Homophobia and Discrimination on

ief overview is given here in order to provide a background to the remaining issues
discussed in this section. Three principal means of protection against discrimination
based on transgenderism can be found among EU Member States:
Firstly, discrimination on the basis of transgenderism may be interpreted to fall within
discrimination on the basis of sex within instruments prohibiting discrimination between
men <strong>and</strong> women. Thirteen EU Member States fall within this category (Belgium,
Denmark, France, Irel<strong>and</strong>, Italy, Latvia, 388 The Netherl<strong>and</strong>s, 389 Austria, 390 Pol<strong>and</strong>,
Slovakia, 391 Finl<strong>and</strong>, Sweden, United Kingdom). 392
Secondly, it may be interpreted to fall within discrimination on the basis of sexual
orientation. Two Member States fall within this category (Germany, 393 Spain).
Thirdly, it may be interpreted to fall within a general prohibition on discrimination, with no
express articulation of sex or sexual orientation as the prohibited grounds. The result is a
situation of legal uncertainty as to the precise protection of transgender persons from
discrimination. Eleven Member States fall within this category (Bulgaria, Czech Republic,
Estonia, Greece, Cyprus, Lithuania, Luxembourg, Malta, Portugal, Romania, <strong>and</strong>
Slovenia).
Finally, Hungary, addresses discrimination based on transgenderism on the grounds of
sexual identity under Act on Equal Treatment. 394
388 Latvia/Latvijas Republikas Augstākās tiesas Senāta Administratīvo lietu departaments/A42229505 SKA –
5/2008 (14.01.2008).
389 Leeuwarden Court of Appeal, 13.01.1995, NJ 1995 nr. 243 <strong>and</strong>, for example, ETC Opinions 1998-12 <strong>and</strong>
2000-73
390 Austria / Erläuterungen [Explanatory Notes]/ RV 415dB XXIII. GP, available at:
http://www.parlament.gv.at/PG/DE/XXIII/I/I_00415/fname_096505.pdf (08.01.2008) (explanations
appended to the government bill for the implementation of Council Directive 2004/113/EC prohibiting
discrimination between men <strong>and</strong> women in access to <strong>and</strong> supply of goods <strong>and</strong> services).
391 Art. 6 (3)a. Slovakia/ Antidiskriminačný Zákon 365/2004 (20.05.2004)
392 In Great Britain, the relevant provisions are contained in the Sex <strong>Discrimination</strong> Act 1975 (SDA), as
amended by the Sex <strong>Discrimination</strong> (Gender Reassignment) Regulations 1999. In Northern Irel<strong>and</strong>,
protection is conferred by the Sex <strong>Discrimination</strong> (NI) Order 1976 (SDO), as amended by the Sex
<strong>Discrimination</strong> (Gender Reassignment) Regulations (NI) 1999.
In the UK also, where a person can obtain a Gender Recognition Certificate under the Gender
Recognition Act 2004 (GRA) it would not be lawful to discriminate other than on grounds that would
legally apply to anyone else of his or her acquired gender. (There is one exception: it is possible for an
organised religion to discriminate where there are genuine religious reasons to refuse to employ a
transsexual person even if the person has a Gender Recognition Certificate).
393 See the Explanatory Memor<strong>and</strong>um to the General Law on Equal Treatment: Bundestag, publication no.
16/1780, p. 31
394 Transgender people may be protected from discrimination as such, when they are treated differently than
other persons of the same gender as the acquired gender. In Hungary, the Act on Equal Treatment
(Hungary/2003 évi CXXV Törvény/28.12.2003) includes sexual identity as one of the grounds of
discrimination (Article 8-n), Hungary/2003 évi CXXV Törvény/28.12.2003)
Part II - The Social Situation
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