Homophobia and Discrimination on Grounds of Sexual Orientation ...

<strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of Sexual Orientation in the EU Member StatesPart I – Legal Analysis1.1. The hierarchy of grounds under the equalitydirectivesThe hierarchy of grounds seemingly established under the two Equality Directivesadopted in 2000 has been contested since the adoption of these instruments. 52 In thiscontext two differences between the two directives can be noted: First, discrimination ongrounds of race <strong>and</strong> ethnic origin is prohibited in a wider number of fields th<strong>and</strong>iscrimination on the other grounds listed in Article 13 EC. Second, only the RacialEquality Directive provides for the establishment by the Member States of an equalitybody for the promotion of equal treatment of all persons without discrimination on thegrounds of racial or ethnic origin (Art. 13 of the Racial Equality Directive).The fact that certain grounds of discrimination benefit from a better protection thanothers does not constitute per se a violation of the international law of human rights.Indeed, the idea that certain grounds are more ‘suspect’ than others, justifying a stricterdegree of scrutiny of differences in treatment based on such characteristics, is familiar ininternational jurisprudence. However, even though the idea of a ‘hierarchy of grounds’ isnot per se prohibited under international law, differences in treatment between differentcategories as to the degree of protection they are afforded can only be acceptable if theyare reasonably <strong>and</strong> objectively justified, which requires that they pursue a legitimate aim<strong>and</strong> that a reasonable relationship of proportionality exists between the means employed<strong>and</strong> the aim sought. 53 In addition, <strong>and</strong> even more importantly, ‘sexual orientation’, justlike ‘gender identity’, 54 clearly have acquired the status of ‘suspect grounds’ ininternational human rights law – <strong>and</strong> therefore, if any hierarchy is to exist, these grounds49UK/ Employment Equality (Sexual Orientation) Regulations (Northern Irel<strong>and</strong>) 2003, Statutory Rules ofNorthern Irel<strong>and</strong> 2003 No. 497 (02.12.2003), available at:http://www.opsi.gov.uk/sr/sr2003/20030497.htm (15.02.2008).50UK/ Equality Act (Sexual Orientation) Regulations 2007 Statutory Instrument 2007 No. 1263(30.04.2007), available at: http://www.opsi.gov.uk/si/si2007/uksi_20071263_en_1 (15.02.2008).51The Equality Act (Sexual Orientation) (Amendment No 2) Regulations (Northern Irel<strong>and</strong>) 2007, StatutoryRules of Northern Irel<strong>and</strong> 2006 No. 439 (01.06.2007), available at:http://www.opsi.gov.uk/sr/sr2007/nisr_20070261_en_1 (15.02.2008). See below for discussion of thesuccessful challenge to part of these Regulations in Re Christian Institute <strong>and</strong> others’ application forjudicial review [2008] Industrial Relations Law Reports (IRLR) 36.52See recently the call of ILGA to the President of the European Commission, Mr Barroso: ‘Put an end tohierarchy of anti-discrimination protections in EU!’, 19.4.2008,www.socialplatform.org/News.asp?news=17201 (last consulted on 1 May 2008)53Eur. Ct. HR (GC), Burden v. the United Kingdom, Appl. No. 13378/05, judgment of 29 April 2008, para.60.54Following the introduction of the Yogyakarta Principles, sexual orientation is understood to refer to ‘eachperson’s capacity for profound emotional, affectional <strong>and</strong> sexual attraction to, <strong>and</strong> intimate <strong>and</strong> sexualrelations with, individuals of a different gender or the same gender or more than one gender’, whilegender identity is understood to refer to ‘each person’s deeply felt internal <strong>and</strong> individual experience ofgender, which may or may not correspond with the sex assigned at birth, including the personal senseof the body (which may involve, if freely chosen, modification of bodily appearance or function bymedical, surgical or other means) <strong>and</strong> other expressions of gender, including dress, speech <strong>and</strong>mannerisms’.35