legal interpretation of the Convention can be found in a Limine85 in 2000. The committee



278

rejected the application of a gay and lesbian group to the Court who had been denied registration of association on the basis that the group did not exclude membership of persons under the age of 18, as prescribed by national law. This was compared with other groups which were not bound by such a restriction. The Committee denied the action on the basis that the restriction was prescribed under national law which was pursuant to a legitimate aim of protecting morals and the rights and freedoms of others. Apparently, this was proportionate to these aims. 86

Again in Austria, in 2003, a gay man was sentenced to one year imprisonment for consensual caressing of a 14 year old male.87 This conduct would have been legal had the 14 year old been female or had the sexual acts been between two females. The man was taken to an institute for mentally ill offenders and was not released for 17 months. Once released, he was placed on five years probation. An appeal against this would have been futile as the national court held no discretion over the condition. Also any appeal would have had the effect of suspending the sentence and the offender would have been placed back into the institute until the appeal would have been decided. When sent to the Court however, the Limine rejected his application merely stating that he had not exhausted all his national remedies despite the fact that these were futile and somewhat pernicious. 88 The Limine decision, in fact, conflicted with earlier decisions made by the Court regarding sexual orientation discrimination and was a setback for anti-gay and lesbian discrimination. 89

While the age of consent set at 14 may be considered by many as low for both heterosexuals and homosexuals, the example is used to demonstrate the huge disparity in treatment between the two.

TRANSPOSING EUROPEAN CONVENTION LAW

The fact that Member States of the EU must join the Convention has also caused some concerns when transposing these laws into national law.90 Many have rushed through legislation abolishing the criminalisation of certain homosexual sex acts and created new laws to prevent discrimination in the area of employment.91 In 1998 the European Parliament passed a resolution declaring that it would not give consent to any joining country that, 'through its legislation and policies, violates the human rights of lesbians and gays'.92 The European Parliament went on to publicly 'out' Austria, Bulgaria, Estonia, Hungary, Lithuania, Romania and Cyprus as unfairly treating gays and lesbians. Laws which discriminated against gays and lesbians were then repealed by Lithuania (2000),



279

Estonia (2001), Romania (2001), Cyprus (2002) and Austria, Hungary and Bulgaria (2002) (Sander 2005, 5). Without this international pressure it would have been highly unlikely that any changes would have been made.

The issue that some Member States are not effectively implementing the European Court of Human Rights' decisions into national laws can be seen, for example, in Austria where in 2002 changes were made to national laws abolishing its discriminatory age of consent. The Austrian Government introduced new laws criminalising sexual relations with all persons under a certain age. However the provision which is supposed to refer to both genders had been disproportionately used against male to male relations (Graupner 2005, 126). The European Parliament acted to prevent this situation by calling upon the Austrian Government to end the discrimination currently faced by gay men.93

However, four years later in 2006 the Austrian Government has again been condemned by the Court in the case of R. H. v. Austria for its years of criminal persecution towards gay and bisexual men.94

A Vienna Court had previously ordered the detention on remand of a gay man on suspicion of having committed homosexual acts with adolescents contrary to Article 209 of the Austrian Criminal Code. The Court held that there had again been a violation of Article 14 taken in conjunction with Article 8 of the Convention due to the fact that sex had occurred between two consenting males. If this had taken place between a heterosexual male and female of the same ages the acts would not have been illegal. This demonstrates that gay men and lesbians in Austria are still suffering from State based discrimination despite changes made to Austrian law post 2000 and decisions handed down from the Court. Indeed, there are currently over 1500 gay men and lesbians still registered as 'sex offenders' in Austria.95

In summation, while the development of sexual orientation discrimination law within the Court has been appreciable, it has also at times been largely inconsistent. As Graupner states, 'the protection of sexual rights has been considerable. However freedom to express sexuality often only coincides with public attitudes and has not really exceeded social development'. (Graupner 2005, 125).

PROBLEMS WITH ENSURING THAT MEMBER STATES COMBAT HOMOPHOBIA

Notwithstanding the impact (or lack of) that the Convention has on EU law and Member States, it is also important to focus on the current problems facing the EU in ensuring that Member States comply with the current Framework Directive.



