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Preliminary Assessment of the Proposed Directive

By ILGA-Europe

The European Region of the International Lesbian and Gay Association (ILGA-Europe)

warmly welcomed the European Commission’s proposal of a single horizontal anti-

discrimination Directive, covering the grounds of age, disability, religion/belief and

sexual orientation. This decision is an essential step towards putting an end to the

hierarchy of rights between the different grounds of discrimination in the EU.

General comments:

This new directive is crucial because it provides for real protection where there is clear

evidence of discrimination happening, including in housing, access to goods and

services, access to health and education. It builds on the foundation of the existing

protection against discrimination on grounds of racial and ethnic origin.

The proposed Directive includes within its scope and legal concepts important

protections already found in European law for other grounds of discrimination. It is

essential that the extension of this protection to all grounds is brought into law in order

to move further in ending the hierarchy that exists in legal protections between grounds

of discrimination.

Key strengths of the proposed directive:

The directive introduces significant advances to the EU anti-discrimination legal

framework by leveling up the protection for four grounds - Age, Disability, Religion and

Sexual Orientation – and by covering the same scope as in the Race Equality Directive

(2000/43/EC).

Therefore, it is extremely important to ensure that the following provisions remain in the

Directive:



Article 1 which ensures that the

scope of the directive covers the four

grounds:

Age, Disability, Religion and Sexual Orientation



Article 2, which ensures that the

definitions of discrimination are consistent

with the current frameworks,

with the welcome addition of the explicit

recognition of denial of reasonable accommodation as a form of discrimination



Article 3 (2) on the

material scope of the directive,

which specifically includes

social protection (including social security and healthcare), social advantages,

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access to and supply of goods and other services which are available to the

public (including housing) and education.

Given the extensive evidence of discrimination that exists in all these areas

based on the four grounds, it is crucial to ensure that the directive adopted

covers this broad material scope. It is particularly important to ensure that

education will remain in the

material scope of the proposed anti-

discrimination directive (article 3(1)).

Evidence of the need for protection against discrimination in education

A 2006 Europe-wide survey showed that 53% of young people in Europe have experienced

homophobic bullying in school

. This form of harassment considerably affects the access to

school of young people, whether they are lesbian, gay, bisexual, transgender or perceived to

be.

An extensive body of research has demonstrated that homophobic bullying, like other forms of

bullying, have a negative impact on school achievement and on mental well-being, and can lead

to early school leaving and mental health problems, including depression and suicide.

Tackling the issue of harassment and discrimination in schools is clearly a matter of concern for

the EU as it is intricately linked to some key EU objectives in terms of employment, social

cohesion, social inclusion and the promotion of mental health.



Article 12 that will introduces a duty to

create an equal treatment body for all

grounds,

and preamble 28 which stipulates that these equal treatment body will

operate in line with the UN Paris Principles

Improvements to be made:

ILGA-Europe is committed to supporting and improving the Commission’s legislative

proposal by ensuring that it is consistent with international obligations.

In general, it is essential that the

objective of equal treatment is the rule rather than

the exception.

Therefore, exceptions clauses restraining equal treatment must be

strictly limited and subject to a strict standard of justification that can be tested before

the courts. In particular, we will be calling for amendments on the following provisions of

the proposed text:

Material scope and exceptions related to education

Education is crucial to equality for all groups. This is why the principle of equality

in access to education should not be unduly limited by blanket exceptions to the

principle of equal treatment (Article 3 (3) and (4))

There is a concern that blanket exclusions go further than is necessary to comply with

the principle of subsidiarity, leading, for some children, to the complete denial of the

right to education. We do not deny that this is an area in which the member states retain

There were 754 respondents to the questionnaires; 93% of the responses came from youth from within the EU. In Takacs, J., Social

Exclusion of LGBT youth in Europe, ILGA-Europe and IGLYO publication, 2006. www.ilga-europe.org/europe/publications/non_periodical/

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a significant competence. However, this does not go as far as preventing the EU to

legislate against discrimination in education, as evidenced by the inclusion of precisely

this prohibition in the Race Equality Directive. These exceptions are also of concerns for

each of the other grounds, i.e. disability (especially the exemption related to special

needs education), religion and belief (cf. access to educational institutions based on

religion or belief), and age (protection against discrimination for young people in

education in general).

Exceptions around marital and family status, and reproductive rights

Exceptions around marital and family status and reproductive rights should not be

added in the text as provisions of the Directive. Such exceptions create ambiguity and

lead to a lack of clarity. Moreover, such provisions could be interpreted in a way that

would lead to the continuation of less favourable treatment for people on the basis of

their sexual orientation.

