Raluca-Alexandra Descultu SNR. 2021085 ANR. 521371 Master Thesis Supervisor: Dr

DISCRIMINATION OF THE LGBTQ COMMUNITY IN EMPLOYMENT: A COMPARATIVE PERSPECTIVE ON ROMANIA AND THE NETHERLANDS

Raluca-Alexandra Descultu SNR. 2021085 ANR. 521371 Master Thesis Supervisor: Dr. Saskia Montebovi

Tilburg Law School

To Liviu, my best friend, whose courage, kindness and faith in people will always be an inspiration to me.

Department Labour Law and Employment Relations

Table of contents

Chapter I. Introduction

1. Importance

2. Objectives

3. Methodology

4. Structure of the thesis

Chapter II. The history and development of the legislation governing same-sex relationships and gender identity issues in Romania and The Netherlands

1. Romania 2. The Netherlands 3. Comparison 4. Conclusion

Chapter III. International legislation

1. EU Charter of fundamental rights 2. Treaty on the Functioning of the European Union 3. The Yogyakarta Principles 4. Directive 2000/78/EC 5. Conclusion

Chapter IV. Overview of the general influences regarding the LGBTQ communities in both countries

1. National organizations supporting the community in the Netherlands and their opponents 2. National organizations supporting the community in Romania and their opponents 3. Romania’s 2018 Referendum 4. Conclusion

Chapter V. Comparison on the discrimination in the working field

1. Netherlands

1.1. Legislation protecting the rights of the community in employment

1.2. Case Law 2. Romania 1.1. Legislation protecting the rights of the community in employment 1.2. Case Law 3. Conclusion

Chapter VI. Conclusion

1. Conclusion 2. Predictions and recommendations

List of abbreviations

CFR - Charter of Fundamental Rights of the European Union CJEU - Court Of Justice of the European Union EU – European Union ETC - Equal Treatment Commission ECSOL- European Commission on Sexual Orientation Law GETA - General Equal Treatment Act ICJ - International Commission of Jurists ILGA – Europe – European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association LGBTQ – Lesbian, Gay, Bisexual, Transgender, Queer/Questioning TFEU - Treaty on the Functioning of the European Union UDHR - Universal Declaration of Human Rights UN – United Nations

DISCRIMINATION OF THE LGBTQ COMMUNITY IN EMPLOYMENT: A COMPARATIVE PERSPECTIVE ON ROMANIA AND THE NETHERLANDS

CHAPTER I 1.Importance

It is safe to assume that a country’s history will affect its course over the following generations. When certain traditions and taboo topics become so embedded in a state’s general principles, even in an unofficial way, it is going to be a very difficult process to let go of those aspects in order for that country to evolve in a modern, educated and just state. A subject of great importance and relevance today, amended by the Treaty on the Functioning of the European Union (TFEU) and the Charter of Fundamental Rights of the European Union (CFR), is the prohibition of discrimination based on sexual orientation. Art. 10 of the TFEU states that “In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation” (TFEU, 2007). Moreover, we can observe the binding nature of the treaty through art. 19: “Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” (TFEU, 2007). Another relevant document is the Charter of Fundamental Rights of the European Union, that states in its Title III, art. 21, that: “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited” (CFR, 2000). Nineteen years later since the Employment Equality Directive (2000/78/EC) that prohibits the sexual orientation discrimination at work, we can observe certain states still having trouble letting go of misconceptions and lack of empathy towards the nature of individuals perceived as different from what people believe is “normal”. The primary focus of this thesis will be to analyze and compare this issue in two European Union Member States – Romania and the Netherlands. While most people know that the Netherlands was the first country in the world to legalize same-sex marriage in 2001, and

Amsterdam is often viewed as a place of people feeling safe celebrating the LGBTQ community, things are quite different in Romania. Regarding this country, the relevance of this subject is illustrated by the fact that Romania spent $40 million in early October 2018 on a referendum, in order to change the art. 48 of the Constitution on the definition of family, which states: “The family is founded on the freely consented marriage of the spouses, their full equality, as well as the rights and duty of the parents to ensure the upbringing, education and instruction of their children.”(Constitution of Romania, 1991). The referendum lobbyists claimed that the formulation of the article, specifically the term “spouses” is ambiguous and open to interpretation, making the same-sex marriage constitutional. However, the Romanian statute law does not allow same sex marriage, as the Romanian Civil Code states in art.259, related to marriage, that: “Marriage is the freely consented union between a man and a woman, settled under the terms of the law.”(The New Civil Code, 2009). The referendum failed, but the fact that it got so far paints the picture of quite a regress comparing it to other European countries and is a serious threat to the integration process in the European Union. On a personal level, I chose this topic because I would like to provide a better understanding, from a legal perspective, of this current issue in two European countries that I was fortunate enough to observe. Having friends that belong to the LGBTQ community (Lesbian, Gay, Bisexual, Transgender, Queer/Questioning), it made me aware of the difficulties they were facing while growing up in Romania, a country that in my opinion is still shaken by communism, corruption and toxic “traditional” views induced by religion. On the other hand, after living in the Netherlands for a bit over one year, I saw the impact of a more empathic and educated view, that most of the time is in line with the expected standards from international treaties and directives.

2.Objectives and Research Question The aim of this thesis is to answer the main research question:

 “What are the differences and similarities between Romania and the Netherlands regarding the discrimination of the LGBTQ community in the working environment?”. Moreover, several sub-questions will appear in each chapter and they will represent the steps towards contouring the final answer, such as:

1. “How did the LGBTQ rights evolve in each country and what were the causes that led these countries to have different perceptions on this issue?” 2. “What are the main international sources protecting the rights of the LGBTQ community?”

3. “What are the main organisations supporting the community in each country and the resistance they’re facing in practice and what are the violations brought to the LGBTQ rights in each country? 4. “What is the legislation in place for discrimination of the LGBTQ community in employment in the observed countries and what is the relevant case law in regards to employment and the abuse LGBTQ people experienced at work?”, and finally, 5. “What steps should be taken in order for this issue to ameliorate?”. My overall objective is firstly to identify the main causes of this phenomena in both countries and analyze the differences, and secondly, to propose several solutions to the issue in cause after stating my personal predictions on the matter. 3.Methodology In this section, I will illustrate the methodology used for this research. Legal documents will be the main source of analysis in order to answer the main research question and the subsequent ones. I will make use of both national and international legislation, binding and non-binding, such as directives, treaties, companies’ guidelines and principles, constitutions, and other relevant national documents. A very important part of the research will be represented by the analysis of academic books, journals, articles and reports. I will choose different opinions and comment them in order to strengthen my point of view. The case-law from each country will be analyzed in order to see the practical perspective and analyze the importance of this issue in each country, in order to provide a better understanding of the difference between the legislation and the way things happen in practice. Also, certain international and national monitoring mechanisms as well as articles of relevant organizations fighting for the protection of this community and human rights will be presented in the paper. Therefore, the methodology used is divided in two parts: the theoretical part, represented by the analysis of national and international legislation in the matter, and a practical approach, contoured by the different case-law relevant in this matter. The comparison I want to make between the theoretical and practical aspects of this issue will provide a better understanding on this view and will offer an answer to the central research question.

4.Structure of the thesis The thesis is structured in 6 chapters: the introduction, the four chapters used to analyze the issue, and the conclusion. The introduction will present the importance, objectives, and methodology used to answer the main research question. Each chapter will start with one or more sub-questions and will be finalized with a conclusion. Chapters II and III are dedicated to the historical overview of each country on this matter and

8 we will follow the course of the legislation and changes on the subject that happened in the recent years. In order to better understand the differences between these two countries, it is of great importance to take a look at the political and historical development in each member state. Later in the thesis, with the help of chapters IV and V the main focus will be the working environment and we can see how every aspect of a country makes it intertwined with all fields, making it difficult not to feel the weight of misconceptions in all areas of a citizen’s life. Chapter V focuses on the practical aspects of the issue, and several cases from both countries will be analyzed. Lastly, in chapter 6, as the final step in my thesis, I will present my own personal predictions about the topic. Moreover, with the help of organizational change techniques and diversity management, I will suggest different solutions to this cause. The conclusion of the thesis will therefore summarize my main findings presented in the paper and will provide an answer to the research question.

