How the EU protects the rights of LGBTQI people against right-wing governments

Credits: Photo EPA, Stephan Franko.

By Barbara Somigli

LGBTQI rights are under attack in many EU Countries where far-right conservative governments are in power. European Institutions, in particular the European Parliament and the European Commission, have taken action to protect LGBTQI people from harmful laws. In the meantime, their tools are limited as EU law is lacking in terms of provisions that explicitly protect LGBTQI people from discrimination in various areas of life. As Eastern Europe LGBTQI people face the harsher consequences, the situation in the EU has worsened recently, due to rising of violent political discourse that portrays the LGBTQI people as an ideology instead of human beings. Hungary, Italy and Poland have been recently condemned by the European Parliament.

Right-wing governments and the EU’s reaction: 

Anti-LGBTQI hate speech by far-right politicians and religious leaders has grown in the last years, contributing to the rise of violence towards LGBTI people. An alarming trend found by ILGA-Europe is that anti-LGBTI violence in 2022 had the highest levels of targeting and extremism compared to the past 12 years. Hate crimes have increased in the EU, even in Western Member States. For example, the French Ministry of Interior reported a 28% rise in hate crimes between 2020 and 2021. Spain reported a 68% increase in 2021. The same report also states: “there are also more reports than ever before of LGBTI people taking their lives, a clear sign how discrimination, hate speech and harassment are impacting mental health.” As stated by the EU Agency for Fundamental Rights (FRA), little progress occurred from 2012 to 2020, with retrogression in some areas. The FRA surveys show that LGBTQI respondents reported facing more discrimination in 2020, in particular, for trans people the percentage was 60% compared to 43% in 2012. 

An example of political instrumentalization of LGBTI people is the misinformation about the LGBTI community that is carried out by spreading narratives and false information to promote negative stereotypes and discrimination against them. According to the last evaluation of the European commission’s Code of conduct on disinformation, sexual orientation was the most commonly reported basis for hate speech online. For example, labeling LGBTIQ+ as an “ideology” rather than human beings is becoming increasingly prevalent in online and offline communication. This alleged ‘gender ideology’ has been used by those who oppose the recognition and protection of LGBTI rights and to justify discriminating policies and legislation in various Countries. In fact, this propaganda is carried out by many conservative nationalist parties in the EU including the Polish Law and Justice (PiS), the Hungarian party Fidesz and the Italians Fratelli d’Italia (FDI) and Lega Nord. In a recent plenary session on the 20th of April 2023, the European Parliament approved a resolution that strongly condemns this type of rhetoric by political leaders in office in Hungary, Poland and Italy.

The situation is particularly serious in Eastern European Countries, for example Hungary. Here, the right-wing government led by Viktor Orban introduced several discriminating laws such as the “child protection” law that censors any communication about LGBT people in materials meant for children and puts sex education in schools under government control. Ursula Von Der Leyen condemned the action by calling the law “disgraceful” and accusing Hungary of using the protection of children as an excuse to discriminate against people.
Finally adding: “if Hungary does not rectify the situation the Commission will use its powers available as guardian of the treaties.”

In Poland, the undermining of the rule of law and justice system has harming effects on human rights, including women’s and LGBTIQ rights. In 2019 the Polish government encouraged municipalities in the creation of “LGBT-free zones”, a way to prohibit the participation of LGBT people in society, which represent a violation of the EU Charter of Fundamental Rights. That resulted in the banning of pride marches and actively initiated a stigmatization of LGBTQI people. Since September 2021, the European Commission has frozen financial support from the Structural Funds and Cohesion Fund to polish municipalities that had adopted this declaration until they withdraw it, which four of them did. Moreover, in July 2021 the Commission initiated an infringement procedure against Poland and Hungary for violation of human rights.

