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The Equal Jus Legal Handbook to LGBT Rights in Europe

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The Equal Jus Legal Handbook to LGBT Rights in Europe The Equal Jus Legal Handbook to LGBT Rights in Europe Equal Jus Info: http://www.equal-jus.eu/ This project has been funded with support from the European Commission under the Programme “Fundamental Rights and Citizenship 2007-2013″. This publication reflects the views only of the author, and the Commission cannot be held responsible for any use which may be made of the information contained therein. The Equal Jus Handbook to LGBT Rights in Europe. Edition 20110430 Project coordinator: Alexander Schuster Authors European Part: Linas Juozulynas, Krzysztof Śmiszek Review European Part: Tommaso Giovannetti Language review: Justine Quinn Graphic Design: Hg blu Srl, Italy 2 | The Equal Jus Legal Handbook for LGBT Rights in Eur o p e Table of contents Foreword ....................................................................................................................................................................... 6 Part I – Introduction ................................................................................................................................................. 7 Part II – Making non-discrimination rights effective: definitions, actors and strategies ........... 8 Section A: Definitions.......................................................................................................................................... 8 Section B: Actors.................................................................................................................................................... 8 1. Lawyers.................................................................................................................................................. 8 2. The Equality Bodies........................................................................................................................... 9 3. The European Union Agency for Fundamental Rights ........................................................ 9 4. The European Parliament’s Intergroup on LGBT rights ..................................................... 9 5. Bar Associations, Trade Unions, NGOs.....................................................................................10 Section C: Strategies...........................................................................................................................................12 1. The role of strategic litigation (general remarks)....................................................................12 2. The role of situation testing..............................................................................................................12 Part III - The international and European legal instruments against discrimination ................14 Section A. The International system of protection of LGBT Rights..................................................14 I. UN bodies.......................................................................................................................................................14 1. UN Charter Bodies ................................................................................................................................14 2. UN Human Rights Treaty Bodies.....................................................................................................15 II. OSCE’s instruments...................................................................................................................................16 Section B – The European legal instruments against discrimination based on sexual orientation and gender identity ....................................................................................................................17 I. Council of Europe........................................................................................................................................17 1. Commissioner for Human Rights...............................................................................................17 2. European Committee of Social Rights......................................................................................18 3. Parliamentary Assembly ...............................................................................................................19 II. European Union .........................................................................................................................................19 1. EU Law.......................................................................................................................................................19 2. Lisbon Treaty and the Charter of Fundamental Rights..........................................................20 Part IV – The main fields of discrimination based on sexual orientation and gender identity: violation of specific rights ....................................................................................................................................22 Section A. Discrimination of LGB persons .................................................................................................22 1. Same-sex couples ..................................................................................................................................22 2. Adoption of children by same-sex couples and parental rights..........................................23 3. Employment and working conditions...........................................................................................24 4. Discrimination in other fields than labour market, i.e. insurance, banking services. 25 5. Freedom of assembly and association ..........................................................................................25 6. Criminal law ............................................................................................................................................26 7. Freedom of movement in the EU and refugee claims .............................................................26 Section B. Discrimination of transsexual and transgender persons................................................26 3 | 1. Gender reassignment and change of name .................................................................................27 2. Consequences of gender reassignment for family life............................................................27 3. Health care...............................................................................................................................................28 4. Free movement of transgender persons in the EU ..................................................................28 5. Transgender asylum seekers............................................................................................................28 6. Transgender people and employment..........................................................................................29 Conclusion .................................................................................................................................................................30 4 | The Equal Jus Legal Handbook for LGBT Rights in Eur o p e The Equal Jus Legal Handbook to LGBT Rights in Europe 5 | International Commission of Jurists – ICJ website Foreword offers a number of valuable resources for gaining an in-depth knowledge of international protection: This handbook is an instrument aimed at lawyers www.icj.org. Finally, we recommend the FRA and jurists. The Equal Jus Project aims to provide comparative report updated in 2010 and the the tools needed by legal practitioners for better upcoming study on the situation in all Council of understanding of the protection afforded by Europe States produced by the Human Rights European and national law in cases of Commissioner Thomas Hammarberg for an in- discrimination on grounds of sexual orientation depth look at the legal situation of LGBT people in and gender identity. The handbook contains a each of the Member States. We have just directed European and national law section. Whereas the you to some of the online resources which we former is common to all national editions, the consider to be complementary to the Equal Jus latter has been developed only in respect of the tools. You should also visit the websites of the French, Italian, Lithuanian and Polish systems. organizations that will be presented below, which For each part there are complementary online contain a wealth of useful publications and learning tools such as tutorials, case studies, and reports. presentations on various legal aspects. The Equal Jus Database is a valuable tool and comprises legislation, case-law, literature and other legal documents. All resources are available on the www.equal-jus.eu website. This handbook builds on other tools developed before and during the project and has been contributed to and implemented by others in an effort to avoid duplication and enhance synergies. This handbook does not provide a general introduction to the law on non-discrimination and its general principles under the European Convention for Human Rights and EU law. We advise you to become acquainted with the law on this area by consulting the Handbook on European Non-Discrimination Law jointly produced by the European Court of Human Rights and the FRA, the EU Fundamental Rights Agency, launched in March 2011 (available in most languages of the EU on fra.europa.eu and www.echr.coe.int). You can also practice and develop your skills with the resources offered by the Human Rights Education for Legal Professionals program of the Council of Europe: www.coehelp.org and keep
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