CHAPTER II The history and development of the legislation governing same-sex relationships and gender identity issues in Romania and The Netherlands In this chapter, I will answer one of the thesis’ sub-questions: “How did the LGBTQ rights evolve in each country and what were the causes that led these countries to have different perceptions on this issue?”. By the end of the chapter, I aim to shed some light upon the ambiguous nature of this issue. Sexual orientation, a term so easily used nowadays in defining a person’s individuality, represents actually a sphere of more complex factors that indicates the scope of a person’s most intimate desires, defining a more profound and innate aspect of his humanity. For most people, regardless of their orientation, voicing this element of their nature can be as important to their evolution as their freely manifested race, ethnicity, religion, etc.(Human Rights Watch and the IGLHRC, 1998, p.2).

1. Romania It is of great importance, in order to fully grasp the intricacies of the present situation on the discrimination of this community in Romania, to take a look back to the evolution of these rights.

In 1936, the country’s penal code, dating from 1864, was being revised under the influence of fascist principles that were sustained by the dictatorial nature of King Carol II. Therefore, the first paragraph of art. 431 penalized: “acts of sexual inversion committed between men or between women, if provoking public scandal” (Penal Code of Romania, 1936), raising questions regarding the language used that persist in Romania today. The infraction was penalized with six months’ to two years’ imprisonment. (Human Rights Watch and the IGLHRC, 1998, p.6).

However, only after what now was the Socialist Republic of Romania, in 1968, the code was fully revised. The code captured the realities of a socialist regime in place since the Second World War, but also the small steps the leader Ceausescu was taking towards restricting most of the freedoms as an instrument of manipulation and control.

Art. 200 stated that “Sexual relations between persons of the same sex are punishable by imprisonment of one to five years.” (Penal Code of Romania, 1968, p.14-15). In a way, homosexuality became a phenomenon that people were becoming aware of, explicitly recognized by the law, but unfortunately, only to be entirely prohibited and blamed; also, the punishment drastically increased. This article suppressed the birth of a

10 new minority, by prohibiting the public display of gay or lesbian identity (Human Rights Watch and the IGLHRC, 1998, p.14-15).

Several years after the fall of communism in 1989, art. 200 was amended, incriminating only the public same-sex sexual activities, a change that happened in 1996. Later in 2001, the government adopted the Emergency Ordinance no. 89/2001, eliminating art. 200 of the Penal Code completely. However, the Civil Code makes it clear that any kind of same-sex civil union is not accepted on the country’s territory.

All things considered, in my opinion, the radical regime that Romania was exposed to for 52 years, especially under the leadership of Ceausescu, who used extreme measures of population control, abolishing the private life and using the provisions of art. 200 to enforce his own pro-natalist policies, created long-lasting tendencies that are still felt today. When people are guided and encouraged to discriminate and ostracize certain categories of people, especially through severe punishment if they do not comply, it is a certain pathway towards a regress regarding social protection and acceptance.

The issue I also want to address is that Romania is a country that ranked no.129 in a list of the poorest countries in the world, based on the database provided by the International Monetary Fund. The main issue that this country faced after the end of communism in 1989 was the corruption. What became known as the Social Democratic Party, it was a way of continuing the bad practices within the country by greedy individuals, corruption being on the rise ever since. Even though with the adhesion to the European Union under the condition that the country addressed the issue of corruption, which lead to the creation of the National Anticorruption Directorate and Romania finally joining the European Union in 2007, nothing much changed. That is until 2013, when the above mentioned agency managed to imprison approximately 1100 politicians, making the population of the country trust it more than it did the Parliament.

On October 31st, 2015, Romania received its long awaited slap that led to the wake-up call the country really needed. The Colectiv nightclub caught fire, immediately killing 64 people and leaving several others severely injured. The results of the investigations concluded that the club’s authorization to function was not in order with the national legislation, and that night, the capacity of the club was way over limit. It was in that moment the people realized how far the corruption went. What was happening in hospitals to the survivors created a dramatic situation. Hospitals were overcrowded, the people would contract several other diseases because of the poor management of public hospitals, so the people who afforded a transfer to other countries were sometimes lucky. Most of the time they were not. Even in these awful circumstances, religious people started blaming the public that was present at the club that night, the

11 coincidence being that it was the Halloween night, the event was a rock concert to promote a new album of a band (Goodbye to gravity), and one of the songs was named “The day we die”. The presumption of a satanic meeting was made, and some of the people claimed that the kids that died that night got what they deserved. Several people started protesting in this sense against the corruption still so hardly felt all over the country.

Recent events took a dramatic turn, when the party elected started drafting legislative measures that would offer an open high road towards a legally corrupted country. What they wanted to implement, alongside other aspects, was the legalization of bribery, if it didn’t cross the sum of 44.000 euros, as almost all the party’s leaders had criminal records or open cases within the agency regarding this very aspect. The directives were adopted after a party meeting that was held at night, and had a surprising effect. In 2017, Romania faced the biggest protest conducted by the population, bigger even than the one held under the revolution in 1989, carried out not only in Bucharest, but also in several cities across the country. The directive wasn’t adopted at the moment, and ended with the resignation of the prime-minister.

It is important to realize that the power of this country, after such a long time, still does not reside in its united population as it should be. By making use of the uneducated poor side of the population (through some mere gifts during the campaign - one kilogram of flour, sugar, t-shirts), the most corrupted people end up being in charge and they go even further with manipulation techniques.

That’s why in the middle of a national crisis, the lead party managed to give importance to what they called “Coalition for family”, an organization aiming at preserving the “traditional Romanian family” and its values. An often heard phrase while approaching the LGBTQ subject around many Romanians is “What will I tell my children when they will see two men/women kissing on the street?”, followed by, numerous religious arguments or just plain unjustified repulsion. The irony is that this very religious people are found to be oftentimes immoral people. In this regard, a lot of informal photos appeared on social media platforms close to the referendum, in order to counter this very saying, like: “What will I tell my kids when I’m forced to leave them with their grandparents and go work abroad?”, “What will I tell my children when their father beats me and I feel hopeless in regards to asking for help?”, “What will I tell my kids when they will not receive proper care in the hospitals?”, etc.

What is very important to acknowledge is the fact that there is still hope for better things to come. Given the failure of the referendum and the number of people that voted this year, maybe this country can finally escape its past.

2. The Netherlands

The Netherlands was the first country in the world to legalize same-sex marriage in 2001 and is well-known all over the world as a gay-friendly environment, despite some issues arising from the fact that the country is host to a lot of religious minorities that tend to not accept different sexual orientations, but also, as everywhere in the world, home of people that still have discriminatory views. In order to understand the evolution of this phenomenon and the liberty that came with it, an analysis of its history is needed.

Following the takeover by the French Empire in 1810, Holland adopted the Napoleonic penal code one year later. The code contained the offences against decency, which represented a convenient way for the criminal prosecution of same-sex intimate relationship. However, the consensual sexual activities of same-sex adults were no longer a criminal offence (Out in the Netherlands, 2007, p.21).

The Constitution adopted in 1848 represented the birth of a liberal and democratic view on the issue, and every element of Dutch politics was lead by liberals who considered morality laws as unwanted state intervention in the personal lives of citizens (Out in the Netherlands, 2007,p.21).

The re-criminalisation that happened from the end of the 19th century onwards under the influence of Roman Catholic and Orthodox Protestant political parties brought a new legislative provision in 1911, Section 248bis of the Criminal Code, that raised the legal age of consent for homosexual intercourse from 16 years old (the age requirement for heterosexual intercourse) to 21 years old. The idea that lied underneath this provision was the belief that homosexuality was transferred through seduction. (Out in the Netherlands, 2007,p.22).

In 1940, with the occupation by the Germans, all forms of “lewdness” between men, even if they were consensual, were transformed into criminal offences. However, there was no actual prosecution of homosexuals and the number of people convicted according to Section 248bis dropped.(Out in the Netherlands, 2007, p.22)

As the religion activists started to adopt a more modern way of thinking induced by the fear of losing ground, sex in general was now not viewed as a sin, making the transition towards the acceptance of same-sex relationships easier. In 1997, the Netherlands introduced the registered partnership that existed already in Denmark ever since 1989, and soon after, in 2001, the first same-sex marriage ceremonies were performed in Amsterdam. Since then, same-sex couples are also allowed to adopt a child born in the Netherlands (Out in the Netherlands, 2007,p.26).

