1. Concepts and definitions of sexual orientation and inequalities and discrimination concerning sexual orientation and gender identity
In everyday language sexual orientation involves the idea that individuals have certain sexual preferences towards either men or women or both or none. The Yogyakarta Principles,33 which are principles on the application of IHRL in relation to sexual orientation and gender identity, define sexual orientation as follows: ‘Sexual orientation is understood 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.’ (Yogyakarta Principles 2007: 6, 8)
The choice of terminology in reference to the concept of sexual orientation, however, is still quite disputed. As indicated above, the term homosexuality still is shaped by the essentialist and male heritage.
At first glance, ‘sexual orientation’ not only seems to be timeless but also a neutral term. However, it also appears to be problematic because in common language sexual orientation is mostly equated with those forms of sexuality deviating from the heterosexual norm.
Theoretical approaches to capture sexual orientation can roughly be divided into two branches:
Essentialist approaches conceptualise sexuality and sexual orientation as an ahistorical phenomenon that is a part of a human being irrespective of the cultural context. Thus, homosexuality and heterosexuality are seen as essentially different determined by biological factors such as hormones or genes and independent from cultural influences (see e.g. DeLamater and Hyde 1998).
Constructivist approaches assume that sexuality and sexual orientation are determined by social and cultural influences and therefore are a contingent and historical construct (see e.g. Butler 1990;
Pilcher and Whelehan 2004). The French philosopher Michel Foucault significantly contributed to this debate by revealing the interrelation of power, knowledge and sexuality in modern times (Foucault 1983: 105-106).
The latter also raises questions of gender identity and opens up the possibility of breaking up binary gender structures and norms and to introduce other gender categories such as transgender, transsexual or intersex.
2. General remarks on sexual orientation and human rights
Law can be seen as an integral aspect of the ‘great surface network’ through which sexuality is socially produced. It is both an important site at which the ‘formation of special knowledges’ about sexuality are interpreted and reproduced and a vital nexus at which ‘controls and resistances’ around sexuality are negotiated. (Johnson 2010: 72)
33 The Yogyakarta Principles were drafted by the International Commission of Jurists, the International Service for Human Rights and human rights experts from all over the world. Although the Principles are not legally binding they are increasingly used by international organisations, e.g. Council of Europe, European Union Agency for Fundamental Rights (FRA).
The fact that law in general as well as human rights in particular are biased against sexualities deviating from the heterosexual norm is a crucial point when it comes to the nexus between sexual orientation and human rights. The main point of criticism in this context was and is the explicit and implicit forms of exclusion from the human rights project of those persons not meeting heterosexual norms.
The explicit dimension refers to all forms of legal discrimination against and/or prohibition and criminalisation of same sex relations and/or the exhibition of same sex affection. It includes prohibition and criminalisation of sexual acts and relations that do not correspond with the heterosexual norm or the negligence of sexual orientation as a grounds of discrimination in non-discrimination law.
The implicit dimension refers to implicit norms human rights are based on which are discriminatory and exclusionary regarding persons who do not meet heterosexual norms. The main point of criticism concerns the implicit heteronormativity of (human) rights. Heteronormativity describes practices, ideologies and standards of thinking which place heterosexuality as the norm of gender relations that structures subjectivity, living conditions, symbolic order and social organisation and pushes people into two sexes, the sexual desires of which are directed towards the opposite sex (Wagenknecht 2007:
17). The claim is that (human) rights are implicitly based on heterosexual norms and, hence, are biased against persons deviating from this norm. The institution of marriage and the definition of family are textbook examples for heteronormative practices which are also apparent in human rights law.
Excluding sexual minorities from this norm not only leads to social stigmatisation of these groups but also excludes sexual minorities from a broad range of rights and benefits linked to the institution of marriage and other family rights. The meaning of equality enshrined in human rights law conforms to the heterosexual norm. Heteronormativity is exercised through human rights law in a subtle, implicit way: heterosexuality is presumed. It is ‘a position that is so unremarkable among heterosexuals that it becomes invisible as a structure’ (Phelan 2001: 35). Furthermore, it is highly disputed if including LGTBIQ persons into the human rights project can actually transform its heteronormative bias and guarantee equality. Rahman argues that ‘not only do formal rights fail to address the social construction of differences because of their limited scope, but also that the discourse of rights may serve to compound social inequality, since it is too often underpinned by essentialist constructions of differences’ (Rahman 1998: 82).
3. EU policies and legal response to inequalities and discrimination with regard to sexual orientation
a) Sexual orientation in primary and secondary law
Sexual orientation was not a very high priority item on the EU/EC agenda for many years although the European Parliament started discussing measures against discrimination on grounds of sexual orientation in the 1980s. Due to intensive lobbying by interest groups sexual orientation was included in Art. 13 of the Amsterdam Treaty, which was later renumbered as Art. 19 under the Treaty of Lisbon. This provision gives the EU the power to ‘take appropriate action to combat discrimination based on (…) sexual orientation.’ In addition, the principle of non-discrimination on grounds of sexual orientation was included in Title II of the TFEU as a provision having general application in defining and implementing EU policies and activities.