280

In its Green Paper 'Equality and Non-Discrimination in an Enlarged European Union',96 the Commission stated that, 'Enlargement should be used as an incentive for all Member States to set up their efforts to address the challenges faced by minorities' .97 The Commission notes that it is concerned that many Member States have not made the 'best use' of the three years (now five) following the adoption of the Directives.98

The Paper also states that in some countries legislative amendments had not even been tabled.99 Out of the 25 Member States only 18 have included sexual orientation as a ground of discrimination in their domestic legislation. 100 The Green Paper also reports evidence that where some Member States have legislated to implement the Directives, the provisions have not fully been transposed. 101 This means that some EU countries are providing greater legal protection against sexual orientation discrimination compared with others. The Commission must ensure that the correct transposition is taking place in each country and take action where it finds that it is not. 102

THE 2006 EUROPEAN RESOLUTION

With disparities in European Court of Human Rights' decisions, the Commission failing to extend anti-discrimination laws into other areas of life outside of employment, and some States failing to transpose the Directive or European Court of Human Rights decisions effectively, the European Parliament has again voiced its concern over the issue of sexual orientation discrimination within Europe. On the 18th of January 2006 the European Parliament convened to discuss the issue of 'homophobia within Europe'. 103 The Resolution was tabled by five of the largest political groups in the European Parliament including both right and left wing parties. 104 The Resolution had been a product of evidence that many gay men and lesbian citizens in certain Member States were suffering from prejudice and discrimination. Among some of the concerning events reported by the media and non government organisations had been: the banning of gay pride marches in Poland (Human Rights Watch 2006); 105

failure by police to provide adequate protection for pride marchers and in some cases police forcefully breaking up peaceful demonstrations (Human Rights Watch 2006); hate remarks by political leaders (Poland); violent attacks by homophobic groups (Poland); and legislation in Latvia, Lithuania and Poland to change their constitutions (or laws) to explicitly prohibit same sex legal unions.l06

The Resolution called on Member States to implement national laws to prohibit discrimination on the ground of sexual orientation in various areas of life. 107 It also calls upon the Commission to



281

either, create new Directives under Article 13 to increase the scope of areas where discrimination will be prohibited or to implement a general framework covering all grounds of discrimination in all sectors. 108 The Resolution also urges the Commission to ensure that Member States have transposed and are correctly implementing the Framework Directive and to start infringement proceedings against any Member States that fail to do so. 109 Further, the Resolution urges the Commission to use criminal penalties in cases involving the violation of directives based on Article 13. 110

So what does the Resolution mean for gay and lesbian rights throughout Europe? The discussion, press coverage and signed Resolution have great symbolic importance. The fact that Parliament has made such a strong stand against homophobia demonstrates the cultural evolution within the EU which has occurred over the past twenty years. If nothing else, the message sent to Member States opposing gay rights is that they are now within the minority for the first time. 111

Yet symbolism may be where the Resolution's influence stops. Like Resolutions in the past, it may signal future changes in EU law on sexual orientation discrimination, but it may equally be dismissed by the Commission. As discussed above, the European Parliament has limited powers to ensure that EU law is changed. This power lies in the hands of the Commission and/or national legislatures. It is too early to tell with certainty what impact the Resolution will have on the Commission or nations such as Poland, Lithuania and Latvia. However with these countries standing strong on the issue it is unlikely national laws will be changed just yet. 112

The current President of the European Commission, Franco Frattini of Italy will be left with the decision to take appropriate steps forward with regards to EU law. This also looks unlikely when reflection is given to his statements made to the European Parliament on the Resolution. Mr Frattini stated that the Commission would continue to 'fight against homophobia and discrimination based on sexual orientation' but he offered no evidence that he would legislate to extend EU law (Frattini 2006). Instead, he argued that Article 13 has already been used to implement new laws prohibiting discrimination on the ground of sexual orientation, and that the Charter of Fundamental Rights also excludes discrimination on the basis of sexual orientation. 113 He explained that the Resolution would therefore be unnecessary. 114 With regards to infringement proceedings, Frattini stated that the, 'Commission can open a possible infringement procedure against a Member State, but it can only do so if a violation of fundamental rights has been observed with regard to the application of Community law'. The point is that the EU is limited in many respects regarding



282

discrimination against gay and lesbians due to Community competence. However, as discussed, the issue of competence is far from clear. The European Parliament has, however, made it clear that it believes it is within the Commission's competence to create new laws prohibiting sexual orientation discrimination.

Since the passage of the Resolution, various Catholic leaders and right wing politicians have criticised it as again going beyond the competence of the European Parliament. Aldo Giordano, the secretary general of the Council of European Bishops' Conferences told Vatican radio that, 'such resolutions risk the delegitimising of the European Parliament. It should be clear that certain subjects, especially those relating to the family, are not within the direct competence of the EU but are the recognised competence of nations'. (Deutsche Welle 2006).