3. Comparison There are a few similarities between Romania and the Netherlands regarding the LGBTQ community, both countries having a past where tolerance towards this issue was absent. The raised age of consent for same-sex sexual relations, the social exclusion of the people and the way they were forced to deal with it, such as secrecy, public secluded places for meeting people with this identity and the legal prosecution are only a few. What remains to be answered is how did both systems end up to be so different in the end. Nowadays, even if in Romania in the recent years this issue started to be in the center of attention, with the help of the ACCEPT association that fights to combat the discrimination on this matter and the gay pride parade happening every year since 2004, there are still a lot of combatants that publicly express their aversion towards the “abnormal” happenings of this community. This can be partly explained by the religious views of the country combined with the long- lasting legal prosecution of this kind. In the Netherlands, there are a few factors that can explain the major differences we can observe comparing it with Romania. A first element would be the egalitarian society the Netherlands is often viewed as, in which we find significantly less power differentials between men/women, parents/children, bosses/workers, etc, than in other countries (Out in the Netherlands, 2007). These differentials were reduced even more by the generosity of the Dutch welfare state, focusing on the economical aspect but also on the well-being of the population, which make it easier for young people or women to become independent from the authority of parents and spouses. (Out in the Netherlands, 2007, p.28) Another explanation would be that the authorities together with the public learnt that repression could be more harmful in the event of a tolerance of “social evils”, a practical example would be the acceptance of gay bars in late 1950’s in Amsterdam, as the police preferred to know the presence of homosexuals there rather than in parks and public toilets. (Out in the Netherlands, 2007). The interdependency between elite groups, such as lawyers, priests, psychologists made an easier transition towards acceptance in a country where a strong conservative tradition was absent. (Out in the Netherlands, 2007,p.28).

4.Conclusion As we observed, the course of the LGBTQ community’s rights development was definitely different in Romania and the Netherlands. The political and religious views, so inherently disparate, followed two very distinct scenarios.

In my opinion, we can make the distinction between a country that still recovers from the hardships of several strongly authoritarian regimes, represented by Romania, and a more liberal, open-minded, egalitarian society that we can find in the Netherlands.

Chapter III. International legislation

Art. 1 of the Universal Declaration of Human Rights (UDHR) claims that “all human beings are born free and equal in dignity and rights. Therefore, the people belonging to the LGBTQ community are protected under the general framework of international human rights law, “guided by the principles of universality and non-discrimination”.(Pudzianowska, D, Śmiszek, K. and Tobler, C., 2015, p.10). However, discrimination on grounds of sexual orientation is still a major problem in the European Union, and it’s been on the rise in the recent years. (Pudzianowska, D. et al., 2015, p.7). In this chapter, I will answer one of the thesis’ sub-questions: “what are the main international sources protecting the rights of the LGBTQ community?“. 1. The European Charter of Fundamental Rights The Lisbon revision of the Treaty on European Union (2009) awarded the European Charter of Fundamental Rights the same legal value as the Treaties, through art. 6(1), transforming the charter, proclaimed then as a non-binding instrument, into a binding document part of Union primary law. . (Pudzianowska, D. et al., 2015, p.23) Art. 21 of the charter, mentioned in the introduction, includes sexual orientation as a prohibited ground of discrimination, also becoming the first international human rights instrument to do so. . (Pudzianowska, D. et al., 2015, p.23). However, the Court of Justice of the European Union (CJEU) seems to show only a brief interest in relying on the Charter in its case law on discrimination based on sexual orientation, but its role regarding the Directive 2000/78 remains that of a constitutional benchmark (Pudzianowska, D. et al., 2015, p.23). 2. Treaty on the Functioning of the European Union As we already discussed in the introduction, a very important binding document regarding the prohibition of discrimination based on sexual orientation, remains the TFEU. With its art. 10: “In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation” (TFEU, 2007) and art. 19: “Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” (TFEU, 2007), represented the groundwork for the evolution of the LGBTQ rights. 3. The Yogyakarta principles

The Yogyakarta principles have been created by human rights experts, in 2006, more exactly by the International Commission of Jurists (ICJ) and the International Service for Human Rights, in the context of the abuse people were still experiencing regarding sexual orientation. The principles are a set of international legal principles on the application of international law to human rights violations based on sexual orientation and gender identity, containing 29 principles that clearly indicate the State’s obligations on this matter (International Commission of Jurists, 2007, p.7) Although in its introduction, the Yogyakarta Principles “affirm binding international legal standards with which all States must comply.” (International Commission of Jurists, 2007, p.7), they are not binding. However, the UN bodies have used in their work the Principles, especially in regards to the definition of sexual orientation enshrined in this document (Pudzianowska, D. et al., 2015, p.11). “Sexual orientation” is used, according to the Yogyakarta Principles, “to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender”. (International Commission of Jurists, 2007, p.8) “Gender identity” is defined as “each person’s deeply felt internal and individual experience of gender which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms. (International Commission of Jurists, 2007, p.8). Ten years later, on 10 November 2017, the Yogyakarta Principles+10 were adopted in Geneva, adding a set of nine Additional Principles and 111 additional State obligations, covering a range of rights that were brought into attention as a result of the evolution and developments in international human rights law and the paramount violations suffered by people on grounds of sexual orientation and gender identity (YP+10, 2017). In the 2006 Principles, the authors recommend the UN institutions, but also several other organizations or national governments, under the general belief that “all members of society and of the international community have responsibilities regarding the realization of human rights. “. (International Commission of Jurists, 2007, p.33), to endorse, promote and implement the principles worldwide. Although not binding, the importance of the principles remains unequivocal.

4. The Employment Equality Directive 2000/78 Before 2000, none of the European Union Member State constitutions contained an explicit prohibition of discrimination in regards to sexual orientation, even though most of them had a general and openly formulated equality clause (Pudzianowska, D. et al., 2015, p.20). The Employment Equality Directive mentions the crucial values of the Union, especially in regards to human rights, but more importantly the fact that the discrimination on grounds of sexual orientation may cripple the objectives of the Union, particularly the achievement of a high level of employment and social security, the improvement of the level and quality of life, economic and social cohesion, solidarity and free movement of persons (Pudzianowska, D. et al., 2015, p.26). The personal scope of the Directive can be found in Art. 3(1), that states: “this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies” (Directive 2000/78), which means that no matter the area of employment, regardless of its providers, the employees are covered by the protection against discrimination based on sexual orientation, including also social partners. Therefore, the Directive comprises both psysical and legal persons among those protected (Pudzianowska, D. et al., 2015, p.26). The material scope of the Employment Equality Directive, under art. 3(1) is represented by certain aspects of employment and occupation: a) “Conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; b) Access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; c) Employment and working conditions, including dismissals and pay; d) Membership of, and involvement in, an organization of workers and employers, or any organization whose members carry on a particular profession, including the benefits provided for by such organisations.” (Directive 2000/78) Therefore, the directive offers protection against discrimination to all forms of work, not only traditional employment regulated by the national labour law (Pudzianowska, D. et al., 2015, p.26). In the Directive, we can observe four kinds of discrimination : direct and indirect discrimination, harassment and instructions to discriminate. Art. 2(2)(a) of the directive claims that: “direct discrimination shall be taken to occur where one person is treated less favorably than other is, has been or would be treated in a comparable situation, on any of the grounds referred to in art. 1.” (Directive 2000/78).

The unjust treatment must be unfavorable by comparison to a person that does not have a characteristic perceived as ground for the discrimination in question, so the unfavorable treatment of homosexuals as well as of bisexual people will be compared to that of heterosexual persons. Relevant examples are illustrated by the refusal to hire or promote persons only because they are thought to be homosexual or where religious organisations refuse to employ these persons because of their sexual orientation. (Pudzianowska, D. et al., 2015, p.28). Indirect discrimination is defined in the art. 2(2)(b) of the Directive, stating: “indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless […] that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” (Directive 2000/78). Although there is no case law of the CJEU on indirect discrimination on grounds of sexual orientation, a practical example from the field of employment might be represented by a scenario where an employer chooses to organize a training seminar for his employees in a country where homosexuality is illegal. (Pudzianowska, D. et al., 2015, p.29). Article 2(3) of the directive defines harassment as: “when unwanted conduct related to any of the grounds referred to in Art. 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.” (Directive 2000/78). “The concept of harassment encompasses expressions of homophobia, entailing negative or derogatory comments, innuendos, offensive nicknaming or name-calling, insults or slurs about gay, lesbian or bisexual persons by the employer, co-workers or even clients.” (Pudzianowska, D. et al., 2015, p.29). The Directive states that the instruction to discriminate against persons on any of the grounds referred to in art. 1 shall be deemed to be discrimination. The act of instruction itself is represented by the giving of an indication, rather than actually engaging in the act of discrimination directly. (Pudzianowska, D. et al., 2015, p.29). The Directive offers protection also against assumed sexual orientation to people who do not have the sexual orientation in question, but they are perceived as such in the employment field, as the Court observed in the case ACCEPT, which concerned a hate speech towards a Romanian professional football player and his anticipated sexual orientation. (Pudzianowska, D. et al., 2015, p.33). The Directive also indicates the exceptions or derogations to the prohibition of discrimination.

