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Homophobia, Transphobia and Discrimination on Grounds of Sexual Orientation and Gender Identity

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TK-30-10-548-EN-C doi:10.2811/83741 TK-30-10-548-EN-C FRA Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity orientation of sexual on grounds and discrimination Homophobia, transphobia Developments over the past years testify to the increasing awareness of the rights of lesbian, gay, bisexual and transgender (LGBT) persons in the European Union. This report updates the FRA comparative legal analysis of discrimination on the basis of sexual orientation and gender identity in the EU of June 2008. It provides an overview of trends and developments at the international and EU level on legislation and legal practice in the fi eld. While some encouraging developments towards better protection of LGBT rights have been noted in a number of Member States, in others little has changed since 2008, and in others some setbacks were also identifi ed. A comprehensive approach to issues of discrimination and victimisation visible across the areas examined would add to the fulfi lment of fundamental rights for LGBT people throughout Europe. FRA - European Union Agency for Fundamental Rights Schwarzenbergplatz 11 Homophobia, transphobia and discrimination 1040 - Wien Austria Tel.: +43 (0)1 580 30 - 0 on grounds of sexual orientation Fax: +43 (0)1 580 30 - 691 Email: [email protected] fra.europa.eu and gender identity 2010 Update Comparative legal analysis European Union Agency for Fundamental Rights The report addresses matters related to the right to life (Article 2), freedom from degrading treatment (Article 4), respect for private and family life (Article 7), the right to marry and found a family (Article 9), freedom of expression and information Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity – 2010 Update (Article 11), freedom of assembly (Article 12), the right to asylum (Article 18), the principle of non-discrimination (Article 21), Comparative legal analysis and freedom of movement and residence (Article 45) falling under the Chapters I ‘Dignity’, II ‘Freedoms’, III ‘Equality’ and V 2010 — 64 pp — 21 x 29.7 cm ‘Citizens’ rights’ of the Charter of Fundamental Rights of the European Union. ISBN 978-92-9192-631-2 doi:10.2811/83741 A great deal of information on the European Union Agency for Fundamental Rights is available on the Internet. It can be accessed through the FRA website at fra.europa.eu. Europe Direct is a service to help you fi nd answers to your questions about the European Union Freephone number (*): 00 800 6 7 8 9 10 11 (*) Certain mobile telephone operators do not allow access to 00 800 numbers or these calls may be billed. HOW TO OBTAIN EU PUBLICATIONS Free publications: • via EU Bookshop (http://bookshop.europa.eu); Credit (cover): © vishant reddy – iStockphoto • at the European Union’s representations or delegations. You can obtain their contact details on the Internet (http://ec.europa.eu) or by sending a fax to +352 2929-42758. More information on the European Union is available on the Internet (http://europa.eu). Priced publications: Cataloguing data can be found at the end of this publication. • via EU Bookshop (http://bookshop.europa.eu). Luxembourg: Publications Offi ce of the European Union, 2010 Priced subscriptions (e.g. annual series of the Offi cial Journal of the European Union and reports of cases before the Court of Justice of the European Union): ISBN 978-92-9192-631-2 • via one of the sales agents of the Publications Offi ce of the European Union doi:10.2811/83741 (http://publications.europa.eu/others/agents/index_en.htm). © European Union Agency for Fundamental Rights, 2010 Reproduction is authorised, except for commercial purposes, provided the source is acknowledged. Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity 2010 Update Comparative legal analysis FRA-10-105_rapport-homophobia_V03.indd 1 26/11/10 08:50 FRA-10-105_rapport-homophobia_V03.indd 2 26/11/10 08:50 Foreword Developments over the past years testify to the increasing awareness of the rights of lesbian, gay, bisexual and transgender (LGBT) persons at European Union and international level. At European Union level, the Treaty of Lisbon strengthens the framework of non-discrimination legislation. In particular, the now binding Charter of Fundamental Rights of the European Union is guiding policies to the extent that they have the potential to aff ect fundamental rights. According to the EU Treaties, the European Union shall combat social exclusion and discrimination and, in defi ning and implementing all of its policies and activities, it shall also aim to combat discrimination based on sexual orientation. Moreover, 2010 marks the 10th anniversary of the Employment Equality Directive, which has had a signifi cant impact on the harmonisation and strengthening of non-discrimination law in all EU Member States, including LGBT rights. The international consensus regarding the need to combat discrimination on grounds of sexual orientation and gender identity has been strongly reaffi rmed. In the context of the Council of Europe, the year 2010 witnessed the adoption of Recommendation CM/Rec(2010)5 by the Committee of Ministers, and also of a relevant Recommendation and Resolution by the Parliamentary Assembly. In the context of the United Nations, 66 states presented a non-legally binding joint statement at the General Assembly in 2008, reaffi rming the right of equal treatment for LGBT persons. However, in a minority of EU Member States, this component of the European human rights acquis still meets with resistance. Following restrictive legislation on the dissemination of information about homosexuality to minors or the ‘promotion’ of homosexuality, the European Parliament requested the Agency to examine the situation in depth. FRA has taken up this request in the context of its commitment to update its original 2008 comparative legal analysis of LGBT discrimination. Furthermore, this legal update, and the national background information on which it is based, forms part of a collaborative endeavour that the FRA has undertaken with the Offi ce of the Commissioner for Human Rights of the Council of Europe, in the framework of a study on homophobia and transphobia in all 47 Council of Europe Member States. This cooperation will also foster increased coherence and complementarity in the fi eld of human rights. This update reveals important trends, highlighting both positive developments as well as areas where much work remains to be done. It ensures the continued value of the original reports and also comes at a crucial time for the rights of lesbian, gay, bisexual and transgender (LGBT) people in Europe. The Agency will continue to provide evidence-based advice in order to support further improvements in legislation in this fi eld. Morten Kjærum Director FRA-10-105_rapport-homophobia_V03.indd 3 26/11/10 08:50 FRA-10-105_rapport-homophobia_V03.indd 4 26/11/10 08:50 Contents FOREWORD.............................................................................................................................................................................................................................................................................................................................................................3 EXECUTIVE SUMMARY ........................................................................................................................................................................................................................................................................................................................7 OPINIONS ...................................................................................................................................................................................................................................................................................................................................................................9 INTRODUCTION ......................................................................................................................................................................................................................................................................................................................................... 11 1. ACCESS TO AND LEGAL RECOGNITION OF GENDER REASSIGNMENT.................................................................................................................................... 13 1.1. Gender identity and gender reassignment .......................................................................................................................................................................................................... 13 1.2. Access to gender reassignment treatment ........................................................................................................................................................................................................... 14 1.3. Legal recognition of gender reassignment .......................................................................................................................................................................................................... 15 2. NON-DISCRIMINATION AND THE PROMOTION OF EQUALITY IN EMPLOYMENT ....................................................................................................... 19 2.1. Substantive issues ............................................................................................................................................................................................................................................................................................
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