There are two clear arguments coming from such a statement. Firstly, that combating homophobia is outside the competence of both the European Parliament and EU law and that such an issue is down to domestic policy and legislation. At its roots this goes back to the argument over whether the EU has become a social as well as economic entity. While many conservative politicians insist that the EU is an economic body, common sense now tells us that the EU is increasingly becoming a socially motivated entity. It appears that, just as with past Resolutions, critics of the Resolution are hiding behind the issue of competence when it is clear that their main concerns with sexual orientation are not ones of equality but of religious and moral issues about 'promoting' homosexuality. liS

Michael Cashman emphasised in the European Parliament that it must be made clear that the issue is about, 'giving homosexuals the equal rights and equality that others take for granted' (Cashman 2006). The appreciation that sexual orientation discrimination is about fundamental human rights (and not about promoting certain lifestyles) means that laws protecting gay men and lesbians from discrimination falls within the ambit of Community competence. The Resolution makes this clear and should therefore be seriously considered by the Commission and Member States still opposing gay and lesbian rights.

A FUTURE LEGAL BASIS FOR SEXUAL ORIENTATION DISCRIMINATION LAW IN EUROPE?

The Charter of Fundamental Rights and a new Constitution

Finally, it is important to refer to the EU Charter of Fundamental Rights which was proclaimed by the European Parliament, Commission and Council in Nice in 2000. 116 The Charter sets out in a single



283

text for the first time in EU history, the whole range of civil, political, social and economic rights of EU citizens and residents. The Charter will place into the realm ofEU law many of the principles enunciated under the European Convention on Human Rights. 117 In regards to sexual orientation discrimination it is Article 21 which prohibits such discrimination:

Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

The Charter applies to all EU institutions and Member States when applying EU law. However, it must be understood that the Charter does not increase the scope of EU law, nor does it give extra powers to the EU to create new laws in the area of anti-discrimination. The Charter acts to ensure that laws made by the EU and Member States (in regards to EU law) are made within the terms of the Charter i.e. that they respect the fundamental rights provided under the Charter. The Charter does not therefore increase the scope of anti-discrimination law in regards to sexual orientation.

While the Charter does not bring many major 'new' rights to EU citizens, it does commit the EU to combating all forms of discrimination and makes equality one of the cornerstones of the European Union legal framework. The Charter of Fundamental Rights, does, therefore, provide support to the argument that new directives are needed to combat sexual orientation discrimination.

This will be bolstered further if the Treaty establishing a Constitution for Europe is ratified by all Member States. Importantly, the Constitution will incorporate the Charter of Fundamental Rights of the European Union. As a result Article 21 will be found in the EU Treaty and therefore apply more directly to EU law. However, Article 11-51 (1) and (2) also states that the Charter does not increase the scope of EU law nor the competences or powers of it. 118 However, it should be noted that the Charter prescribes the 'right to marry'; as family law this is something traditionally seen to be outside Community competence. Yet, this right must be reflected in EU law and applied by the ECJ (Morris 2005).

When passed, the Constitution will make it a task of the EU to combat discrimination. Article 3(3) prescribes that:

It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of children's rights. 119

Currently the European Constitution remains unratified. It was defeated in France and the Netherlands by public referendum in



284

2005 and was subsequently buried when Tony Blair, the then President of the EU, declared that the Constitution would be taken off the agenda for the time being.

The new Constitution, if ever ratified, should provide for a new rights based legal basis for sexual orientation discrimination. However, with this falling firmly on the backburner for the foreseeable future one can not rely on its ratification to solve the problems currently facing Europe in this area. If the Charter is finally placed within the European Constitution in years to come it may give new life to an equality based movement within EU law. In this respect it may help to influence the Commission to include sexual orientation discrimination in similar areas to those which are currently included under the Race Equality Directive.

CONCLUSION

Article 13 of the treaty has been a welcomed step forward in developing the scope of EU competence in the area of sexual orientation discrimination. For all of its shortcomings, it does provide for an avenue for future development in this area of law.

However, while many interest groups, academics and now the European Parliament have called for further directives prohibiting sexual orientation discrimination in various areas of life it appears that the Commission is not yet willing to test EU competence in these areas just yet. 120

This means that discrimination on the grounds of sexual orientation is restricted by the Framework Directive to employment. This is insufficient and does not ensure that gay and lesbian European citizens are protected from discrimination in areas such as health, education and social security as are those protected under the Race Equality Directive.

The fact that race is differentiated to sexual orientation discrimination also creates a separate system of law between different types of discrimination. This ultimately has the effect of making some grounds of discrimination more worthy than others. EU law must avoid this if it is to pursue its goals of 'equality' and 'non-discrimination' as set out under the Charter of Fundamental Rights.

