Fragmented and Fragile: LGBTQIA+ Rights across the EU

The news last month that Greece had become the first majority Christian-Orthodox country to legalise same-sex marriage was met with delight. The development takes the number of EU Member States where equal marriage is permitted to 15.

In the same month, however, the Czech parliament rejected a motion to allow same-sex marriage. While the parliament did grant same-sex couples the right to register a civil union, marriage and several other rights were struck down.

In an EU where freedom from discrimination is enshrined in Article 21 of the Charter of Fundamental Rights and Article 10 of the Treaty on the Functioning of the European Union (TFEU), it seems peculiar that one Member State can uphold a right while another can reject that same right all in the same month. Yet this kind of push-pull, piecemeal progress is characteristic of today’s Europe, a continent seemingly divided, especially on LGBTQIA+ rights.

Almost all of the countries where equal marriage is now legal are in western Europe, and citizen support for LGBTQIA+ rights follows a similar pattern. On average, 69% of Europeans polled by Eurobarometer believed that queer people should have the same rights as straight people. However, while 95% of Dutch people thought so, just 21% of Bulgarians did.

In the majority of eastern European countries, LGBTQIA+ rights remain limited. Poland, for example, currently meets only 15% of the rights criteria set by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), though it is hoped that, with the election of Donald Tusk last year, queer rights in Poland will rapidly improve.

More than marriage

While the Greek decision is culturally significant and certainly welcome, in order to thrive, LGBTQIA+ people need more than simply the opportunity to marry. To build their families, LGBTQIA+ people need to be able to legally adopt children and to have their parenthood recognised. Failing to do so leaves parents in legal and economic limbo and contravenes the rights of their children.

Transgender and non-binary people, meanwhile, need to be able to have their gender legally recognised in a simple administrative process that does not require them to undergo medical intervention against their will. In Member States where some form of legal gender recognition is currently available, all but nine, including Germany and the Netherlands, require a mental health diagnosis. Five require a trans person to undergo sterilisation.

Young people need comprehensive sex and relationships education that addresses sexuality, gender and respect, not just biology and pregnancy-avoidance. The highly contested 2021 ban in Hungary on LGBTQIA+ content in schools continues to rob children and teenagers of the opportunity to learn about themselves and others. 

And all LGBTQIA+ people need to be free from the torturous practice of ‘conversion therapy’.

Volt advocates for all of these rights in its 2024 European Parliament electoral programme.

LGBTQIA+ rights: legal routes and roadblocks

While Volt will always welcome positive legislative change in the domain of human rights, given the current manner in which EU law is made, passing such legislation is likely to be difficult, if not impossible.

In 2008, the European Commission issued a proposal for a horizontal anti-discrimination Directive, which would harmonise EU anti-discrimination law on the grounds of religion, belief, disability, age or sexual orientation. More than 15 years later, this Directive remains unpassed as it requires all Member States to vote unanimously in its favour. With several Member State governments still hostile to LGBTQIA+ rights, such legislation is unlikely to progress under the current legislative architecture.

Volt calls for a reform of EU decision-making, so that procedures that currently require unanimity are instead addressed through qualified majority voting (QMV). This would make a single country or minority of countries unable to veto key legislation. But until that change is made (a significant challenge in itself), our efforts might be better spent pressing authorities to uphold already-established EU legislation and European Court of Justice case law.

One of the most interesting battlegrounds for LGBTQIA+ rights presently is that of family law. While family law is generally a matter for individual Member States, the right of free movement (Article 21(1) TFEU) offers legal protection so that family relationships are recognised for the purpose of that freedom. For example, the union of a same-sex couple married in Sweden must be recognised for the purpose of free movement in a country where same-sex marriage is still not permitted, and both parties must be accorded their associated rights, such as residency entitlement for a spouse who is a third country national. 

In 2018, the ECJ found that Romania had infringed the right of residency of the American spouse of a Romanian citizen by denying him a residence permit. To date, Romania has still not granted residency, which is not altogether surprising given that, while ECJ and European Court of Human Rights (ECtHR) judgements are binding, Member States often do not comply with them. For ECtHR judgements, there is no effective mechanism to ensure compliance. In the case of a Member State disregarding an ECJ judgement, the Commission can initiate infringement proceedings but is often reluctant to do so. Volt finds this unacceptable and demands that Parliament increase its pressure on the Commission to uphold its responsibility as ‘Guardian of the Treaties’.

Meanwhile, a new proposal to create an EU Certificate of Parenthood, which would provide legal certainty in cross-border situations and would have especially important implications for LGBTQIA+ parents, is currently under consideration. In cases where same-sex parenthood has already been established in a Member State, it would have to be recognised in all Member States. The procedure again requires unanimity, meaning it is potentially doomed unless a case can be made for the use of the enhanced cooperation mechanism, which has previously been used successfully in family law matters.

In practical terms, focusing on legal routes to protect LGBTQIA+ rights may be helpful. But to truly make Europe a place where everyone can thrive, we need to tackle the institutional roadblocks that currently enable conservative and populist forces to dictate the agenda when it comes to human rights.

Article by Kate Fistric