Homophobia and Discrimination on Grounds of Sexual Orientation ...

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European Union Agency for Fundamental Rights10.6. The protection of transgender personsCharter of Fundamental Rights (Article 21)Any discrimination based on any ground such as sex, race, colour, ethnic orsocial origin, genetic features, language, religion or belief, political or anyother opinion, membership of a national minority, property, birth, disability,age or sexual orientation shall be prohibited.Transgendered people should be protected from discrimination in the European Union.The European Court of Justice considers that the instruments implementing the principleof equal treatment between men <strong>and</strong> women should be interpreted in order to afford aprotection against discrimination on grounds of transgender.Thirteen EU Member States treat discrimination on grounds of transgender as a form ofsex discrimination (BE, DK, FR, IE, IT, LV, NL, AT, PL, FI, SE, SK, UK), <strong>and</strong> even inthese States, this is generally a matter of practice of the anti-discrimination bodies orcourts rather than an explicit stipulation of legislation. In 2 Member States (DE, ES)discrimination on grounds of transgender is treated as sexual orientation discrimination.In 11 other Member States (BG, CZ, EE, EL, CY, LT, LU, MT, PT, RO, SI) discriminationon grounds of transgender is treated neither as sex discrimination nor as sexualorientation, resulting in a situation of legal uncertainty. In Hungary, the Act on EqualTreatment includes sexual identity as one of the grounds of discrimination.The European Convention on Human Rights guarantees the legal recognition of the newgender acquired followed a gender reassignment medical operation; in addition itrecognises the right of the transgendered person to marry a person of the genderopposite to that of the acquired gender. Although four EU Member States (IE, LV, LU,MT) still seem not to comply fully with this requirement, the situation in the other MemberStates is generally satisfactory. But the approaches vary. Whereas in a few MemberStates, there is no requirement to undergo hormonal treatment or surgery of any kind inorder to obtain an official recognition of gender reassignment, in other Member States,the official recognition of a new gender is possible only following a medically supervisedprocess of gender reassignment sometimes requiring, as a separate specific condition,that the person concerned is no longer capable to beget children in accordance withhis/her former sex, <strong>and</strong> sometimes requiring surgery <strong>and</strong> not merely hormonal treatment.In certain Member States the official recognition of gender reassignment requires thatthe person concerned is not married or that the marriage be dissolved. This obliges theindividual to have to choose between either remaining married or undergoing a change162
<strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of Sexual Orientation in the EU Member StatesPart I – Legal Analysiswhich will reconcile his/her biological <strong>and</strong> social sex with his/her psychological sex: it hastherefore been proposed that the requirement of being unmarried or divorced as aprerequisite for authorisation for sex change should be ab<strong>and</strong>oned. Finally, the ability tochange one’s forename in order to manifest the gender reassignment is recognisedunder different procedures. In most Member States, changing names (acquiring a nameindicative of another gender than the gender at birth) is a procedure available only inexceptional circumstances, generally conditional upon medical testimony that the genderreassignment has taken place, or upon an official recognition or gender reassignment,whether or not following a medical procedure.10.7. The lack of statistics <strong>and</strong> data for the development ofanti-discrimination policiesCharter of Fundamental Rights (Article 8)Everyone has the right to the protection of personal data concerninghim or her.The paucity of relevant data across the EU, which could inform about discrimination ongrounds of sexual orientation is striking. This could be due, in part, to the fact that sexualorientation is still an emerging issue, largely ignored in public debate <strong>and</strong> public policiesuntil the beginning of this decade; in part, it is attributable to misunderst<strong>and</strong>ings aboutthe requirements of data protection legislation, particularly as embodied in the EU DataProtection Directive 95/46/EC <strong>and</strong> in the domestic laws implementing this directive. Art 8of this directive defines personal data concerning sex life as sensitive data. Thisprovision is the basis of legal uncertainty concerning the lawfulness of the collection ofstatistics informing about discrimination on the grounds of sexual orientation.163
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