Without these changes sexual orientation discrimination will continue to be legal in many countries in Europe (if not all). It is evident that discrimination in some Member States will be worse than others. It is therefore vital that in the future the EU provides consistent anti-discrimination laws in this area which all Member States must transpose into national law correctly.

Indeed, the new Resolution on Homophobia signed this year by the European Parliament is attestation that sexual orientation



285

discrimination is still of grave concern throughout many European States. The EU must tackle this head on by providing new Directives and pushing open conservative boundaries of EU competence.

NOTES

* Lecturer in Law, Faculty of Law, University of New South Wales. 1 European Parliament Resolution on Homophobia in Europe RC-B6-

0025/2006 18.01.2006. 2 The terms gay men, gayjs, and lesbianjs is preferred to 'homosexual'

which carries negative connotations through its use by right wing and religious commentators. These terms will be used by the author when appropriate but the term homosexual may still be used in some legal contexts.

3 'Council Directive establishing a general framework for equal treatment in employment and occupation' 2000/78/EC OJ L 303, 02/12/2000 P. 0016--0022. The Directive can be found at < http://europa.eu.int/ eurlexjlexjLex UriServ /Lex U riServ.do?uri = CELEX:32000L0078:EN: HTML > at 1st August 2006. The Directive will be referred to as the 'Framework Directive' as it has become commonly known.

4 European Parliament, Resolution on the Fundamental Rights in the EU (2002) A5-281/2003 04.09.2003 para 79; European Parliament Resolution on Homophobia in Europe RC-B6-0025/2006 18.01.2006.

5 Article 13 of the Treaty Establishing the European Community was introduced by the Treaty of Maastricht 2001.

6 See endnote 40 below. 7 Resolution on Sexual Discrimination in the Workplace [1984] OJ;

Resolution on the Respect of Human Rights within the European Union in 1997 (A4-0468/98; par. 10), 17.12.1998 European Parliament: Urgency Resolution on the Rights of Lesbians and Gays in the European Union (B4-0824, 0852/98; par. J), 17.09.1998; Resolution on the Respect of Human Rights within the European Union in 1998/99 (A5-0050/00; par. 76, 77), 16.03.2000; at <http:/ jwww. europarl.eu.int/activitiesjexpert.do?language = en&redirection > at 20th July 2006; Cl04/46. European Parliament, Resolution on the Fundamental Rights in the EU (2002) A5-281/2003 04.09.2003 para 79; European Parliament Resolution on Homophobia in Europe RC-B6-0025/2006 18.01.2006.

8 [1998] ECR 1-621. 9 Ibid. at 651.

10 Ibid. at para. 45. 11 Report for the Committee on Social Affairs and Employment on

Sexual Discrimination at the Workplace [Squarcialupi] Al-1358/83. 12 See Debates of European Parliament No. 1-311/12 13 March 1984.

Taken from Bell 2002, 90.



286

13 For example the Irish Party Fine Gael, 'The EEC has no competence to decide the moral attitudes of society or the pattern of criminal laws in member states' Ryan, Debates of the European Parliament No. 1-311/71, 13th March 1984. Taken from Bell 2002, 90.

14 Paragraph 5 of the Resolution urging the Commission to ensure that, 'no cases arise in the Member States of discrimination against homosexuals with regard to access to employment and dismissals'. Resolution on Sexual Discrimination in the Workplace [1984] OJ C104/46.

15 Resolution on Sexual Discrimination in the Workplace [1984] OJ C104/46.

16 Commission Recommendation on the dignity of woman and men at work, adopted 27th November 1991 [1992] OJ L49/l. Unlike regulations and directives this is soft law and provides member states with a guide to follow only. However, it did show that the changing attitude towards sexual orientation discrimination held by the Commission.

17 See <http:/ fwww .france.qrd.org/texts/roth.html > at 18th July 2006. 18 G. Perico, 'II Parlamento Europeo ei diritti degli omosessuali' (1994)

9/10 Aggiornamenti Sociali 593 at 601. Cited in Bell, 2002, 105. 19 159 votes for 96 against. [1994] OJ C61/40. 20 This change was of course equally influenced by identity politics, the

media and education. 21 A consolidated version of The Treaty Establishing the European Com

munity can be found at <http:/ jeuropa.eu.intjeur-lexjenjtreatiesjdat/ C_2002325EN.00330l.html> at 18th July 2006.