Firstly, we have the general exception of art. 2(5) : “This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.” (Directive 2000/78) Secondly, the sexual orientation as a genuine and determining occupational requirement can be a derogation, as the directive states in art 4(1): “Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds [..] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.” (Directive 2000/78, 2000). This relates to a a person’s ability to perform the job effectively in comparison with other persons, not necessarily an absolute impediment in a certain occupation. (Pudzianowska, D. et al., 2015, p.35). Art. 7(1) illustrates the positive action exception: “with a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred in art. 1.” (Directive 2000/78, 2000). A practical example for positive action could be the creation of job advertisements in a way that would encourage LGBTQ candidates, especially in regards to vacancies in environments perceived as potentially homophobic (army, police). (Pudzianowska, D. et al., 2015, p.36). Art. 4(2) of the Directive states: “[..]in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.”(Directive 2000/78, 2000).

This article illustrates the EU’s effort to accommodate two vital values enshrined in primary EU law, on the one hand the guarantees of freedom of thought, conscience and religion and the autonomy of churches and other organisations of this kind, and on the other hand, equality and non-discrimination. (Pudzianowska, D. et al., 2015, p.37). The subjective scope of this exception covers churches and organisations functioning on the basis of an ethos of a religion or belief, these institutions being allowed to derogate from the obligation of non- discrimination of employees regarding their employees’ religion or belief, therefore there is no derogation allowing religious organisations to discriminate on the ground of sexual orientation. (Pudzianowska, D. et al., 2015, p.37).

Regarding the burden of proof, the Directive suggests that once the applicant has established that the direct/indirect discrimination has occurred, there is a rebuttable presumption of discrimination, the burden of proof shifting to the respondent who has to show that the principle equal treatment has not been breached. (Pudzianowska, D. et al., 2015, p.38)

5. Conclusion Sexual orientation discrimination is still a very actual issue that requires special attention in order to completely achieve the objectives enshrined in the most important international documents. So far, I established the relevant documents in regards to sexual orientation discrimination: The EU Charter of Fundamental Rights, The Treaty on the Functioning of the European Union, The Yogyakarta Principles, and regarding the working environment, the Employment Equality Directive 2000/78/EC. Binding or not, just as in other fields of the European Union law, these documents represented milestones towards achieving a righteous and accepting society and should be seen as an indisputable success in fields that seemed almost utopic not so long ago.

Chapter IV. Overview of the general influences regarding the LGBTQ communities in both countries In this chapter I will try to answer one of the thesis’ sub-questions, namely: “What are the main organisations supporting the community in each country and the resistance they’re facing in practice and what are the violations brought to the LGBTQ rights in each country?”

1. NATIONAL ORGANIZATIONS SUPPORTING THE COMMUNITY IN THE NETHERLANDS AND THEIR OPPONENTS

The most prominent organization defending the rights of the LGBTQ community in the Netherlands is COC Nederland, which is also the oldest lesbian, gay, bisexual and transgender organization in the world, having been founded in 1946 under the pseudonym Cultuur en Ontspannings-Centrum, meaning “Centre for Culture or Leisure”. (COC Netherlands, 2007) Ever since its inception, COC has been highly active and involved in the implementation of significant social and legal changes for the LGBTQ community in the Netherlands and abroad, devoting themselves to the visibility, recognition and acceptance of the community, through various measures regarding equality of rights, pension rights, parenting options and AIDS prevention. (COC Netherlands, 2007) They define their involvement in the field of LGBTQ rights through four pillars of activism: young people and education, care for the elderly, the multicultural society and international solidarity, which is aimed at improving the position and integration of the LGBTQ individuals in the work environment. In this respect they have had in the past coaching programmes in countries that are even today still conflicted on their views of this community, such as Romania. (COC Netherlands, 2007) To this day, in light of their myriad of accomplishments, they have gained a special consultative status with the United Nations which paved the way towards their contribution to the first UN resolution against the violation of LGBTQ rights, in 2011. (COC Nederland, About Us, 2019) Among others, one of the most notable achievements of COC Netherlands has been represented by the success of their advocacy regarding improving the Dutch asylum policy in favor of the LGBTQ community. In September 2015, the Dutch government changed this policy for LGBTQ applicants from Russia, deeming them a ‘group at risk’ and as such, the Dutch authorities can no longer suggest moving to other parts of Russia for safety. (ILGA-Europe, 2016, p. 125)

Freedom of assembly In April 2007, COC Nederland put together a public demonstration, protesting the so-called ‘weigerambtenaren’, civil servants around the country who refuse to conduct same-sex marriages on the grounds of their own religious objections. Also, COC Nederland organised a ‘Poland Week’ demonstration, in order to speak up against the ever-escalating homophobia in Poland whilst manifesting strong support of the Warsaw Pride which was about to take place on the 19th of May 2007. The gatherings took place in The Hague and Amsterdam, on the 15th and 17th of May respectively. (Lawson, R., Barkhuysen, T., Gerards, J., 2008, p. 28) Apart from these occasional demonstrations, the Netherlands has had its fair share of manifestations in favor of the lesbian, gay, bisexual, transgender, queer/questioning community, advocating for recognition and tolerance. The country’s relaxed regulation of public demonstrations, which does not impose obligations to seek permission for any kind of public gathering, but it does require a previous registration for a demonstration, has proven to be highly beneficial for the development of the most prominent assemblies such as We Are Amsterdam Gay Pride and Pink Saturday (Roze Zaterdag). Over the years, the protest aspect of these demonstrations has morphed itself into a parade character, in order to support the principles of acceptance of the LGBTQ community. (Lawson, R. et. al., 2008, p. 27-28) Violent disturbances In spite of the tolerant and open-minded message of these public assemblies, gatherers have occasionally been victims of hate-motivated aggressions that shook the community. In Amersfoort, during the Pink Saturday of 1982, restless bystanders resorted to calling the participants names and striking them with stones. At the sight of these disturbances, the police made haste enforcing a new policy to have a positive obligation to protect the LGBTQ people from the so-called ‘queer bashers’. (Lawson, R., 2008, p. 29) More recently, in April 2016, a lesbian couple was attacked in Groningen by three men while walking home hand in hand after a night out. The attackers used discriminatory language against the two women before leaving them severely injured; one of the victims was hospitalised. The same year, in October, a gay couple was beaten on a ferry in Amsterdam after a similar streak of hate-fueled speech was used during the attack. (ILGA-Europe, 2017)

2. NATIONAL ORGANIZATIONS SUPPORTING THE COMMUNITY IN ROMANIA AND THEIR OPPONENTS

When it comes to a more conservative society such as Romania, with traditional views deeply ingrained in its mentality, the voices of those asking for tolerance and recognition will inevitably be heard even further. Most of these voices can be found inside and around ACCEPT, the most active NGO supporting the rights and freedom of the Romanian LGBTQ community. Started in 1994 as a small initiative group called ‘Bucharest Acceptance Group’, they managed to put together in 1995 a conference dubbed “Homosexuality – a human right?”. Government officials, Church representatives and human rights advocates all came together in May that year for the debate, which led to the positive outcome of having a small group of supporters to commit to a stable, independent organisation. On the 25th of October 1997, ACCEPT was registered as a human rights NGO. (ACCEPT Association, 2019) In 1997 the newly founded ACCEPT Association initiated a national and international campaign to revoke Article 200 of the Romanian Penal Code which punished same-sex relationships under the provisions of criminal law. Following this campaign, the article was finally declared to have been revoked on the 30th of January 2002. (ACCEPT Association, 2019) They align their vision of acceptance to a set of clearly stated objectives such as defending through all legal means the fundamental rights and freedoms of the lesbian, gay, bisexual, transgender, queer/questioning community, educating the Romanian society and mass-media regarding the needs and interests of the LGBTQ people, and nonetheless developing services and programmes that cater to the needs of Romanian LGBTQ individuals. ‘Education in Diversity’ (Educatie pentru diversitate) can be found among their successfully implemented projects, which supported the community through various coaching sessions offered to school teachers and pupils. (ACCEPT Association, 2019) Public demonstrations Ever since 2004, the ACCEPT Association has put together a manifestation in favor of the LGBTQ community which was firstly called ‘The Festival of Diversity’, but later adopted the less subtle ‘GayFest’ moniker. In 2005, Romania also saw its first Gay Pride Parade in Bucharest, as part of the aforementioned supporting festival. (Bucharest Pride, 2019) In 2019, under the name ‘Bucharest Pride’, the parade has seen its highest attendance yet, with nearly ten thousand people strolling down Victoriei Avenue to manifest their support of the whole Romanian LGBTQ community. (Iosip, F., & Cioponea, S., 2019) These manifestations for tolerance have also started, slowly but surely, to spread around other important cities such as Cluj-Napoca, with its ‘Cluj Pride’ parade. Since 2017, the LGBTQ community in Cluj has made itself noticed along the Somes river in the city, 2019 being the first year when the local authorities gave them permission to organise the assembly in the center of the city, at Union Square. (stiridecluj.ro, 2019) Opponents