The fact that law in general as well as human rights in particular are biased against sexualities deviating from the heterosexual norm is a crucial point when it comes to the nexus between sexual orientation and human rights. The main point of criticism in this context was and is the explicit and implicit forms of exclusion from the human rights project of those persons not meeting heterosexual norms.
The explicit dimension refers to all forms of legal discrimination against and/or prohibition and criminalisation of same sex relations and/or the exhibition of same sex affection. It includes prohibition and criminalisation of sexual acts and relations that do not correspond with the heterosexual norm or the negligence of sexual orientation as a grounds of discrimination in non-discrimination law.
The implicit dimension refers to implicit norms human rights are based on which are discriminatory and exclusionary regarding persons who do not meet heterosexual norms. The main point of criticism concerns the implicit heteronormativity of (human) rights. Heteronormativity describes practices, ideologies and standards of thinking which place heterosexuality as the norm of gender relations that structures subjectivity, living conditions, symbolic order and social organisation and pushes people into two sexes, the sexual desires of which are directed towards the opposite sex (Wagenknecht 2007:
17). The claim is that (human) rights are implicitly based on heterosexual norms and, hence, are biased against persons deviating from this norm. The institution of marriage and the definition of family are textbook examples for heteronormative practices which are also apparent in human rights law.
Excluding sexual minorities from this norm not only leads to social stigmatisation of these groups but also excludes sexual minorities from a broad range of rights and benefits linked to the institution of marriage and other family rights. The meaning of equality enshrined in human rights law conforms to the heterosexual norm. Heteronormativity is exercised through human rights law in a subtle, implicit way: heterosexuality is presumed. It is ‘a position that is so unremarkable among heterosexuals that it becomes invisible as a structure’ (Phelan 2001: 35). Furthermore, it is highly disputed if including LGTBIQ persons into the human rights project can actually transform its heteronormative bias and guarantee equality. Rahman argues that ‘not only do formal rights fail to address the social construction of differences because of their limited scope, but also that the discourse of rights may serve to compound social inequality, since it is too often underpinned by essentialist constructions of differences’ (Rahman 1998: 82).
3. EU policies and legal response to inequalities and discrimination with regard to sexual orientation
a) Sexual orientation in primary and secondary law
Sexual orientation was not a very high priority item on the EU/EC agenda for many years although the European Parliament started discussing measures against discrimination on grounds of sexual orientation in the 1980s. Due to intensive lobbying by interest groups sexual orientation was included in Art. 13 of the Amsterdam Treaty, which was later renumbered as Art. 19 under the Treaty of Lisbon. This provision gives the EU the power to ‘take appropriate action to combat discrimination based on (…) sexual orientation.’ In addition, the principle of non-discrimination on grounds of sexual orientation was included in Title II of the TFEU as a provision having general application in defining and implementing EU policies and activities.
Based on Art. 19 TFEU the EU adopted the Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation which prohibits amongst others grounds discrimination on grounds of sexual orientation in the employment sector.
Sexual orientation was further included in Art. 21 of CFREU which prohibits ‘any discrimination based on any grounds such as sex, (…) or sexual orientation’. Gender identity is not explicitly included in the Charter, but interpretation of case law by the Court of Justice of the European Union (CJEU) clearly sees gender identity with respect to transgender persons who underwent, are undergoing or intend to undergo gender reassignment as covered by EU law.
Sexual orientation is further addressed in the following secondary law:
Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. Article 10 says that a particular social group that might fear persecution ‘might include a group based on a common characteristic of sexual orientation. (…) Gender related aspects, including gender identity, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group.’
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States lays down that ‘Member States should implement this Directive without discrimination between the beneficiaries of this Directive on grounds such as sex, (…) or sexual orientation.’
Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification states that
‘Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, (…) or sexual orientation.’
Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law policies and practice concerning sexual orientation in general.
The Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA considers the existence of specific protection needs of victims of crimes committed based on personal characteristics such as sexual orientation, gender and gender identity or expression.
On 2 July 2008, the European Commission released a Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation in order to expand the scope of protection beyond the field of employment and occupation. However, the Directive has not been adopted yet due to a lack of approval by the Member States.
b) Policies and practice concerning sexual orientation in general There is a broad range of policies and practices concerning sexual orientation and transphobia in the EU.
The following are the most recent developments:
‘The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens’ was adopted by the European Council in December 2009 and defines the policy priorities in the area of justice and home affairs for 2010-2014. It lays down that ‘measures to tackle discrimination (…) and homophobia must be vigorously pursued.’ (European Council 2009)
The European Commission Action Plan Implementing the Stockholm Programme lays down that ‘all policy instruments available will be deployed (…) to fight all forms of discrimination (…) and homophobia.’ (European Commission 2010: 3)
On 8 June 2010, the Council of the European Union Working Party on Human Rights (COHOM) adopted a Toolkit to Promote and Protect the Enjoyment of all Human Rights by Lesbian, Gay, Bisexual and Transgender (LGBT) People with the objective to ‘help the EU institutions, EU Member State capitals, EU Delegations, Representations and Embassies to react proactively to violations of the human rights of LGBT people, and to address structural causes behind these violations’ (COHOM 2010: 1).