22 The term sexuality is broader than sexual orientation including gender identity issues.

23 C-13/94 ECR [1996] 1-2143. 24 Ibid. para. 22. 25 C-249/96 [1998] ECR 1-621. 26 Prohibiting discrimination based on sex. 27 Formally named, 'Council Directive establishing a general framework

for equal treatment in employment and occupation' 2000/78/EC OJ L 303, 02/12/2000 P. 0016--0022. The Directive can be found at <http:// europa. eu.int/ eurlexjlexjLex U riServ /Lex U riServ. do ?uri = CELEX: 32000L0078:EN:HTML > at 18th July 2006. The Directive will be referred to as the 'Framework Directive' as it has become commonly known.

28 Article 1. 29 Article 3. 30 Article 9. 31 2000/43/EC. The Directive can be found at <http:/ jeuropa.eu.int/

eur-lexjpri/enjojjdat/2000/1_180/1_18020000719en00220026.pdf> at 18th July 2006.

32 2000/43/EC, Article 3(l)(e)-(h). At <http:/ jeuropa.eu.intjeur-lexjpri/ enjojjdat/2000/1_180/1_18020000719en00220026.pdf> at 25th July 2006.

33 This is discussed further below under Limitations to Article 13. 34 Ibid.



287

35 For an overview of all anti-discrimination laws in Europe including the Framework Directive see, Ellis (2005), 'sexual orientation' section is at 36.

36 (No. 31417/96; No. 3237797) judg. 27.09.1999, 25.07.2000. 37 Article 2(2)(b)(i). 38 Such as Poland, Latvia and Lithuania who have all legislated to ban

same sex unions. 39 Though largely influenced by cases in the European Court of Human

Rights. 40 Countries that allow same sex marriage in EU include: Netherlands

(2001), Belgium (2003), Spain (2005). Countries who have same sex civil unions include: France and Denmark (1989), Sweden (1994), Hungary (1996), Finland (2000), Germany (2001), Portugal (2001), Croatia (2003) Luxembourg (2004) Andorra (2005); United Kingdom (2005), the Czech Republic (2006) and Slovenia (2006). Countries where same sex unions are recognised in part of the country: Italy (8 regions) (2004). Countries that have not provided civil unions but have some legal recognition: Austria (unregistered co habitation rights). Countries with no legal rights at all for same sex couples: Estonia, Greece, Ireland (though the Civil Partnership Bill has been initiated Dec. 2005), Malta, Slovakia. Countries who have actively legislated to ban same sex marriage include: Latvia (2005), Lithuania (2005), Poland (2005). See further <http:/ jwww.ilga-europe.org/ europejissues/marriage_and_partnershipjsame_sex_marriage_and_ partnership_ country_ by_ country> for the status of other countries outside Europe, at 18th July 2006.

41 For a discussion on what sexual orientation means and whether this should include gender identity and sexual behaviour see Graupner 2005.

42 For example, in 2000 the ECJ was asked to annul the Tobacco Advertising Directive on the ground of a lack of competence. The Court did so on the ground that the Directive exceeded the EU's law making powers under the internal market provisions set out under Article 95. Case C-376/98 Germany v. Parliament and Council [2000] ECR 1-8419.

43 Article 13(1) requires unanimity in the Council before a directive can be passed.

44 Something highly likely from Countries such as Poland, Lithuania and Latvia: see concerns made public by the International Lesbian Gay Association - Europe 2006; Human Rights Watch 2006; and Statewatch 2006.

45 Such as Codes of Practice. 46 2000/43/EC, Article 3(1)(e)-(h). 47 The latest Resolution on Homophobia has made it clear that new

directives are needed in this area. European Parliament Resolution on Homophobia in Europe RC-B6-0025/2006 18.01.2006.

48 See Bell, above n 9 at 144. 49 [2004] IRLR 430 QBD.



288

50 I.e. the Directive is without prejudice to national laws, 'on marital status and the benefits dependent thereon'.

51 [2004] IRLR 430 QBD at para. 144. 52 Ibid. at para. 156. 53 Ibid. at para. 169. The national laws were also challenged within the

ECJ as breaching the European Convention on Human Rights Articles 8 and 14. The ECJ again rejected this argument stating that same sex couples were not the same as heterosexual married couples.

54 See Resolution on the Respect of Human Rights within the European Union in 1997 ((A4-0468/98; par. 10), 17.12.1998 European Parliament: Urgency Resolution on the Rights of Lesbians and Gays in the European Union (B4-0824, 0852/98; par. J), 17.09.1998; Resolution on the Respect of Human Rights within the European Union in 1998/99 (A5-0050/00; par. 76, 77), 16.03.2000; at <http:/ jwww. europarl.eu.intjactivitiesjexpert.do?language = en&redirection > at 20th July 2006.