Given the conservative and religious character of society in Romania, these advocates of tolerance have found themselves strong opposition in the country, through various ultranationalist and religious groups which are bound to visibly express their points of view against the LGBTQ community in order to preserve what they perceive as traditional values. For some years now, multiple far right extremists, Church advocates and Orthodox religious practicants have seized whatever opportunity they deemed appropriate in order to counter the message of these pro-LGBTQ gatherings, by putting together parades with the sole purpose of propagating the values that they considered to be fundamental to the people of Romania. As such, starting in May 2005, in the midst of the first Gay Pride parade that Romania had seen, small opposing groups have gathered along to protest against gay people in the name of Christianity. In that year, the New Right (Noua Dreapta), a neo-Nazi, white supremacist initiative tagged along to disrupt the course of the parade, ending in the arrest of protester who attacked the LGBTQ supporters with a lit torch, while the leader of the group, Tudor Ionescu, was fined for ‘initiating an unauthorized demonstration’. The same day, another assembly organised by the Conservative Party attracted several participants who gathered around an Orthodox priest, listening to him while he condemned homosexual behaviour. (Stan, L., & Turcescu, L., 2007, p. 180) In the years that followed, the New Right took to oppose every major pro-LGBTQ manifestation through significant counter-demonstrations which the organizers dubbed the ‘March for Normality’ (Marsul Normalitatii)(BBC Romanian, 2006). In 2006, the New Right along with twenty two other civic initiatives addressed the Romanian Orthodox Church, asking to ban the upcoming Gay Pride parade. Violent display of hate As presented above, most of these protesting counteractions were emphasized through violent verbal and physical aggressions towards the supporters of gay rights. Most notably, the case of two gay men beaten after the Gay Pride march in 2006, for which the state of Romania was subsequently fined in 2016 on the grounds of violating the European Convention for Human Rights (M.C. AND A.C. v. ROMANIA, 2016). On June 3rd 2006 the two men participated in the annual gay march in Bucharest. At the end of the march, the men and four other participants left the area using the routes and means of transport recommended by the authorities in the guidelines prepared by the organisers for march participants. After boarding a subway train, they were attacked by a group of six young men and a woman wearing hooded sweatshirts. The attackers approached the victims directly and started punching them and kicking their heads and faces. They also swung from the metal bars above their heads, kicking their victims. During the attack they kept on shouting: “You poofs go to the Netherlands!” (Poponarilor, duceţi-vă în Olanda!). The attack lasted for about two minutes. On their way out of the carriage, the attackers punched the first applicant again in the face. The other passengers withdrew to the opposite side of the carriage during the attack.

Among them was a photographer, who had also been at the march. The victims asked him to take pictures of the incident, which he did. As a consequence, the attackers hit him as well. (M.C. AND A.C. v. ROMANIA, 2016) More recently, in 2017, a young man was again attacked in a subway station on his way to the Bucharest Pride parade. Sebastian, twenty five years old and a Journalism student, was intending to develop an article about the march for a school project, when he was approached by a group of men dressed in all black. One of them noticed his rainbow themed suspenders, blocked his way, and punched him in the face without any kind of exchange of words. (Tiță, O., 2017) These situations only stand to show that regardless of how open people are about their orientation, or without any respect to their affiliation with the LGBTQ community, the opposition is so strong that even the slightest impression of gay tolerance may lead to some serious altercations out of which none remain wiser. Coalition for Family Nowadays, the LGBTQ opposition scene has been taken over by one major appearance: the Coalition for Family. This significantly more influent actor has made itself visible back at the end of 2015, when they started a civic initiative with the sole purpose of amending the Romanian Constitution, but it seems as though its roots go even further back. On the 21st of June, 2006, Romania’s Official Gazette included for the first time a citizens’ initiative of amending Article 48 of the Constitution, which makes reference to the Romanian family status, by adding the following paragraph: ‘In Romania, polygamy is forbidden, and marriage is allowed only between a man and a woman’ (În România poligamia este interzisă, iar căsătoria este permisă doar între un bărbat şi o femeie) (Monitorul oficial al României, 2006) This was the first attempt to modify the Constitution article, and the wording of the new paragraph was forwarded by Peter Costea, the spiritual patron of what was to become the Coalition for Family. On the 9th of February 2007, the Romanian Parliament forwards 650.000 signatures that were gathered in support of the motion to the Romanian Constitutional Court in order to be reviewed, only to have the motion denied, on the grounds that the signatures had to be gathered from at least half of Romania’s counties. (Viski, V., 2018) Significantly later, in 2016, the Coalition for Family managed to gather three million signatures from the citizens of Romania in support of their motion to modify Article 48 of the Romanian constitution, to clearly state that ‘the family is based on the freely consented marriage between a man and woman’, whereas to that moment the parties involved in the marriage were defined as ‘spouses’. As stated in the Coalition for Family initiative, its purpose was to ‘explicitly protect the family and the parents’ rights’. (Digi24, 2017) Following the successful submission of the signatures to the Romanian Parliament, the Chamber of Deputies adopted this citizens’ initiative on the 9th of May 2017, leading to what came to be known as the ‘National

Referendum for the Revision of the Constitution’ (Referendumul national pentru revizuirea Constitutiei) (Marinca, I., 2017)

3. ROMANIA’S 2018 REFERENDUM

2018 has proven to have been a crucial year in the field of LGBTQ rights and freedoms, as citizens of Romania were called to cast a ballot on the topic of same-sex marriage, much to the dismay of the whole LGBTQ community. After having been postponed multiple times starting in 2017, the Chamber of Deputies, led by Liviu Dragnea, settled to organise the referendum in October 2018. As expected, this initiative sparked a sense of opposition in several organizations militating for free LGBTQ rights in the country and even abroad. After Liviu Dragnea had publically announced the exact date of the referendum, Amnesty International, together with ECSOL (European Commission on Sexual Orientation Law) and ILGA-EUROPE (European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association), made legal submissions on the 14th of September 2018 on the constitutionality of the 7 October vote. These organisations considered that the referendum could result in making it impossible to protect same-sex unions in the future, given that same-sex couples do not have access to civil partnerships, nor marriage, in Romania. (Amnesty International, 2018) Overview The areas of marriage and family are largely regulated by the Romanian Constitution and the Civil Code. The Romanian Constitution states in its art.48(1): “The family is founded on the freely consented marriage of the spouses, their full equality, as well as the right and duty of the parents to ensure the upbringing, education and instruction of their children.”The drafters’ intention to include “man and woman” in the definition of “spouses” is illustrated by the Civil Code, which was drafted after the Constitution and which speaks, in Article 258 (4), of “the man and the woman united through marriage.” Moreover, Article 259 (1) of the Civil Code states that marriage is “the freely consented union between one man and one woman.” In addition to defining what marriage is, the Civil Code also defines what marriage is not: Article 277 (1) of the Civil Code emphasizes that “marriage shall be prohibited between persons of the same sex.” Furthermore, Article 277 (2) of the Civil Code states that Romania shall not recognize same-sex “marriages” contracted abroad (either by Romanian or foreign citizens). In accordance with Article 277 (3), the same is applicable to civil partnerships. Article 277 (4) of the Civil Code emphasizes that the legal provisions for EU citizens, regarding the free movement of persons in the territory of Romania, are applicable. These provisions should be seen in the light of international and European human rights conventions and related jurisprudence, which make

