“Because being yourself is not your ideology. It’s your identity. And no-one can ever take it away.”
On the 17th of January 2023, the Senate agreed to amend the first article of the Dutch Constitution. The new, amended, Article 1 now reads: “All who are in the Netherlands shall be treated equally in equal cases. Discrimination because of religion, belief, political affiliation, race, gender, disability, sexual orientation or on any other ground is not permitted.”1 The Article thus explicitly states that people may not be discriminated against because of their sexual orientation or disability, which led to a historical victory for the LGBTIQ+2 community according to interest groups. A historical victory indeed, but how is the protection of LGBTIQ+ rights regulated in the European Union?
The rights of LGBTIQ+ people
The European Commission initiated the ‘LGBTIQ Equality Strategy 2020-2025’ in which they emphasize that everybody in the European Union should be safe and free to be themselves.3 The first paragraph of the Strategy cites the President: “I will not rest when it comes to building a Union of equality. A Union where you can be who you are and love who you want – without fear of recrimination or discrimination. Because being yourself is not your ideology. It’s your identity. And no-one can ever take it away.”4
In recent research, it has been shown that even though there is increased social acceptance and support for equal rights, this has not always translated into clear improvements in the lives of LGBTIQ+ people. In a 2019 survey, the European Union Agency for Fundamental Rights (“FRA”) found that discrimination based on sexual orientation, gender identity/expression and sex characteristics is actually increasing in the EU: 43% of LGBTIQ+ people declared that they felt discriminated against in 2019, as compared to 37% in 2012.5 EU legislation ensuring legal protection against discrimination is key to advancing LGBTIQ+ equality, as is the Court of Justice of the European Union (“CJEU”) case law.
“A historical victory for the LGBTIQ+ community”
EU legislation and case law
Non-discrimination and equality are core values and fundamental rights in the EU, enshrined in its Treaties and in the Charter of Fundamental Rights. In particular, in Article 2 of the Treaty on the European Union and Article 23 of the Charter of Fundamental Rights.
In addition, the Gender Equality Directive6 establishes the right not to be discriminated against, nor be subjected to harassment on the basis of sex, including gender reassignment,7 in access to employment, working conditions (including pay), and occupational social security schemes. The principle of equal treatment for men and women precludes dismissal for a reason related to gender reassignment. EU law, as confirmed by the CJEU, also provides in the right not to be discriminated against on the basis of sex, again including gender reassignment in access to goods and services available to the public8 and in statutory social security.9 This legal framework does not yet explicitly mention sex characteristics as a prohibited ground for discrimination.
In recent decades, the CJEU has issued a number of cases on the rights of LGBTIQ+ people. For example, cases C-249/96 (Grant) and C-673/16 (Coman)10 show that “societal developments” in the EU are relevant in case law regarding the rights of LGBTQ people. In Grant, the CJEU ruled that same-sex relationships cannot be equated with opposite-sex relationships. Twenty years later, the CJEU in Coman clarified that the term ‘spouse’, as is used in the Free Movement Directive, also applies to a person of the same sex as an EU citizen to whom he or she is married.
Different approaches and interpretations
Member States have diverging approaches regarding the protection of LGBTIQ+ people, particularly non-binary, intersex and queer people, against discrimination and there are different interpretations in national court cases. While some Member States have added sex characteristics as a ground for discrimination to their national equality legislation, others have a broad interpretation of ‘sex’.11 Similarly, the grounds of gender expression appear in anti-discrimination legislation in only a few Member States. The fact that sexual orientation will be included in article 1 of the Dutch Constitution is a step forward to equal opportunities in love for everyone.
Ilona Kuipers