55 See Parliamentary Assembly of the Council of Europe: Written Declaration No. 227, Feb. 1993; Halonen-Resolution (Order 488 [1993]); Opinion No. 176 (1993); Opinion 221 (2000); <http:jjassembly. coe.int > at 20th July 2006. The Council of Europe should not be confused with the Council of Ministers in the EU. These are separate bodies.

56 See KB v. National Health Services Pensions Agency C-117/01 [2004] IRLR 240; Carpenter v. Secretary of State for the Home Department C-60/2000 [2002] ELR I-006279.

57 Ibid. 58 [2002] 35 EHRR 18 (No. 28957 /95). 59 The case involved a female nurse who had been denied a widow's

pension paid on the death of a spouse. Her long term partner was a transsexual man. The Court held that restricting benefits to married couples was not sex discrimination but noted that the fact that the couple were unable to marry or that the male transsexual was unable to change his birth certificate amounted to a breach of human rights as was found in the European Court of Human Rights case of Goodwin v. UK.

60 European Communities Act 1972 s 2(1) & (4). In the UK the Human Rights Act 1998 requires that the Convention's rights have effect in UK law.

61 (No. 31417/96; No. 3237797) judg. 27.09.1999, 25.07. 2000. 62 '1) Everyone has the right to respect for his private and family life, his

home and his correspondence. 2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

63 Lustig-Prean and Bechett v. UK [1999] (No. 31417/96; No. 3237797) judg. 27.09.1999, 25.07. 2000. This supports the argument that there is



289

no basis for having differences between the Framework Directive and the Racial Equality Directive as discussed above.

64 Salgueiro da Silva Mouta v. Portugal (33290/96) judg 21.12.1999. 65 Article 8. Salgueiro da Silva Mouta v. Portugal [1999 j ECHR 176

(33290/96) judg. 21.12.1999 para. 136. 66 Sutherland v. UK ( 1997) (25185/94) Dec. 01.07.1997. Six years after

the European Court of Human Rights had first found different ages of consent to be a breach of the Convention two new cases emerged. In the cases of L. and V. v. Austria ( 2003) (No. 39392/98 and No. 39829/98) and S.L. v. Austria ( 2003) (No. 45330/99) the European Court of Human Rights held that Austria's differing age of consent for heterosexuals and gay men violated the protections against discrimination under Article 14 of the Convention. 'The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status'. In 2005 the Mobility Directive 2004/58/EC was introduced. It requires that same sex partners are recognised as 'family members' where the partners have registered their relationship. Although the Directive falls short of prescribing that same sex couples should have the right to register their relationship as a legal partnership it the first time that same sex partners have gained legal recognition in EU law.

67 (2002) 35 E.H.R.R. 18. 68 (2003) 36 E.H.R.R. 53. 69 Article 12 '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.'

70 See Goodwin v. UK (2002) 35 E.H.R.R. 18 para. 101. 71 I.e. they have the same genitalia. 72 Goodwin v. UK (2002) 35 E.H.R.R. 18 para. 101. 73 See section below. 74 (No. 28957/95) judg. 11.07.2002 at para. 98: (No. 25680/94) judg.

11.07.2002 at para. 78. See also Graupner 2005, 121. 75 [2006) EWHC 2022. 76 Schedule 1 Part I Articles 8, 12 and 14. 77 EWHC 2022 at para. 44. 78 Ibid. 79 Ibid. at para. 55. 80 Ibid. at para. 118. 81 Ibid. at para. 61 & 62. 82 Ibid. at para. 98. 83 Ibid, referring to Baroness Hale in Mata Estevez v. Spain Reports of

Judgments and Decisions 2001 -VI, 311 at para. 66. 84 Note also that the Mobility Directive 2004/58/EC which requires that

same sex partners are recognised as 'family members'. 85 A three judge ruling committee determining the admissibility of an

application to the European Court of Human Rights.



290

86 Szivarvany Tarsulas a Melegels jogaiest Geza JUHASZ and Balazs PALFY v. Hungary (35419/97) judg. 05.12.2000. Cited in Graupner, above n 59 at 122.