27 clear that the competence to define and regulate marriage lies with Member States. (Portaru, A., 2017) Development This amendment of the Constitution, being supported by three million Romanian citizens, was registered with the Romanian Senate on the 23rd of May, 2016, while also awaiting review from the Romanian Constitutional Court, which required to confirm the constitutionality of the motion. (Portaru, A., 2017) During the time it took for the Court to decide upon the constitutional aspect of the initiative, many advocates and supporters of same-sex marriage and rights publically considered that this attemptt to amend the fundamental act of Romania was unconstitutional and undemocratic, claiming that it came off as a ‘tyranny of the majority’ and that it encumbered the exercise of fundamental human rights, such as the right to marry and the right to private life. The press release of the Bucharest Pride parade of that year stated that the three million supporters of the amendment were infringing upon the universal human right of having a family, while MozaiQ, a newly formed gay rights NGO, publicly called upon competent authorities to legalize same-sex marriages and civil partnerships. (Portaru, A., 2017) On the 20th of July 2016, the Constitutional Court of Romania ruled that the citizens’ initiative was indeed constitutional, but the reasoning of the decision followed on the 14th of October, and this delay made it impossible for the national referendum to coincide with the parliamentary elections of that year. (Portaru, A., 2017) Finally, following a long series of delays, the referendum was declared to take place in October 2018. Results During the weeks up until the day of the vote, many NGOs, groups and activist organisations took to the public to express their disapproval of the initiative, with people inviting the citizens to boycott the motion by not showing up at the voting stations on the 6th and 7th of October 2018. Several actions to suppress the initiative have even gone viral in the online medium, for all the good and bad reasons, such as a post by 25-year-old gay bar owner and novelist Alex Andronic: “Take the rights I’m already not benefiting from if it calms you down, brings you closer to God, tradition and family welfare, [..]Do exactly as you feel. Because I know what it’s like to be unable to do as you feel.” said his Facebook post, which garnered attention from his supporters but also from multiple hatemongerers who verbally attacked him with homophobic slurs. (Ilie, L., 2018) In the end, during the two-day event, the referendum failed to gather the necessary minimum turnout of 30%, with only 21.1% of citizens showing up to express their opinion on the matter. (Biroul Electoral Central, 2018)

4.Conclusion We can observe that the main associations protecting the rights of the LGBTQ community are the COC in the Netherlands, on one hand, and the ACCEPT association in Romania. Each country has had its fair share of positive actions, but also negative demonstrations against the community. What is interesting to observe is the fact that Romania struggled in the recent years with a rise in the negative opinion on this issue, which led to the formation of the Coalition for Family and the 2018 referendum. It is clear that when in a country where the government itself supports the cause of a direct discrimination against an internationally claimed right, using religion as a means of control of the population that most of the time is uneducated, this will affect every aspect of the life of those affected, including the labour field.

Chapter V. Comparison on the discrimination of the LGBTQ in employment In this chapter, I will try to answer one of the thesis’ sub-questions, namely: “What is the legislation in place for discrimination of the LGBTQ community in employment in the

observed countries and what is the relevant case law in regards to employment and the abuse LGBTQ people experienced at work?”,

1. The Netherlands 1.1 Legislation protecting the rights of the community in employment The Netherlands is one of the countries that is a party to all major international agreements in regards to combating discrimination. Aside from that, relevant clauses are contained in national legislation. The Dutch Constitution contains since 1983 a general non-discrimination clause in Art. 1: “discrimination on grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be permitted.”. As the case-law confirmed, the “other grounds” include sexual orientation, a carefully selected wish of the Parliament. (Lawson, R. et. al, 2008, p.9). The country’s penal code, through Art. 429 quarter suggests that it is a criminal offence to “discriminate against persons on the grounds of their race, religion, beliefs, sex or heterosexual or homosexual orientation”, but only if a person does this in the execution of a “profession, business or official capacity” (Lawson, R. et. al, 2008, p.9). Several civil law provisions also offer protection against discrimination on the grounds of sexual orientation, but the most important document is the 1994 General Equal Treatment Act (GETA) or Algemene Wet Gelijke Behandeling (AWGB) 1994, amended in 2004 (Holtmaat, 2015, p.6). The GETA outlaws in its Art. 1. any “direct or indirect distinction between people on the grounds of religion, belief, political opinion, race, sex, nationality, heterosexual or homosexual orientation or civil status” in the field of employment (Art. 5), in the field of the liberal professions (art.6), by organisations of employees, employers or professionals (art. 6a) and in providing goods or services, in concluding, implementing or terminating agreements thereon and in providing educational or careers guidance (Art.7) (Lawson, R. et. al, 2008, p.10). The main issue with the GETA act, compared to other international or Dutch anti-discrimination law, is the fact that in the center of attention we find the concept of “distinction” (onderscheid) rather than the term of “discrimination” (discriminatie), giving the issue in cause a more neutral and open to interpretation significance. (Lawson, R. et. al, 2008, p.11). The art. 5(1) of GETA prohibits discrimination in the context of employment regarding the following areas:

 Public advertising of employment and procedures leading to the filling of vacancies  The services of an employment agency  The commencement or termination of an employment relationship  The appointment and dismissal of civil servants  Terms and conditions of employment

 Permission for staff to receive education or training during or prior to the employment relationship  Promotions  Working conditions (Lawson, R. et. al, 2008, p.12). There are three limitations of the scope of GETA. The first one is that the act is not applicable regarding the internal affairs of churches and religious communities. Second, it stands without tainting the already existing sex discrimination law and lastly it is not applicable to the internal affairs of associations nor to unilateral acts by public officials of government bodies. (Holtmaat, 2015, p.8). Regarding dismissal, the GETA act doesn’t mention sexual orientation explicitly as a prohibited ground for dismissal, but we can interpret art. 1 and 5.1(f) to make it an invalid reason for discrimination regarding the termination of the employment. Section 5 of the Act states that it is also unlawful to discriminate in or with regard to advertisements for job vacancies and procedures leading to the filling of vacancies and also regarding promotion. (GETA, 1994). In order to enforce the equal treatment standards, there are no special judicial procedures, normal civil or administrative procedures can be used. (Holtmaat, 2015, p.8) What is interesting is the existence of the Equal Treatment Commission (ETC) or Commissie Gelijke Behandeling, a semi-judicial independent body, with non-binding case law, but nevertheless authoritative. (Lawson, R. et. al, 2008, p.17). Until 2012, when this institution merged with The Netherlands institute for Human Rights (College voor de rechten van de mens), the ETC could conduct an investigation on its own initiative, or could receive a written request from someone who thought they suffered a prejudice in form of discrimination, but also from institutions that wanted to know whether they themselves made a prohibited action against someone. Courts and works councils as well as associations or foundations promoting the interests of people protected by the Act could request an investigation. (Lawson, R. et. al, 2008, p.17). The procedure was free of charge and it didn’t require legal representation (Lawson, R. et. al, 2008, p.18). The Netherlands Institute for Human Rights is an independent supervisor of human rights in the European part of the Netherlands, as well as the islands of Bonaire, St. Eustatius and Saba and it helps shedding light on human rights issues, protecting, monitoring and advancing them (The Netherlands Institute for Human Rights).

1.2. Case law in the Netherlands A. Judgment number 2004-104 of the ETC

In this case, the ETC conducted an investigation in order to find out, at the applicant’s request, if discrimination took place on the basis of homosexual orientation by not carefully handling a complaint about discrimination and also in respect to Art. 8a of the GETA act, that states: “it is unlawful to disadvantage persons because they have invoked this Act, either in or out of court, or have assisted others in this connection”. (Oordeel 2011-71, 2011) The applicant was a man working in a healthcare institution as a counselor for psychiatric patients. He made a complaint to his team leader regarding a colleague that called him a “fruit fly” in a meeting, words accompanied by an effeminate hand gesture, and later he noticed the food he put in the fridge was taken away. Given his open sexual orientation - gay -, he immediately filed a complaint to his team leader. (Oordeel 2011-71, 2011)

At the end of the month, he was informed that the institution does not want to collaborate with him anymore. The petitioner argued that the defendant didn’t handle his complaint of discrimination with care by not conducting an investigation and not giving a feedback on the results of such investigation. He also claimed that because he filed the complaint, he was disadvantaged in front of the institution that subsequently decided not to make use of his services. (Oordeel 2011-71, 2011) The defendant stated that following the complaint of the applicant, the team leader conducted interviews with members of the team, receiving so many negative reviews about the attitude of the applicant, that he investigated all members and concluding the applicant was a disruptive factor in the team. All members, except one, claimed they did not know about the discriminatory incidents raised by the applicant and even the manager said he did not recall the event in the specific meeting. (Oordeel 2011-71, 2011) The Equal Treatment Commission expressed in its opinion that the institution had made a prohibited distinction on the basis of homosexual orientation with regard to working conditions by insufficiently handling his complaint about discrimination. The team leader merely informed the employee of the fact his services would no longer be needed, and did not give him any feedback regarding the investigation process or conclusion. (Oordeel 2011-71, 2011) The team leader also admitted that if the applicant wouldn’t have made a discrimination complaint, probably the collaboration wouldn’t have ended. Therefore, the ETC also claimed that the defendant acted contrary to the prohibition of victimization in art. 8a of the GETA act. (Oordeel 2011-71, 2011) B. Judgment number 2004-104 of the ETC In this case, the applicant is the owner of an architectural company, who addressed the ETC stating that the defendant (also an architectural firm) terminated the negotiations for a cooperation agreement because of his sexual orientation. (Oordeel 2004-104, 2004) Following an advertisement posted by the defendant, the plaintiff responded in order to guarantee the continuity of the defendant’s business. After a total of six interviews, a fax was

