Mapping of studies on the difficulties for LGBTI people in cross-border situations in the EU Written by Dr. Neža Kogovšek Šalamon November 2019 Justice and Consumers Mapping of studies on the difficulties for LGBTI people in cross-border situations in the EU EUROPEAN COMMISSION Directorate-General for Justice and Consumers Directorate D — Equality and Union citizenship Unit D.1 Non-discrimination and Roma coordination European Commission B-1049 Brussels EUROPEAN COMMISSION Mapping of studies on the difficulties for LGBTI people in cross-border situations in the EU Directorate-General for Justice and Consumers Mapping of studies on the difficulties for LGBTI people in cross-border situations in the EU Europe Direct is a service to help you find answers to your questions about the European Union. Freephone number (*): 00 800 6 7 8 9 10 11 (*) The information given is free, as are most calls (though some operators, phone boxes or hotels may charge you). This report has been prepared for the European Commission however it reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein. More information on the European Union is available on the Internet (http://europa.eu). Luxembourg: Publications Office of the European Union, 2019 Print ISBN 978-92-76-14310-9 doi:10.2838/600144 DS-04-19-781-EN-C PDF ISBN 978-92-76-14309-3 doi:10.2838/64276 DS-04-19-781-EN-N © European Union, 2019 Reproduction is authorised provided the source is acknowledged. Mapping of studies on the difficulties for LGBTI people in cross-border situations in the EU Tender No. JUST/2018/RDIS/PR/EQUA/0089 “Mapping of studies on the difficulties for LGBTI people in cross-border situations in the EU” FINAL REPORT dr. Neža Kogovšek Šalamon, Senior Scientific Associate in Law Members of research team: dr. Veronika Bajt, sociologist; Saša Panić, data analyst Peace Institute – Institute for contemporary Social and Political Studies Ljubljana, Slovenia November 2019 1 Mapping of studies on the difficulties for LGBTI people in cross-border situations in the EU Contents 1. INTRODUCTION ..................................................................................................... 3 2. METHODOLOGY ..................................................................................................... 4 3. SUMMARIES OF IDENTIFIED STUDIES ...................................................................... 6 3.1. Multiple Fields .............................................................................................. 6 3.2. Marriage/Partnership Recognition ................................................................. 13 3.3. Property and Succession .............................................................................. 16 3.4. Adoption .................................................................................................... 17 3.5. ART/IVF and Surrogacy ............................................................................... 18 3.6. Transgender and Intersex Persons ................................................................ 18 3.7. Asylum ...................................................................................................... 23 3.8. Theoretical Perspectives on Policy Changes Concerning LGBTI .......................... 24 4. ANALYSIS: OVERVIEW OF STUDIES’ FINDINGS ....................................................... 29 4.1. Marriage/Partnership Recognition ................................................................. 31 4.2. Property and Succession .............................................................................. 34 4.3. Adoption .................................................................................................... 35 4.4. ART/IVF and Surrogacy ............................................................................... 36 4.5. Transgender and Intersex Persons ................................................................ 39 4.6. Asylum ...................................................................................................... 40 4.7. Other Findings ............................................................................................ 41 5. RECOMMENDATIONS FOR FURTHER RESEARCH ....................................................... 43 Mapping of studies on the difficulties for LGBTI people in cross-border situations in the EU 1. INTRODUCTION LGBTI persons are among the groups most exposed to discrimination in the European Union. To address this problem, the European Commission published in December 2015 the List of Actions to Advance LGBTI Equality, of which this mapping study is a part.1 The study aims to identify research and studies of the difficulties that LGBTI individuals and their families encounter in their daily lives in cross-border situations and free movement in the EU. Currently, 14 EU Member States provide marriage for same-sex couples (Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Luxembourg, Malta, the Netherlands, Portugal, Spain, Sweden and the United Kingdom). In another 8 Member States, same-sex couples can enter a registered partnership (Croatia, Cyprus, the Czech Republic, Estonia, Greece, Hungary, Italy and Slovenia). At present, 6 Member States provide no legal recognition for same-sex couples (Bulgaria, Latvia, Lithuania, Poland, Romania and Slovakia). Member States also have different procedures for transgender and intersex people to get their preferred gender legally recognised. Due to the differences between EU Member States in legal recognition for same-sex couples, LGBTI individuals and their families may encounter difficulties when travelling, moving to or residing in other EU Member States that different-sex couples do not experience. They may encounter difficulties in such areas as recognition of their relationship, divorce and separation, immigration, children’s rights, parental responsibility, reproductive rights, employment benefits and pension, property regimes, taxation, inheritance, recognition and enforcement of rights and obligations, and possibly other areas. The report maps existing studies and research that have been conducted so far by researchers and scholars working in this field in the European Union. As presented below, substantive research and analysis exists primarily in the field of recognition of marital and partnership status obtained in one EU Member State after moving to another EU Member State. This is because recognition of relationships was subject to discussions for many years culminating with the judgment of the Court of Justice of the European Union (CJEU) in the case Coman and Others v. Romania. Some literature exists in the fields of cross-border situations stemming from ART/IVF procedures, adoption and surrogacy, as well as on issues related to asylum. Very few comprehensive sources that address a cross-border element exist in the fields of property, succession, taxation, inheritance, employment benefits and pensions. One of the possible reasons is that the treatment of LGBTI persons in these fields depends on whether or not their legal status of being a spouse or a registered partner is recognised. However, in this context, an area that needs to be further explored is whether recognition of status also secures the rights deriving from this status. There is also a lack of comprehensive and comparable information from all EU Member States on their respective administrative and judicial practices in the fields of recognition of marital or partnership status, recognition of birth certificates, and documents recognizing parental rights to LGBTI couples obtained by either law, administrative decision or court decision. Hence, the implementation issues would be worthwhile exploring in the future, especially since the CJEU pointed out in the Coman judgment that the term “spouse”, within the meaning of the directive 2004/38, was gender-neutral. There is a lack of studies concerning transgender people in cross-border situations in the sense of how the legal gender reassignment/recognition has been received and treated by the authorities in other Member States. The situation of intersex persons is also 1 European Commission, List of Actions to Advance LGBTI Equality, December 2015, available at: https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-discrimination/lesbian-gay-bi-trans-and- intersex-equality/list-actions-advance-lgbti-equality_en, p. 15. Mapping of studies on the difficulties for LGBTI people in cross-border situations in the EU under-researched, as potentially discriminatory practices on the national level are often not yet properly identified, let alone the experience when intersex persons are in cross- border situations. The potential for further research is increased by the fact that some EU Member States already provide for non-binary, third gender or gender-neutral options in public documents (these are Portugal, Germany, Austria and Malta). Using the methods described in the next section, the researchers prepared summaries of each study and its findings. Legal and sociological sources are presented together, as many of the sources are of an interdisciplinary nature. Based on the studies identified, an essay was compiled summarising the main findings of the studies and the areas in which further research is needed. Finally, recommendations were drafted for further research built upon the existing studies and for addressing the existing knowledge gaps. 2.