87 August Sulzer v. Austria (72165/01) Dec. 29.04.2003. Cited in Graupner 2005, 124.

88 Ibid. 89 In other cases the Court has found violations of the Convention. For

example in 2005, in a similar case also from Austria the Court found that the State had violated Articles 8 and 14 of the Convention. Wolfmeyer v. Austria (5263/03) May 26.05.2005. Article 209 of the Austrian Criminal Code stated that, 'A male person who after attaining the age of 19 fornicates with a person of the same sex who has attained the age of 14 but not the age of 18 shall be sentenced to imprisonment for between six months and five years.' The provision is aimed at homosexual sexual activity only. As heterosexual or lesbian couples were not subject to the same provisions the Court held that the Code had breached Article 8 (right to privacy) and 14 (enjoyment of Convention rights without discrimination) of the Convention. See further the cases of: Woditschka and Wilfling v. Austria (69756/01 and 6306/02) Oct 21.10.2004; H.G. and G.B. v. Austria (11084/02 and 15306/02) June 02.06.2005; Ladner v. Austria (18297 /03) Feb 03.02.2005.

90 European Parliament Resolution on Homophobia in Europe RC-B6-0025/2006 18.01.2006; Green Paper, 'Equality and Non-Discrimination in an Enlarged European Union' (2004) European Commission.

91 Ibid. 92 European Parliament Resolution on Homophobia in Europe RC-B6-

0025/2006 18.01.2006. 93 European Parliament, Resolution on the Fundamental Rights in the

EU (2002) A5-281/2003 04.09.2003 para. 79. 94 7336/03 [2006] ECHR 61. 95 See <http:/ jwww.rklambda.at/e/index.htm > at 20th July 2006. 96 Green Paper, 'Equality and Non-Discrimination in an Enlarged

European Union' (2004) European Commission. See also Waddington, L. (2004) 'Taking Stock and Looking Forward' 33 Industrial Law Journal367, for a detailed summary of the Green Paper.

97 Ibid. at 20. 98 Ibid. 21. Racial Equality Directive and the Framework Directive. 99 Ibid. 21.

100 See < www.RKLambda.at > at 20th July 2006. 101 Ibid. 21. 102 The failure by States to correctly transpose Directives into national

law may also lead to individuals asserting their rights in national court against the State (direct effect). See for example, Van Duyn v. Home Office [1975] 2 W.L.R 760.

103 European Parliament Resolution on Homophobia in Europe RC-B6- . 0025/2006 18.01.2006.

104 Having been orchestrated by the Europarliament's Intergroup on Gay and Lesbian Rights.



291

105 President Lech Kaczynski banned gay pride marches during his term as mayor of Warsaw. See also < www.dw-world.de > at 22nd July 2006.

106 See generally endnote 7 and Debates of the European Parliament, 16th Jan 2006 at <http://www.europarl.eu.int/omk/sipade3?PUBREF=-// EP //TEXT+ CRE + 20060116 +ITEM -014 +DOC+ XML + VO//EN& LEVEL= 3&NA V = S&L =EN> at 22nd July 2006. Research into sexual orientation discrimination in Lithuania, Latvia and Estonia has shown that most gay and lesbian citizens suffer from serious forms of discrimination, Platovas et al. 2002).

107 European Parliament Resolution on Homophobia in Europe RC-B6-0025/2006 18.01.2006.

108 Ibid. point 4. 109 Ibid. at point 7. 110 Ibid. at point 9. It also goes on to call on Member States to enact

legislation to end discrimination faced by same sex partners in areas of inheritance property, tenancies, pensions, tax, social security etc, point 11.

111 The Parliamentary debates on the Resolution show that an overwhelming majority ofEU States are in favour of protecting citizens from sexual orientation discrimination. Debates of the European Parliament, 16th Jan 2006 at < http://www.europarl.eu.int/omk/sipade3?PUBREF = -//EP// TEXT+ CRE + 20060116 + ITEM-014 +DOC+ XML + VO//EN& LEVEL= 3&NAV = S&L =EN> at22ndJuly2006.

112 Ibid. 113 Ibid. 114 Ibid. 115 Something which is definitely outside the competence of the Commu-

nity. 116 Proclaimed on 7th Dec 2000 under the Treaty of Nice 2001. 117 Article 52 and Preamble. 118 Ibid. 119 Found at < http://european-convention.eu.int/docs/Treatyfcv00850.

en03.pdf> at 22nd July 2006. 120 Green Paper, 'Equality and Non-Discrimination in an Enlarged Eur

opean Union' (2004) European Commission at 15.

REFERENCES

Association of LAMDA groups (1994) Report on Discrimination on the basis of Sexual Orientation in Poland.

Beger, N. (2000) 'Queer Readings of Europe: Gender Identity, Sexual Orientation and the (Im)potency of Rights Politics at the European Court of Justice', 9 Social and Legal Studies 249.

