It is a well-known fact that the quality of your life greatly depends on where you live, but also on where you come from, and the fate of LGBTI people in Europe today is no exception to the rule. Looking back in the rearview-mirror at the journey until now, things have got obviously easier for the LGBTI community. However, in the current state of economic hardship, not least because of the pandemic, which has brought on a surge of closedmindedness and a rise of populism, the impetus that has carried the LGBTI cause so far seems now to be holding its breath in some Member States and has even stopped breathing in others.
For LGBTI people, living in the EU is not a game of Russian roulette, at least not officially, as is the case in other parts of the world where sexual orientation is a question of life or death. However, depending on the EU Member State you live in, not everything is hunky-dory and your daily life can be either smooth or a real struggle. According to the latest annual review of ILGA-Europe, the European branch of the International Lesbian, Gay, Bisexual, Trans and Intersex Association, things are not exactly as they seem.
No matter the progress already made, the LGBTI community is still living in a complex and critical time, with some Member States backlashing at some of LGBTI rights or others still barely recognising their existence. Even in Member States with more progressive and open legislations, life is not always picture perfect. What is really missing is a wider recognition of LGBTI rights, translated into European legislation, aimed at addressing the over-fragmentation of provisions amongst and even between Member States, and providing a solid and full protection for their LGBTI citizens.
According to ILGA Europe, hate speech proliferates in the open in Member States such as Bulgaria, Cyprus, the Czech Republic, Greece and even Spain, without being sanctioned. The same source notes a growing tendency to translate words into action, with physical attacks on the rise and demonstrations against Pride occasions and LGBTI events. Germany, Sweden and even France have expressed a will to address this global increase in hatred but binding laws are missing and, in countries where legislation is already in place, a lack of follow-up is sorely felt.
ILGA-Europe also reveals the huge gap that exists between different Member States' recognition of LGBTI rights and subsequent movement of LGBTI persons to Member States that will guarantee them a better quality of life. One just has to look at the results of the ILGA Europe 2020 rainbow map to realise how nationality makes all the difference. It is sometimes hard to comprehend how for example LGBTI Belgian legislation can cohabit with the Romanian one in the same union.
While the full protection of LGBTI family rights is still very much needed in Estonia, Croatia and the Czech Republic, a growing number of Member States are opening their legislation to it. The bodily integrity of intersex people is also looking up, with UN recommendations to countries like Austria, Belgium and Italy to end automatic surgeries on intersex children before they are able to decide for themselves. Finally yet importantly, the discussions about third gender markers are still in a very early stage, but the simple fact that they are now on the map is already a victory as such.
— ILGA-Europe (@ILGAEurope) May 14, 2020
A minus sign
In recent months, we have witnessed an alarming backlash in LGBTI rights in two countries in particular. Firstly Hungary, where its Prime Minister Victor Orbán has taken advantage of the COVID-19 sanitary crisis to install a state of emergency for an indefinite period, thus investing his government with absolute powers. Under the pretext of fighting the pandemic, the Hungarian government is now undermining the rule of law by amending the civil registration law of intersex persons. The amended law stipulates that "sex at birth" can no longer be changeable by the person during his or her life. With nothing to stop Orban, who knows how far this rewriting of Hungarian LGBTI rights will go…
The abuse and discrimination of LGBTI people is also on a worrying rise in Poland where, since March 2019, so called ‟LGBT ideology-free zones” have gangrened a third of the country, reaching 100 municipalities by spring 2020. Accompanied by the passing of anti-LGBT resolutions, the ‟zones” have become unwelcoming places to live for the Polish LGBT community (see our previous detailed article about it).
The question remains: are these two examples the start of a domino effect in the European Union or just two distressing and isolated cases? In its report, ILGA-Europe also wonders about the life realities of LGBTI people in other, generally LGBTI-open Member States and how much bullying, abuse and discrimination stays unseen or unreported.
The situations in Hungary and Poland beg the question of European sanctions. In December 2019, the European Parliament adopted a resolution to assess the situation in Poland with respect to the violation of the EU Treaties and fundamental freedoms. It also challenged the Council of the European Union to finally adopt the EU's "Anti-Discrimination Directive”, which has been blocked for over 10 years now.
In search of the right formula
In February 2020, Helena Dalli, the European Commissioner for Equality, made a speech in front of the LGBTI Intergroup of the European Parliament. She committed herself to publishing an LGBTI Equality Strategy by the end of 2020, but its launch has been unfortunately delayed due to the corona pandemic and therefore, the much-awaited solid framework for “The EU and LGBTI Rights in 2020-2024” is still up in the air.
Without a concrete LGBTI Strategy, the non-binding measures already in place are not sufficient to empower the EU to take determinate action. Even the binding nature of the EU Charter of Fundamental Rights is not enough to stop multiple discriminations suffered by LGBTI people and in any case, the Charter leaves the definition of family to the Member States. LGBTI persons must be protected in all Member States with a recognised horizontal status whether it is in their social, medical or mobility rights. No discrimination or abuse should go unpunished and, as a Union, we must work together to ensure a constant vigilance so that no populist party can take advantage of a crisis situation and use LGBTI people as a scapegoat to serve their political agenda. Legal gender recognition should be a self-determination process in which no government should interfere.
On 2 June 2020, the European Commission nevertheless addressed a letter to the Polish provinces of Podkarpackie, Świętokrzyskie, Malopolskie, Lublin and Łódź regarding their anti-LGBT resolutions and their homophobic ‟Local Government Charter on the Rights of the Family”. In its letter, the Commission called upon the 5 provinces to further inspect if these initiatives are not in breach of Article 2 of the EU Treaty (which relates among other elements to the respect of human rights, including the ones of minorities) and of the EU fundamental rights due to their discriminatory nature. The incentive for such further examination of the above mentioned initiatives is not just an ethical one: non-respect of human dignity, equality and the rule of law simply translates to illegibility for European funds. This is an excellent formula for those Member States or regions that apply a democracy ‟à la carte”. The PES Group in the European Committee of the Regions salutes the European Commission’s initiative because it gives a clear warning that the EU will not finance homophobic legislations nor discriminatory situations and it sets boundaries where they are very much needed.
Bottom-up or top-down?
There is no European legislation yet to make sure that all EU Member States grant the same rights to all LGBTI citizens. Most of them are still coming up to speed with LGBTI legislation and some have even deviated from European democracy. Where a guaranty has not yet been found at European or national level, it is often cities that make things happen for LGBTI people.
Berlin has created an ‟Action Plan against Homophobia and Transphobia” to inter alia combat discrimination, violence and hate crimes in the capital.
Rotterdam has developed an ‟LGBT emancipation policy” to make sure it is a safe city for its LGBT community.
Bologna signed a ‟Collaboration Pact for the promotion and protection of the rights of people and the LGBTQI community” with 14 associations.
Paris has an ‟Action Plan against discriminations including explicitly LGBTphobia” and the main goal of the Brussels regional government’s LGBT policy is to improve the equal opportunities of lesbians, gays and transgender who live in the region.
There is still a long way to go before our 27 Member States effectively and fully stop discrimination on the grounds of sexual orientation or gender. However, the example of cities is perhaps an example to follow. Positive action should start at grassroots level, in the same way that some cities have temporarily interrupted their partnership agreements with the Polish provinces implementing the LGBT-free zones. It is time we looked at the LGBTI cause also upside down: after all, solidarity with LGBTI people starts at local level, where they actually live.