Equal opportunities in love

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“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

1 Senate 17 January 2023, ‘Eerste Kamer steunt wijziging artikel 1 Grondwet’,https://www.eerstekamer.nl/nieuws/20230117/eerste_kamer_steunt_wijziging

LGBTIQ people are people:

who are attracted to others of their own gender (lesbian, gay) or any gender (bisexual);
whose gender identity and/or expression does not correspond to the sex they were assigned at birth (trans, non-binary);
who are born with sex characteristics that do not fit the typical definition of male or female (intersex);
whose identity does not fit into a binary classification of sexuality and/or gender (queer).

3 European Commission, ‘Union of Equality: LGBTIQ Equality Strategy 2020-2025’, COM(2020) 698 final.

4 Ursula von der Leyen, President of the European Commission, State of the Union 2020.

5 FRA, EU-LGBTI II – A long way to go for LGBTI equality, 14 May 2020 (FRA, second LGBTI survey).

6 Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.

7 CJEU 30 April 1996, Case C-13/94, ECLI:EU:C:1996:170 (P v S and Cornwall County Council).

8 Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services.

9 CJEU 27 April 2006, Case C-423/04, ECLI:EU:C:2006:256, (Sarah Margaret Richards v Secretary of State for Work and Pensions).

10 CJEU 17 February 1998, Case C-249/96, ECLI:EU:C:1998:63 (Grant).

11 CJEU 5 June 2018, Case C-673/16, ECLI:EU:C:2018:385 (Coman).

12 European Commission, ‘Union of Equality: LGBTIQ Equality Strategy 2020-2025’, COM(2020) 698 final, p. 8.

Equal opportunities in love

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