On 8 January 2013, the European Parliament adopted a Report on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity.
The European Union Agency for Fundamental Rights (FRA) has repeatedly addressed the topic of LGBT rights and carried out surveys e.g. on homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity.
c) Policies and practice concerning sexual orientation especially with regard to external action
The EU Strategic Framework and Action Plan on Human Rights and Democracy which defines key areas and priorities of EU’s human rights action, stresses the commitment of the EU to combat all forms of discrimination including discrimination on grounds of sexual orientation. The Action Plan lays down that the Council shall develop public EU guidelines, building upon the EU's LGBT (lesbian, gay, bisexual, transsexual) toolkit and that the Member States and the EEAS shall ‘develop an EU strategy on how to cooperate with third countries on human rights of LGBT persons, including within the UN and the Council of Europe. Promoting adoption of commitments in the area of human rights of LGBT within the OSCE, including through organisation of a public event in the OSCE framework’ (Council of the European Union 2012). On 24June 2013, the Council of the EU adopted Guidelines to promote and protect the enjoyment of all human rights by lesbian, gay, bisexual, transgender and intersex (LGBTI) persons aiming at enhancing human rights of LGBTI persons within its external action and providing guidance for EU institutions and EU Member States in this context (see also Chapter VII.C.1 and 2).
d) Gaps and challenges
Although sexual orientation was included in EU discrimination law, the scope of EU non-discrimination concerning sexual orientation is restricted to the economic and employment sector.
Initiatives to adopt a broader field of application have failed so far. In general, it can be said that EU law is characterised by implicit heteronormativity. Persons deviating from the heterosexual norm, e.g.
regarding the definition of family, have only recently, gradually and in a fragmented way been included in
b) Policies and practice concerning sexual orientation in general There is a broad range of policies and practices concerning sexual orientation and transphobia in the EU.
The following are the most recent developments:
‘The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens’ was adopted by the European Council in December 2009 and defines the policy priorities in the area of justice and home affairs for 2010-2014. It lays down that ‘measures to tackle discrimination (…) and homophobia must be vigorously pursued.’ (European Council 2009)
The European Commission Action Plan Implementing the Stockholm Programme lays down that ‘all policy instruments available will be deployed (…) to fight all forms of discrimination (…) and homophobia.’ (European Commission 2010: 3)
On 8 June 2010, the Council of the European Union Working Party on Human Rights (COHOM) adopted a Toolkit to Promote and Protect the Enjoyment of all Human Rights by Lesbian, Gay, Bisexual and Transgender (LGBT) People with the objective to ‘help the EU institutions, EU Member State capitals, EU Delegations, Representations and Embassies to react proactively to violations of the human rights of LGBT people, and to address structural causes behind these violations’ (COHOM 2010: 1).
On 8 January 2013, the European Parliament adopted a Report on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity.
The European Union Agency for Fundamental Rights (FRA) has repeatedly addressed the topic of LGBT rights and carried out surveys e.g. on homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity.
c) Policies and practice concerning sexual orientation especially with regard to external action
The EU Strategic Framework and Action Plan on Human Rights and Democracy which defines key areas and priorities of EU’s human rights action, stresses the commitment of the EU to combat all forms of discrimination including discrimination on grounds of sexual orientation. The Action Plan lays down that the Council shall develop public EU guidelines, building upon the EU's LGBT (lesbian, gay, bisexual, transsexual) toolkit and that the Member States and the EEAS shall ‘develop an EU strategy on how to cooperate with third countries on human rights of LGBT persons, including within the UN and the Council of Europe. Promoting adoption of commitments in the area of human rights of LGBT within the OSCE, including through organisation of a public event in the OSCE framework’ (Council of the European Union 2012). On 24June 2013, the Council of the EU adopted Guidelines to promote and protect the enjoyment of all human rights by lesbian, gay, bisexual, transgender and intersex (LGBTI) persons aiming at enhancing human rights of LGBTI persons within its external action and providing guidance for EU institutions and EU Member States in this context (see also Chapter VII.C.1 and 2).
d) Gaps and challenges
Although sexual orientation was included in EU discrimination law, the scope of EU non-discrimination concerning sexual orientation is restricted to the economic and employment sector.
Initiatives to adopt a broader field of application have failed so far. In general, it can be said that EU law is characterised by implicit heteronormativity. Persons deviating from the heterosexual norm, e.g.
regarding the definition of family, have only recently, gradually and in a fragmented way been included in
EU norms. A further point of criticism is the ‘one size fits all’ approach towards multiple forms of discrimination which treats all marginalised groups the same way and ‘is based on an incorrect assumption of sameness or equivalence of the social categories connected to inequalities and of the mechanisms and processes that constitute them’ (Verloo 2006: 223). In addition, the treatment of sexual orientation as a minority issue is problematic:
LGBT single issue policies tend to treat this group in isolation, thus adopting a minoritizing
LGBT single issue policies tend to treat this group in isolation, thus adopting a minoritizing