Analysing how LGBTQ+ rights are protected under EU legislation and case law

The Amsterdam Treaty – Introduction of LGBTQ+ rights to EU law

One of the first major steps the European Union took towards recognising LGBTQ+ rights is the ratification of the Amsterdam Treaty, which entered into force on 1 May 1999.

Prior to the Amsterdam Treaty,  EU legislation only provided for the prohibition of discriminatory treatment based on race and sex. However, the scope of EU equality law greatly expanded when the Amsterdam Treaty introduced Article 13 of the European Community Treaty (now Article 19 of the TFEU, and Article 21 of  the EU Charter of Fundamental Rights). This provision granted the EU the competence to take appropriate measures to combat discrimination based on six grounds, including sexual orientation.

With the inclusion of Article 13 in EU primary law, the EU gained the legal authority to combat unequal treatment on the basis of sexual orientation, at least in the EU institutions. As a Charter right, Article 13 is also applicable to Member States when acting within the scope of EU law. 

Coman – Family life for LGBTQ+ individuals in the EU

Coman is a landmark case against Romania that affirmed the protection of LGBTQ+ families’ rights to family life.

Article 21 of the TFEU enshrines and protects the freedom of movement of EU citizens,  allowing them to freely travel and reside in all the member states without restrictive entry requirements, such as  visas or residence permits. Article 7 of Directive 2004/38  grants residence rights to an EU citizen’s spouse or dependent child. 

In Coman, the Court of Justice of the European Union (CJEU) extended the definition  of “spouse” under the Directive to include same-sex partners legally married under the law of another member state. The ruling precluded a Member State from denying residency rights to the same-sex partner of an EU citizen. the refusal of a Member State to grant residency rights to the same-sex partner of an EU citizen. Through this, CJEU affirmed that same-sex couples consisting of an EU citizen and a non-EU citizen enjoy the same rights under Article 21 as heterosexual couples.

Moreover, Coman confirmed  that same-sex relationships fall  within the definition of “family” in Article 8 of the European Convention of Human Rights (ECHR), and are hence protected under the right to family life without undue interference by the state. 

However, paradoxically, Coman has insisted on following past jurisprudence of the CJEU, and did not enforce the implementation of marriage equality laws for same-sex couples in EU member states. In Coman, the CJEU has maintained the position that member states have the right and competence to determine what constitutes “marriage” under their respective domestic legislations, and that EU law does not mandate the recognition of same-sex marriage. Despite this, however, it is worth noting that 16 European countries allow same-sex marriage, while  23 allow civil unions. 

Employment Equality Directive – Equal employment rights for LGBT individuals in the EU

The Employment Equality Directive (Directive 2000/78/EC) is a piece of EU legislation aimed at limiting and preventing workplace  and employment discrimination based on religion, disability, age or sexual orientation. 

Although EU directives typically do not have horizontal direct effect, meaning they do not usually   apply to individuals or private organisations, Article 3 of the Directive made an exception to the general rule, extending its scope to private employment relationships. Hence, this makes it possible for LGBTQ+ individuals within the EU to invoke Directive provisions in national courts against private employers, rather than just public authorities or  states. This provides  LGBT individuals enhanced legal protection when faced with workplace/employment discrimination by privately-owned businesses and corporations. 

According to Article 3, the Directive ensures that LGBTQ+ individuals:

1. Have  equal access to employment, vocational training as well as practical work experience 

2. Are granted equal employment and working conditions as heterosexual individuals

3. Receive  the same benefits as other employees in any professional organisation

Interestingly, the Employment Directive does not extend such protections to state social security or social protection schemes.

Conclusion

Overall, the EU provides significant legal protection to LGBTQ+ individuals, in terms of queer family life and  equality in employment. However, as evidenced in the EU case law, such as Coman, the CJEU has been reluctant to  forcefully alter constitutional traditions of EU member states concerning  marriage, and fully enshrine the principle of marriage equality in the EU. 

Given that it is evident that the CJEU favours a wide interpretation of the principle of equal treatment, in relation to sex and race, it is thinkable that the court will also extend this to the upholding of LGBTQ+ rights in EU law. As a result, greater legal recognition and protections for LGBTQ+ individuals in the EU can be expected in the future.

References and Further Reading

“After Amsterdam - Sexual Orientation and the European Union” (ILGA Europe)

“Charter of Fundamental Rights of the European Union, Article 51(1)” (European Union)

“Judgment of 5 June 2018, Relu Adrian Coman and Others v. Inspectoratul General pentru Imigrari and Ministerul Afacerilor Interne, C-673/16” (Court of Justice of the European Union)

“Treaty on the Functioning of the European Union, Article 21” (European Union)

“Council Directive 2004/38/EC, Article 3 (Beneficiaries)” (European Union)

“Research Briefing: LGBT+ Rights and Issues in Europe” (House of Commons Library)

“Council Directive 2000/78/EC (Employment Equality Directive), Article 1 (Purpose)” (European Union)

“Council Directive 2000/78/EC (Employment Equality Directive), Article 3 (Scope)” (European Union)