The gays’ and lesbians’ rights in an enlarged European Union Edited by Anne Weyembergh, Sinziana Carstocea ISBN 978-2-8004-1367-9 © 2006 by Editions de l’Université de Bruxelles Avenue Paul Héger 26- 1000 Bruxelles (Belgique) [email protected] http://www.editions-ulb.be Imprimé en Belgique Acknowledgements This collective book is the result of a conference held in Brussels in December 2003 under the title: “Les droits des gays et des lesbiennes dans une Union européenne élargie /Gays’ and Lesbians’ Rights in an Enlarged European Union”. Organized by the Legal Department of the European Studies Institute and the GASPPECO (Groupe d’Analyse Socio-Politique des Pays d’Europe Centrale et Orientale) research group of the Université Libre de Bruxelles, this seminar brought together researchers from all over Europe. All of the articles in this collection were submitted for publication prior to May 2005. Several contributions, not only financial, but also collaborative, made the conference and this book possible. We would like to mention here the financial support received from the ULB education authorities, from the Communauté française, from the National Fund for Scientific Research (FNRS), from the Cabinet du Secrétaire d’Etat aux Affaires européennes, and from the Programme Pôles d’attraction interuniversitaire P4/04- Etat belge, Service du Premier ministre – Services fédéraux des affaires scientifiques, techniques et culturelles, du ministère de l’Education, de la Recherche et de la Formation de la Communauté française de Belgique. The editors’ special thanks go to Mr Jean Michel De Waele, Director of the GASPPECO, for without his enthusiasm, his passion for research, his open- mindedness and his savoir-faire this project would not have come to fruition. He strongly believed in our collaborative project and always found good solutions to any problems we encountered. Grateful thanks are also due to Mr Eddy Caekelberghs for the support he offered in organizing the seminar in December, for his élan and his trust. Introduction Anne WEYEMBERGH & Sînziana CÂRSTOCEA A great number of important legal developments in the protection against discrimination based on sexual orientation have recently become apparent at the European Union level. Essential social and legal changes concerning gays and lesbians have also been observed at the national level within Europe. In this regard, the recognition of same-sex partnership in several Member States is quite eloquent. The progress achieved in this field shows the importance taken by the “homosexuality issue” both at the EU level and at the national level of the Member States. This collective book aims at offering a scientific analysis of this impressive evolution. Its purpose is to focus on less known and less studied aspects of the process. Among the principal questions analysed, it is worth mentioning the interactions between the decisions adopted within the EU framework and the changes introduced at the national level. A number of European measures must be implemented in the national legislation of the Member States and of those acceding to Member status. This is especially true for European anti-discriminatory regulations, which have had a harmonizing effect on the States’ national laws. Non-binding texts, such as recommendations, have also had an approximating impact on the Member States’ legislation. However, as most of the contributions show, resistance to the implementation of European guidelines in the area remains quite strong. Another significant issue tackled by the authors is the relationship between the written norms on the one hand and their being put into practice on the other. This is particularly important because a discrepancy between both could question the role of legislation as well as the legislation’s or, more generally, the law’s interaction with society. Most of the contributions in this volume approach these substantive issues through the study of specific cases. These cases are usually related to one field in particular – as, for example, non-discrimination on the basis of sexual orientation or same-sex 10 INTRODUCTION INTRODUCTION 11 partnership – and/or to the specific situation in a given Member State or candidate country. The book is characterized by its international and multidisciplinary nature. The authors, who come from various countries, are lawyers, sociologists, political scientists or journalists. This explains not only the broad spectrum of issues covered but also the various points of view or methods in analysing the cases dealt with. This volume has a three part structure, as follows. The first part brings together contributions related to gays’ and lesbians’ situations in the fifteen Member States of the European Union. A first group of four contributions aim at analysing the legal situation and the improvements accomplished in order to outlaw discriminations on the basis of sexual orientation within the European Union. Kees Waaldijk, senior lecturer at the E. M. Meijers Institute of Legal Studies of the Universiteit Leiden, gives an accurate inventory of the existing legislation against sexual orientation discrimination in employment in the fifteen Member States of the European Union. The author concentrates on the implementation of the Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, which was supposed to be enforced at national level before 2 December 2003. The article offers a detailed overview of the amendments and new legal provisions introduced in the fifteen countries. Three case studies follow regarding France, Sweden and Greece. Daniel Borrillo, senior lecturer at the University of Paris X-Nanterre and associate researcher at CNRS (Centre National de la Recherche Scientifique), makes a survey of the legal situation of gays and lesbians in France. The French situation, as summarized by the author, could read “the individual gets everything, the couple gets only a little and the family gets nothing”. Daniel Borrillo examines legal, historical and sociological aspects of the situation of gay and lesbian people: first the homosexual individual, then the same-sex couple and finally the homo-parental family. Hans Ytterberg, associate judge of appeal and Sweden’s Ombudsman against Discrimination on grounds of Sexual Orientation, presents the development of Swedish law with respect to non-discrimination and sexual orientation. Arguing that the impact of accomplishments at European level on this particular Member State’s legislation has been weaker and more indirect than in several other Member States, the author first gives a general outline of the historical evolution in Sweden. In a second part of his paper, he focuses on a more specific topic, namely the setting up of the Ombudsman Office against Discrimination on grounds of Sexual Orientation, discussing the status both in concept and in practice. The first group of articles closes with the contribution of Matthaios A. Peponas, a lawyer from Athens who offers a short but comprehensive historical overview of the legal evolution in Greece, pointing out the most significant stages of legal development concerning same-sex relationships and anti-discrimination on grounds of sexual orientation. Essential elements are emphasized, as, for instance, the influence of religion on the acceptance of homosexuality or the discrepancy between societal norms and law when alternative sexual lifestyles are concerned. The first part of the book then contains a second group of articles, which take a closer look at an issue that has been widely discussed over the last years in Member 10 INTRODUCTION INTRODUCTION 11 States of the European Union: the homosexual couple. Firstly, Frédéric Jörgens, PhD candidate at the European University Institute of Florence, focuses on the tension between law and social norms. He explores the question of the same-sex partnership taking into account the connections between legal recognition, social acceptance and representation of homosexuality. Basing his analysis on interviews made in four main cities of Europe (Paris, London, Berlin and Rome), the author examines the confrontation of the real-life experiences of gays and lesbians with legal options, from a sociological point of view. Moreover, he considers an auxiliary question referring to the possible consequences of the social environment for the construction of individual identities. Secondly, David Paternotte, PhD candidate of the Université Libre de Bruxelles, deals with the process of legal recognition of same-sex couples in Belgium. The main focus here is so-called “inclusion models”, namely the different ways of materializing specific definitions of equality in order to include more fully marginalized social groups into the polity. Adopting a theoretical and abstract approach based on discourse analysis, the author investigates whether the opening-up of civil marriage to same-sex couples constitutes an answer to a claim for equality and/or corresponds to the affirmation of a specific identity. The second part of the volume addresses a less considered problem, namely the situation of sexual minorities in the new Member States. Is there a better place for gays and lesbians? Three different testimonies, realized with different instruments, attempt to provide an answer to this question. In a complex sociological approach to the Slovenian situation, Roman Kuhar, researcher at the Ljubljana Peace Institute, turns his attention to the current legal and political condition