ILGA-Europe recognises that member states are entitled to decide on the form of

recognition they wish to give to same-sex couples and agrees that the aim of this

directive is not to change national laws related to marital status, family status and

reproductive rights. However, national competence in this sphere does not, and should

not preclude states from taking legal measures to address acts of discrimination in

access to a service or to a social benefit.

We consider that it is essential to consider carefully how (lack of) recognition of rights to

same-sex couples impact on the rights of LGBT people to be protected from

discrimination in a significant manner. Any exemption related to marital and family

status should be considered in the light of the fact that it is often by virtue of being with a

partner of the same sex that people are discriminated in accessing goods and services,

in access to social benefits and social protection (e.g. discrimination encountered when

same-sex couples are booking a room together, when a partner is not considered as

next of kin in relation to health care or accessing benefits to care for a partner, when a

same-sex couple wants to get a mortgage to buy a house).

There is no precedent for including exceptions related to family status, marital

status and reproductive rights

in the provisions of EU directives, as such exceptions

are not found in the provisions of the Employment Framework Directive (2000/78). An

exception around marital status was included in the preamble of the Employment

Framework Directive (Recital 22) and was recognised as a clear limitation of the

Directive by legal experts. In a resolution adopted in May 2008, the European

Parliament also acknowledged that “exceptions linked to marital status in Directive

2000/78/EC has limited the protection against discrimination on the ground of sexual

orientation offered by that Directive”

Moreover, ILGA-Europe considers that article 3(2) of the proposed directive needs to be

carefully examined in light of recent European Court of Justice jurisprudence and legal

reports of the Fundamental Rights Agency.

2 Progress made in equal-opportunities and non-discrimination in the EU (transposition of Directives 2000/43/EC and 2000/78/EC) P6_TA-

PROV(2008)0212, 20 May 2008.

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In the ruling on the case Maruko v. Versorgungsanstalt der deutschen Bühnen (April

2008), the European Court of Justice has recognised that the

competence of states in

relation to marital status does not allow for states to disregard the principle of

non-discrimination.

It concluded that:

“Admittedly, civil status and the benefits flowing therefrom are matters which fall

within the competence of the Member States and Community law does not

detract from that competence. However, it must be recalled that in the exercise of

that competence the Member States must comply with Community law and, in

particular, with the provisions relating to the principle of non-discrimination.” (par.

59)

In addition the

Court recognized that differences in status between same-sex and

opposite-sex couples can constitute discrimination.

In the case Maruko v.

Versorgungsanstalt der deutschen Bühnen (April 2008), the ECJ held that “refusal to

grant the survivor’s pension to life partners constitutes direct discrimination on grounds

of sexual orientation” in cases where same-sex couples are in comparable legal

situation to opposite-sex couples.

The Court held that there is no justification for

difference between marriage and other forms of union where these exist.

This argumentation is complemented in a recent legal analysis

published by the EU

Fundamental Rights Agency which interprets the Employment Framework Directive in

light of international human rights law. The FRA analysis concludes that “international

human rights law complements EU law, by requiring that same-sex couples either have

access to an institution such as a registered partnership that would provide them with

the same advantages that they would have if they had access to marriage; or, failing

such official recognition, that their de facto durable relationships extends such

advantages to them.”

In other words,

according to international human rights law, in States where same-

sex couples cannot marry, they should be allowed to benefit the same material

protection as that recognized to married couples.

Member States have the

exclusive competence to decide on the form and definition of civil status, but they must

ensure equality of treatment between lesbian, gay and bisexual persons and

heterosexual persons.

Finally, the inclusion of reproductive rights in this provision is of concern. Access to

reproductive health services falls within the material of the directive as services.

However, the impact of the provision is likely to be that individuals would not be able to

challenge refusal to access reproductive services such as IVF because of their sexual

orientation and their marital status.

3 In the same case, the Advocate General Damaso gave an opinion in which he held that the non recognition of same sex partnerships constituted an

indirect discrimination on the grounds of sexual orientation (Affaire C-267/06 Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen, Advocate

general opinion of the 6th September 2007.)

4 Fundamental Rights Agency, Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States Part I – Legal Analysis",

June 2008. http://fra.europa.eu/fra/material/pub/comparativestudy/FRA_hdgso_part1_en.pdf

5 See Legal Analysis (p.29) http://fra.europa.eu/fra/material/pub/comparativestudy/FRA_hdgso_part1_en.pdf

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Other comments



Multiple discrimination

should be addressed if it does not require the reopening of the

“Race equality directive” or the “Framework Employment Directive”



We also call for a commitment to level up the

gender equality legislation

at the latest

by 2010 to ensure the same legal protection for all grounds of discrimination.

To discuss any aspect of this position further, please contact Patricia Prendiville, Executive Director

([email protected]) or Evelyne Paradis, Senior Policy Officer ([email protected]).