In Italy, legislation on LGBTQI rights has been stagnant since 2016, when civil unions were finally legalized. The situation worsened since Giorgia Meloni’s conservative government took office, whose far-right party Fratelli d’Italia (FdI) had promised to defend the so-called traditional family. Since then, it obliged Milan city council to stop the transcription of children of same-sex parents. The European Parliament condemned the move, which represented a direct breach of children’s rights. FdI also made a bill proposal that would criminalize couples that pursue surrogacy abroad.

EU legislative framework: 

Compared to the rest of the world, the EU is quite an LGBTI-friendly place, with its well-established anti-discrimination law. The founding Treaties (Article 2 and 3 of TEU and Article 10 of TFUE) and the Charter of Fundamental Rights guarantee the principle of equality and the prohibition of discrimination. Nevertheless, discrimination based on sexual orientation and gender identity is still present in the EU, though varying a lot among Countries, and there are still gaps in the legislation. As a matter of fact, laws that affect LGBTI rights cover a wide range of policies: from basic human rights to occupational, health, discrimination at work and parental rights. In 2000, the Employment Equality Directive prohibits discrimination for religion, age, sexual orientation or disability in the workplace. However, this is the only EU Directive that explicitly mentions sexual orientation as a ground to prohibit discrimination. As a result, LGBTI people still face discrimination in other areas that are not covered by the Directive. As summarized in this briefing by the European Parliamentary Research Service, some examples of discrimination that LGBTI people still face in the EU are: “refused entry to visit partners or children in hospital; higher premiums on health insurance; no access to social benefits reserved for married couples; bullying, harassment and discriminatory content in educational materials; degrading treatment by neighbors, or refusal to rent”. In 2008, the European Commission attempted to extend the principle of equal treatment of the 2000 Directive also in other areas by making a new proposal. The Amsterdam Treaty introduced Article 19 of TFEU which empowered the EU with the possibility to take action to contrast discrimination. This article provides that such action has to be taken with the special legislative procedure, so with the EP’s consent and the Council’s unanimity. The proposal is stuck in the Council since some Member States oppose it. In 2019, the Commission proposed to facilitate decision-making in the field of non-discrimination with the use of ordinary legislative procedure and enhanced qualified majority voting but the dossier is still pending.
LGBTQI rights in the EU: a mixed picture

If you are an LGBTQI person in the EU, the quality of your life changes a lot depending on which country you live in. ILGA-Europe, European branch of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (an umbrella-NGO), publishes the Rainbow Map on a yearly basis: a ranking of Countries on a scale from 0% to 100% to indicate the level of respect of human rights and equality. The 2022 map shows that the situation in the EU varies a lot: Malta (92%), Denmark (74%) and Belgium (72%) scored the highest, while Romania (18%), Bulgaria (18%) and Poland (13%) scored the lowest. A division between East and West can be observed, with western Member States ranking generally higher than eastern ones. The only exception is the situation of Italy, which is ranked among the worst Countries with 25%, making it the only big western Member State in the bottom part of the list. 

Source: ILGA-Europe, 2022

In conclusion, the EU has been working to provide safeguards for LGBTQI people within the limits of its competences but gaps in the legislation do not guarantee full protection of rights. In 2020, a new EU LGBTIQ equality strategy 2020-2025 has been adopted to tackle hate speech, hate crimes, guarantee free movement for same-sex couples and their families, and help Member States to promote inclusion at work, in education and healthcare and to end harmful practices like “conversion practices”. As regards to funding, LGBTQI rights are covered under the Justice, Rights and Values Fund. In particular, the Citizens, equality, rights and values programme (CERV). In cases of violations of human rights by Member States, the EU must send harsher warnings to governments and be prepared to trigger legal infringement procedures. A stronger line from the EU is necessary if it does not want to be attacked and weakened at its core values. The situation is different when we look at other issues, such as family law, which falls in the remit of Member States and where the EU cannot interfere directly or in a binding way. What the EU can do is to act indirectly through the provision of funds and financial support to NGOs and putting pressure on governments that try to erode LGBTQI rights. People in the EU deserve to enjoy full citizenship without being considered class B citizens.