European Law Against Discrimination on Grounds of Sexual Orientation

Abstract

Since 1981, a large body of European case law and legislation has developed which prohibits many forms of discrimination against lesbian, gay and bisexual (LGB) individuals, and same-sex couples. This chapter will examine developments in this area, starting with protection for LGB individuals, and then turning to the more sensitive (because of the effects on national family law) question of protection for same-sex couples. Within each of these two categories, developments under the European Convention on Human Rights (ECHR, applying to the 47 Member States of the Council of Europe) will be considered first, followed by developments under European Union law (applying to the 28 EU Member States). DISCRIMINATION AGAINST LESBIAN, GAY, AND BISEXUAL (LGB) INDIVIDUALS European law generally prohibits all forms of discrimination against LGB individuals, as long as the party alleged to have discriminated is a public authority bound by the ECHR, or a private person acting within the material scope of Directive 2000/78/EC. Where there appears to be a gap in legal protection, it can be argued that there is an ECHR obligation to pass legislation prohibiting discrimination by private persons in certain areas that are not yet covered by EU or national law. EUROPEAN CONVENTION ON HUMAN RIGHTS Basic Democratic Freedoms (Expression, Assembly, Association) In theory, every European government should understand that Articles 10 and 11 ECHR protect the democratic right of any group, including LGB individuals, to campaign for reforms to any area of the law, including family law, through peaceful means: forming associations (civil society or non-governmental organisations); organising public demonstrations, marches, and other assemblies; and expressing ideas through websites, social media, paper publications, banners and placards. Unfortunately, governments sometimes find a particular idea too threatening to traditional society to be tolerated. This has been the case since at least 2001 in much of Central and Eastern Europe, as the LGB minorities of formerly Communist countries attempted to become more visible, by holding the kind of LGB Pride Parade that was by then common in Western Europe. Hostile reactions in these countries have oft en involved demands for public authorities to ban these events, violent attacks by private persons who object to them, or both. Past or potential future violence is oft en used to justify bans, or is tacitly condoned when public authorities fail to provide adequate police protection.