32 sent to the plaintiff with the points to be discussed for a cooperation agreement. An advisor of the defendant, on the same day, asked the plaintiff if he was having a homosexual relationship, to which he responded affirmative. Three days later, following a weekend, the defendant sent a fax to the applicant stating that she wished to refrain from further negotiations, the reason for this being that she no longer had a sufficient basis of trust for the developments of the collaboration. (Oordeel 2004-104, 2004) The defendant claimed that the reason for the termination of the cooperation agreement was not due to the sexual orientation of the applicant. Apparently, a previous copyright issue with a former partner of the applicant, combined indeed with the fact that when asked about the marital status, he referred to his partner as being a “she”, or at least he did not correct the person in the interview, who assumed that his partner is a woman, therefore lying about his situation. Moreover, when he was finally asked on the last interview if his partner was a man, he seemed angry about the question and responded in an inappropriate tone that it was affirmative. This reaction caused a disappointment in the defendant, who by now lost the trust needed for giving her life’s work to the applicant. The defendant also agreed that she did not try to clarify with the applicant the copyright situation with his former partner. (Oordeel 2004- 104, 2004) The defendant also argued before the ETC that the applicant’s query is inadmissible in regards to the art.5 and art.6 of the GETA act. The commission ruled that these articles apply also in this case, granting protection to the applicant. In the letters exchanged, the defendant presented a three steps plan towards a final collaboration. The first phase involved a trial period in which the applicant would become an employee and if the outcome would have been possible, they would move to the second phase – a transition period that would last one year, after which the final partnership would be concluded – a position of co-director and co-owner of the firm. This plan could have been followed to trace the actual professional skills of the applicant. (Oordeel 2004-104, 2004) Given the short period of time from the minute the defendant clarified his sexual orientation and the abrupt way the collaboration ended, the ETC ruled that this was indeed a distinction made based on the sexual orientation by breaking off the negotiations in that partnership. (Oordeel 2004-104, 2004) C. Judgment 2010-135 The plaintiff, a homosexual man working as a temporary worker in a kitchen supply store, made a petition to the ETC, where he asked if there was a distinction made by the defendant in regards to his sexual orientation, by giving him special treatment and intimidating him. The second question is whether the defendant breached the law by not handling his complaint with care, and the third question was if the defendant made a distinction when the employment relationship was finished. (Oordeel 2010-135, 2010)

The applicant worked under a six month contract that was renewed two times, before the defendant decided not to continue the collaboration. The petitioner stated that during his working hours, managers and colleagues would start to express discriminatory slogans about his sexual orientation and every time he was around, they would start making effeminate gestures. Whenever a homosexual client would enter the shop, his supervisor would make him serve those customers and then glance at them and make kissing faces. In a meeting, the assistant manager asked how gay people wave, to which all the colleagues and managers waved in a very effeminate way. The assistant manager also stroked the applicant at the photocopier. At some point, the applicant gave his supervisor a newspaper article about sexual discrimination at work, action that should have been interpreted as a complaint about discrimination. (Oordeel 2010-135, 2010)

The actions of his colleagues created for the petitioner a very offensive and intimidating environment, leading to his incapacity to work. In the reintegration process, after the petitioner did not answer a call and was not able to meet with the company’s doctor, the defendant made the decision to not renew his contract. (Oordeel 2010-135, 2010) In this respect, the ETC concluded that the defendant has made prohibited discrimination based on sexual orientation by intimidating him and was therefore in breach of art. 1 of the GETA. The defendant also acted contrary to the law by not treating the complaint with due diligence and made a prohibited distinction when terminating the employment contract with the petitioner, without giving him any feedback on the complaint he had made. (Oordeel 2010-135, 2010)

2. Romania 2.1. Legislation protecting the rights of the community in employment The main legislative document protecting the rights of workers is represented by Romania’s Labour Code, namely the law 53/2003 which enshrines the principle of equal treatment in its Art.5(2) as such: “any direct or indirect discrimination against an employee based on sex, sexual orientation, genetic characteristics, age, national affiliation, race, colour, ethnicity, religion, political opinion, social origin, disability, family situation or responsibility, trade union affiliation or activity shall be prohibited” (Law 53/2003, 2003). The law contains a special provision regarding the verification of skills, claiming that the individual employment contract will be concluded after a check-up of the future employee’s personal and professional skills, according to internal regulations or the collective labour agreement, but “the information requested, in any form, by the employer, from the person applying for employment upon the prior verification of the skills shall have no other objective than to assess the ability to fill in the concerned position and the professional skills” (Law 53/2003, art. 29(3), 2003)

Regarding dismissal, art. 59(a) states that the dismissal of the employees shall be prohibited: “based on sex, sexual orientation, genetic characteristics, age, national affiliation, race, colour, ethnicity, religion, political option, social origin, disability, family situation or responsibility, trade union affiliation or activity.” (Law 53/2003, 2003). The settlement of the wage also enjoys the protection of the law through art.159(3), claiming: ”when setting and providing the wage, any discrimination based on sex, sexual orientation, genetic characteristics, age, national affiliation, race, colour, ethnicity, religion, political option, social origin, disability, family situation or responsibility, trade union affiliation or activity shall be prohibited.” (Law 53/2003, 2003). 2.2. Case law A. Accept vs. the National Council For Combating Discrimination Although in theory Romania’s legislation seems to grant protection against abuses towards people belonging to the LGBTQ community, in practice we can observe there is still a long way until these people can enjoy the freedom they are entitled to. One of the most interesting cases in the matter of sexual orientation in the context of hate speech in regards to the employment of a professional football player in a national team, is the case ACCEPT vs. the National Council for Combating Discrimination. The Accept Association promoting the LGBTQ rights filed a complaint before the National Council for Combating discrimination against Mr. Becali, the sponsor of FC Steaua football club, who in public proclaimed himself as patron of the club, and against the team itself. (Pudzianowska, D. et al., 2015, p.48). Mr. Becali made a public statement in an interview about the possible transfer of a professional football player to his club and the assumed sexual orientation of that player, among many comments, he claimed that he would rather employ a junior player or shut down the club completely rather than accepting a homosexual in the team. (Pudzianowska, D. et al., 2015, p.48) The Court of Justice of Romania asked the CJEU for a preliminary ruling in regards to the interpretations of a few aspects of the Employment Equality Directive, mainly the burden of proof and the establishment of facts from which it can be assumed that there have been acts of discrimination made by the employer (Pudzianowska, D. et al., 2015, p.48).

CJEU ruled that in specific situations, an employer can be held responsible for discriminatory acts made by a third person, like in the ACCEPT case - especially when the employer didn’t distance himself from a person’s statement that also has a publicly known influence within the club. The judgment also endorsed the fact that discriminatory allegations are capable of forming acts of direct discrimination, and the judgment gave the prohibition of homophobic speech an almost exact identity to that of racist speech (Pudzianowska, D. et al., 2015, p.48).

It is important to observe that some of the influent public persons in Romania do not censor themselves in opinions of this kind and it is a clear representation of the level of acceptance in this country.

3.Conclusion It can be observed that the main documents regulating the non-discrimination in regards to sexual orientation in employment is the GETA in the Netherlands, on one hand, and the Law No. 53/2003 in Romania, on the other hand. The Netherlands also enjoyed the protection of these rights through a special entity, represented by the ETC, which helped conduct individual investigations or receive written requests from persons and institutions in regards to discrimination in employment and played a great role in providing the people the assistance they need in discrimination cases, until it was incorporated in The Netherlands institute for Human Rights (College voor de rechten van de mens). As we have observed, with the help of ETC, and later – The Netherlands institute for Human Rights - a lot of people found their answers and protection they often find themselves in need to and they are not afraid to make use of it.

The paucity of the case law in Romania can be explained by the fact that although people are in theory protected by the law against abuses based on the grounds of sexual orientation or gender identity, most of them choose to keep these traits to themselves, either because of non- awareness in regards to these laws, the fear that they would not afford the judicial taxes and the fear of failure, but mostly because of the fear of resistance and judgment they would suffer in the workplace once they “come out” to their employers or colleagues.

Chapter VI. Conclusion

1. Conclusion The thesis aimed to identify the main differences and similarities between Romania and the Netherlands regarding the discrimination of the LGBTQ community in the working environment. The objective was to analyze the causes of this phenomenon, the way it unfolded in both countries, in order to first understand the way this happened and also to provide certain solutions for this issue.

