Homophobia and Discrimination on Grounds of Sexual Orientation ...

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European Union Agency for Fundamental Rightsreluctant to identify themselves as such. This issue, however, will be scrutinised in theupcoming sociological analysis that forms the second part of this report.The report also points to the need to clarify the treatment of same-sex couples inconformity with international human rights law for rights <strong>and</strong> benefits provided forspouses <strong>and</strong> partners under the EU’s Free Movement Directive, the Family ReunificationDirective <strong>and</strong> the Qualification Directive.Furthermore, the report finds that the issue of transgendered persons, who are alsovictims of discrimination <strong>and</strong> homophobia, is adequately addressed in only 12 EUMember States that treat discrimination on grounds of transgender as a form of sexdiscrimination. This is generally a matter of practice of the anti-discrimination bodies orthe courts rather than an explicit stipulation of legislation. In two Member States this typeof discrimination is treated as sexual orientation discrimination. While in 13 MemberStates discrimination of transgender people is neither treated as sex discrimination noras sexual orientation discrimination, resulting in a situation of legal uncertainty.Finally, the legal analysis shows that a number of EU legislative instruments examined(Free Movement Directive 2004/38/EC, Family Reunificaiton Directive 2003/86/EC,Qualification Directive 2004/83/EC) do not take explicitely into account the situation ofLGBT persons. These instruments need to be interpreted in the light of fundamentalrights principles in the context of LGBT issues. It would be most useful to provide furtherguidance to national authorities in this respect to ensure legal certainty <strong>and</strong> equaltreatment.As the European Union's Agency for Fundamental Rights we must acknowledge that thislegal analysis presents a situation that calls for serious considerations. Let us not forgetthat the EU Charter of Fundamental Rights is the first international human rights charterto explicitly include the term “sexual orientation” in its Article 21 (1):“Any discrimination based on any ground such as sex, race, color, ethnic or social origin,genetic features, language, religion or belief, political or other opinion, membership of anational minority, property, birth, disability, age or sexual orientation shall be prohibited”.The Union's political leaders have therefore an obligation to take measures that willensure that any discrimination on grounds of sexual orientation <strong>and</strong> against transsexualpeople is eradicated <strong>and</strong> all these people can truly enjoy their right to be "different, butequal".In closing I would like to thank Professor Olivier De Schutter as the author of this report<strong>and</strong> the other legal experts of FRALEX for their contribution, as well as the staff of theAgency for their hard work <strong>and</strong> commitment.Morten Kjǽrum, Director4
<strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of Sexual Orientation in the EU Member StatesPart I – Legal AnalysisContentsFOREWORD ..........................................................................................................3BACKGROUND......................................................................................................9EXECUTIVE SUMMARY .......................................................................................131. Implementation of Employment Directive 2000/78/EC ................................251.1. The hierarchy of grounds under the equality directives ....................................351.2. The establishment of equality bodies with a competenceextending to discrimination on grounds of sexual orientation ...........................381.3. The prohibition of discrimination on grounds ofsexual orientation <strong>and</strong> the status of same-sex couples ....................................551.3.1. The general framework.....................................................................................551.3.2. The interpretation of the Employment EqualityDirective by the European Court of Justice ......................................................561.3.3. The requirements of international human rights law.........................................582. Freedom of movement ...................................................................................632.1. The general framework.....................................................................................632.2. A married partner of the citizen of the Union seeks to joinhim or her in another EU Member State...........................................................662.3. A same-sex registered partner of the citizen of the Unionseeks to join him or her in another EU Member State ......................................682.4. A de facto same-sex cohabitant of the citizen of the Unionseeks to join him or her in another EU Member State ......................................702.5. The same-sex marriage or partnership concluded by acitizen of the Union in a Member State other than the Stateof which he/she is a national ...........................................................................713. Asylum <strong>and</strong> subsidiary protection................................................................873.1. Asylum: the general framework ........................................................................873.2. Subsidiary protection: the general framework .................................................903.3. Family members of the individual seeking internationalprotection..........................................................................................................935
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