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 1 To Liviu, my best friend, whose courage, kindness and faith in people will always be an inspiration to me. 2 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 3 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 4 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 5 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 6 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?” 7 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.