The subject is of great importance even today, as many people belonging to this community are still the target of hate speech and violent criminal acts, their fundamental rights, such as the right to private life, family, decency or social security are often violated. As presented in chapter II, historical differences had a big impact on how discrimination has taken place in regards to this matter in the two countries. The Netherlands enjoyed a more liberal way of thinking and more support from the country’s institutions, being them religious or political. Private life was protected and encouraged most of the time and people seemed keen to accept the LGBTQ community thinking that it is better to be accepted in specific places, rather than out of control by being suppressed.

Romania’s population, on the other hand, was controlled by communism in every aspect, especially private life, by adopting neo-natal policies, the prohibition of abortion or sexual intercourse between same sex people. With such laws that brought criminal charges for people who didn’t obey them and oftentimes the judgment of most of the population, anything regarding to sex became a stigma, and especially homosexuality. Later discoveries of sexuality or gender classification became harder and harder for people to understand and accept, as the mentality was transmitted to the following generations. In my opinion, this is the main reason why Romania struggles today a lot more on this subject than the Netherlands, as homosexuality is not a new concept, just the views on it differed a lot throughout history and the political, religious and judicial institutions influenced its course in a major way. In chapter III, we observed that we do have instruments that protect this community against discrimination, such as the EU Charter of Fundamental Rights, The Treaty on the Functioning of the European Union, the Yogyakarta Principles and most importantly for the labour field – The Directive 2000/78/EC. They all state the protection against discrimination of the LGBTQ community or set boundaries or goals regarding this matter.

Moving further to chapter IV, I illustrated the main organisations handling LGBTQ issues, such as COC Nederland in the Netherlands, and the ACCEPT association in Romania. COC Nederland was founded in 1946 and it’s one of the oldest organisations fighting for LGBTQ rights. One of COC’s pillars of activism – the multicultural society and international solidarity, is aimed at improving the position and integration of the LGBTQ people in labour, having had coaching programmes in this respect in more countries experiencing difficulties regarding the views on this issue, including Romania. Moreover, COC improved the Dutch asylum policy in favor of the LGBTQ community. Despite the public demonstrations in support of this community, violent disturbances also happened in the Netherlands, proof that a population in its entirety, no matter how much freedom the laws provide, will never be homogeneous, although the Netherlands remains a reference point for every country that aspires to be more inclusive regarding this aspect.

The ACCEPT Association was founded in 1997, becoming a human rights NGO, providing support for the people belonging to the LGBTQ community, through services and programmes for those in need. The most important step the association took regarding this aspect, was the national and international campaign to revoke Art. 200 of the Romanian Penal Code, that punished same-sex relationships under the criminal law. As a result of the campaign, the article was finally revoked on the 30th of January 2002. Since 2004, the ACCEPT Association organizes a manifestation in favor of the community every year, and the event started to spread around other big cities around the country. Opposed to the Netherlands, Romania witnessed more violent displays of hate regarding this matter, especially at public gatherings that support LGBTQ rights. Moreover, a new association called Coalition for Family has been a very loud and influent actor on the LGBTQ scene, in 2016 gathering three million signatures in order to modify the Art. 48 of the Romanian Constitution, for it to clearly state that “the family is based on the freely consented marriage between a man and a woman”, whereas until then the parties were defined as “spouses”. This lead to what it is now known as the “National Referendum for the Revision of the Constitution”, held on the 6th and 7th of October, 2018. In the end, the referendum failed to complete the necessary minimum of 30%, with only 21,1% of citizens showing up to express their opinion. In chapter V, I illustrated the most important national legislation present in each country, namely the General Equal Treatment Act in the Netherlands, and the Law no. 53/2003 in Romania, that both grant protection against discrimination based on sexual orientation. The Netherlands also benefited from the help of what was called the Equal Treatment Commission, a body that could conduct individual investigations or could receive written requests from persons and institutions in regards to discrimination in employment. Since

2012, this body merged with The Netherlands institute for Human Rights (College voor de rechten van de mens). In Romania, it appears that people are a bit more reluctant to use the judicial means towards combating this form of discrimination. And they have their reasons. The 2018 referendum was a proof of how many people are still not willing to accept or include LGBTQ people, even if that means no extra effort from them, maybe to only give up on the publicly addressed hypothetical wars. Aside from that, this issue affects mostly youngsters that still depend on their family for housing and education, and the truth is that it is not so common for young people to become independent so fast, as in the Netherlands. The parents often have the same views on homosexuality as the rest of the population, or if not, they are still hurt by the idea that their children will be forced to live in such a hateful society. In my opinion, Romania has a lot to learn from the Netherlands, from the more open- minded views on this subject, the possibility of concluding a marriage, to the extra protection guaranteed in employment by the Equal Treatment Commission. 2. Predictions and recommendations All’s well that ends well, if we take a look at the failed 2018’s referendum. This means that Romania might still have a chance towards a healthy progress from now on, with the right leaders. This might happen slowly but steadily, especially with the recent events in the country, with Klaus Iohannis winning the elections against PSD’s Viorica Dancila, and the censure motion against this party’s government policies, that managed in the past four years to gain itself the fury of the entire nation. Unlike before, the country’s population became more united than ever and certain issues such as discrimination are not taken as lightly as before. What has to change is the mentality of people, that are often raised to judge, instead of focusing on more important things such as education, progress, standards or elevated needs and how to achieve them, but this will need a bit more time. The general mindset seems to be moving forward with the new generation. In the big cities, with the help of corporations and the general international standards they use, people seem to be more accepting towards one another. Campaigns such as “Great place to work” conduct anonymous interviews where people can review the place they work at, and position it in a list at an international scale. Therefore, it is in the company’s advantage to make sure its employees feel safe and happy. My first recommendation towards the discrimination that people experience in employment on the motive of their sexual orientation is to take the courage to speak up and not accept it anymore. This is the most important step towards it becoming a precedent and setting an example for as long as people begin to realize that this is a commonly unaccepted thing to do. Most of the companies have HR representatives that can try to

39 alleviate the conflicts. Where that’s not possible, even if it means sacrificing a few resources, it is time for the citizens to know their rights and take what’s theirs through the help of court resolutions. Another recommendation is aimed at companies in general, that should promote diversity and encourage it by all means, through awareness campaigns, dedicated team buildings or activities and an open-door policy with the management regarding discrimination aspects. The role of the management is crucial, if it’s an important thing for the management, it will be for the rest of the team as well. Regarding this aspect, I remember an episode from the first job I got in Bucharest, one of the episodes that made me want to study labour law issues. My manager, during a break, without prior talk about this subject, said that she can’t stand homosexuals, adding that she is sorry, she knows some people have other opinions on this, but she just can’t stand them. At that moment, we already had two gay people in the team, who told me that during a basic conflict with one of them, she aggressively whispered to the team leader: “what does this homosexual want?”. Ironically enough, several months later I recommended my friend, who happened to be gay and he soon became one of her personal favorites in the team. I recently experienced something similar at a temporary job. My boss asked me what is my thesis’ subject, and after explaining it’s about the discrimination of the LGBTQ community in employment, he said “Well, they sure make it easy to discriminate.”. I understand this is a sensitive subject around the whole world and although in some places, including Romania, even if it’s not accepted by everyone, there should be at least a limit where this characteristic of a person should really not matter at all. One of the most important places where the limits should apply is the working environment. We spend most of our lives working, time spent at work with our colleagues is oftentimes longer than the one we can offer to the people we love. If that environment is causing stress or making a person feel unaccepted, uncomfortable and even bullied, it is a serious issue that the management should be responsible for. In my opinion, the aversion people have is often only a prejudice. If people would take the time to understand the other side as well or get the time to know a person belonging to the LGBTQ community just like they would with any other person, things would be easier for everyone. Public persons should be more careful about the comments they publicly make, especially since young people are easily influenced and this hate is a totally unnecessary hate, but it can spread rapidly if encouraged. The last recommendation is also the simplest, a call for empathy in every human. This can mean a lot of things, but mostly putting yourself in the other person’s shoes, thinking a bit

more logical, being careful where the votes go and basically just having only a common universal goal in mind: let’s not raise children that have to recover after their childhood.

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Case law: Accept v. Consiliul National pentru Combaterea discriminarii, case C-81/12 Oordeel 2004-104 (Commissie Gelijke Behandeling 2004). Oordeel 2010-135 (Commissie Gelijke Behandeling 2010).

Oordeel 2011-71 (Commissie Gelijke Behandeling 2011). M.C. AND A.C. v. ROMANIA (European Court of Human Rights July 12, 2016)