Bell, M. (1999) 'The new Article 13 EC Treaty: a sound basis for European anti-discrimination law?' 6(1) Maastricht Journal of European and Comparative Law 5.



292

Bell, M. (2000) 'Article 13 EC: the European Commission's anti-discrimination proposals' 29(1) Industrial Law Journal79.

Bell, M. (2002) Anti-Discrimination law and the European Union. Cashman, M. Debates of the European Parliament, 16th Jan 2006 at

<http:/ jwww.europarl.eu.int/omk/sipade3?PUBREF =-I /EP //TEXT+ CRE + 20060116 + ITEM-014 +DOC+ XML + VO/ /EN&LEVEL = 3& NAV=S&L=EN> at 22nd July 2006.

Cruikshank, M. (1992) The Gay and Lesbian Liberation Movement. Deutsche Welle European Parliamentarians Stand Up Against Homophobia

(2006) <http:/ jwww .dw-world.defdw jarticle/0,2144, 1874852,00.html > at 22nd July 2006.

Ellis, E. (2005) EU Anti-Discrimination Law. Ferrero, E., Freker, J. and Foster, T. (2002) Too high a price: The case

against restricting gay parenting. New York: ACLU Lesbian and Gay Rights Project. Found at <http:/ fwww.lethimstay.comjpdfsjgayadop tionbook.pdf> at 25th October 2006.

Flynn, L. (1999) 'The implications of Article 13 EC- after Amsterdam, will some forms of discrimination be more equal than others?' 36 Melbourne Law Review 1127.

Frattini, F. Debates ofthe European Parliament, 16th Jan 2006 at <http:// www.europarl.eu.int/omk/sipade3?PUBREF =-I /EP/ /TEXT+ CRE + 20060116+ ITEM-014+ DOC+ XML+ VO//EN&LEVEL= 3&NAV = S&L =EN> at 22nd July 2006.

Graupner, H. (2005) 'Sexuality and Human Rights in Europe' 48 Journal of Homosexuality 107.

Human Rights Watch, Letter to Polish President Lech Kaczynski <http:// hrw.orgjenglishfdocs/2006/02/15/poland12679.htm > at 13th July 2006.

International Lesbian Gay Association- Europe <http:/ /www.ilga-europe. org/ > at 22nd July 2006.

International Lesbian Gay Association- Europe at <http:/ fwww .ilgaeurope. orgjeuropejguidejcountry _by_ country /poland/concerns_ over _increased_ and_state_supported_homophobia_in_poland > at 18th July 2006.

Millan, B. Debates of the European Parliament, No. 3-442/43, 7 February 1994.

Morris, A. (2005) 'Constitutionalising Equality in the European Union: Tolerance and Hierarchies' 8 International Journal of Discrimination and the Law 33.

Nielsen, R. (1998) Social Dimension of the European Union. Patterson, C. J. (1995) Lesbian and gay parenting: A resource for psychol

ogists. Perrin, E. C. and The Committee on Psychosocial Aspects of Child and

Family Health (2002) 'Technical report: Co-parent or second-parent adoption by same-sex parents' 109(2) Pediatrics 341.

Platovas, E. et al. (2002) Sexual Orientation Discrimination in Lithuania, Latvia and Estonia. Open Society Institute and Kimeta Society.

Rosenbloom, R. (1996) International Gay and Lesbian Human Rights Commission Unspoken Rules - Sexual Orientation and Women's Human Rights.

Sander, D. (2005) Human Rights and Sexual Orientation in International Law.



293

Statewatch at <http:/ /database.statewatch.orgjsearchdisplay.asp?search field= 123&noofresults = 1 OO&resultsperpage = I O&display = 123& searchtype = l&searchtext =homophobia+ poland> at 18th July 2006.

Stubb, A. on behalf of the PPE-DE Group, European Parliament Debate, 16th January 2006.

Von Bogdandy, A. (2005) 'The European Constitution and European Identity: Text and Subtext of the Treaty Establishing a Constitution for Europe' 3 International Journal of Constitutional Law 295.

Waddington, L. (1999) 'Testing the limits of the EC Treaty article on nondiscrimination' 28 International Law Journal 133.

Whittle, R. (1998) 'Disability discrimination and the Amsterdam Treaty' 23 European Law Review 50.

Wintemute, R. and Andenaes, M. (eds) (2001) Legal recognition of same sex partnerships- a study of national, European and international law.



Sexual orientation discrimination in the European Union: the framework directive and the continuing...

Documents

Transcript of Sexual orientation discrimination in the European Union: the framework directive and the continuing...