The EU is the result of European integration started after World War II to prevent conflicts between European countries by closer economic integration and the creation of a free internal market without national boundaries. Although the EU was originally primarily concerned with economic affairs, its aims and powers are now expanding to include fundamental rights and freedoms.
Find out how lesbians, gay men and bisexuals used European Union (EU) legislation to protect their rights.
Until 1997, when EU member states adopted a new Treaty specifically authorising EU institutions to tackle sexual orientation discrimination, there was a debate over whether there was a duty on the EU to offer lesbians, gay men and bisexuals protection against discrimination.
Before 1997 none of the provisions of EU law specifically mentioned lgb people or sexuality. There was much debate about which principles or provisions of EU law could be interpreted or implied to indicate that discrimination against lesbians, gay men and bisexuals violated EU principles and law and that the EU should tackle such forms of discrimination. Lesbians, gay men and bisexuals in the EU explored various possible options within EU law to seek legal recognition and protection.
Some advocates of lesbian, gay and bisexual rights pointed to a number of legally non-binding resolutions of the European Parliament, which condemned discrimination against lesbians, gay men and bisexuals and called upon the EU member states to end such discrimination and to provide lesbians, gay men and bisexuals with legal equality. However these resolutions were not legally binding and lesbians, gay men and bisexuals in the EU member states could not rely on their protection. At the same time these resolutions of the European Parliament had significant political importance and encouraged other EU institutions and EU member states to address the issue of lesbian, gay and bisexual rights.
One of the most significant European Parliament documents is the 1994 Resolution on equal rights for homosexuals and lesbians in the EC. In this Resolution, the European Parliament called upon EU member states to provide lesbians and gay men with legal protection against discrimination and to introduce partnership registration schemes.
Other advocates of lesbian, gay and bisexual rights explored the sex discrimination provisions of EU law. The EU has well-established legislation providing protection against sex discrimination. In 1998, the European Court declared that EU sex equality legislation did not protect against discrimination on the grounds of sexual orientation. This was in the case of Lisa Grant v South West Trains supported by Stonewall. Lisa worked for the South West Trains company which provided benefits to its employees in the form of free travel for employees’ spouses and unmarried cohabitants who had been together for at least two years. South West Trains denied such benefits to Lisa’s female partner of many years. Lisa claimed she had been discriminated against simply because of her sex - if she had been a man, and not a woman living with another woman, and applied for the benefits, she would have received them.
The Court of Justice disagreed and said it was a case of sexual orientation discrimination and not sex discrimination. The Court stated that “in the present state of the law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriage or stable relationships outside marriage between persons of the opposite sex.”
Lesbians, gay men and bisexuals throughout the EU also explored one of the EU's main principles, freedom of movement, in an attempt to guarantee their rights. According to this principle, citizens of EU member states should be free to travel and seek employment in other EU member states and be joined by members of their family. However, EU member states provide different levels of recognition of lesbian, gay and bisexual rights and as a consequence lesbians, gay men and bisexuals from one EU member state enjoying certain legal recognition cannot expect to enjoy the same recognition in other states. For example, a same-sex couple who have registered their partnership in a country recognising such registration and enjoying certain benefits will not necessarily be recognised or enjoy the same benefits in another country which does not provide such recognition.
Unfortunately lesbians, gay men and bisexuals have so far not won this argument. In the case of D v Council (1999) the Court of Justice declared that partnerships between persons of the same sex registered in one of the EU member states cannot be comparable to marriage between a woman and a man. In this case a Swedish man, who registered a partnership with his male partner in Sweden, moved to work for the EU in Brussels. Under Swedish law the couple enjoyed most of the rights of marriage. However, he was refused family benefits for his male partner by his new employer in Brussels.
The situation has significantly improved since 1997, when the heads of all EU member states agreed on a new Treaty of Amsterdam, which specifically allowed EU institutions to combat sexual orientation discrimination. Article 13 of the new Treaty of Amsterdam states:
Without prejudice to the other provisions of this Treaty and with 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 or sexual orientation.
The Treaty of Amsterdam came into force on 1 May 1999. Although Article 13 creates an option, rather than an obligation, for EU institutions to tackle sexual orientation discrimination, it has ended on-going debate over whether the EU has a competence to act in this area.
In 2000, a new EU Directive was agreed requiring all EU member states to ban sexual orientation discrimination, as well as other forms of discrimination listed in Article 13, in employment by the end of 2003.