On Equal Treatment of
Lesbians and Gay Men
in the EC.
Preliminary Draft Report
17 july 1993
by Mrs Claudia Roth
on behalf of the
Committee on Civil Liberties and Internal Affairs.
EXPLANATORY NOTES
1. Summary of existing policies of the European Parliament
and the European Commission in the field of equal treatment of
Gay men and Lesbian Women.
The Parliament's record on Gay and Lesbian Rights
In March 13th 1984 the European Parliament discussed the
Report on Sexual Discrimination at the Working Place and
adopted a Resolution based on this Report, prepared by Mrs.
Squarcialupi on behalf of the Committee on Social Affairs of
the EP.(EP 1-1356/83, PE 87.477).
It's recommendations concentrated on the existing unequal
treatment of Gay men and Lesbians in the working place and
asked for proper action by the Commission and the Council to
combat these shortcomings in the Community laws and regulations.
After this first intervention of an EC institution in favour
of Gay and Lesbian rights, the Parliament expressed on several
occasions its wishes to ameliorate the position of Gay men and
Lesbian women and to promote equal treatment irrespective of
sexual orientation:
- in its Resolution on Aids in 1990 it underlined the
necessity of integrating the equal treatment of Gay men
into the Aids prevention and other Aids policies on a
Community level.
- in the Resolution on the Recommendation on the Code of
Practice on measures to Combat Sexual Harassment in the
work place, it endorsed the Commission proposals to pay
extra attention to sexual harassment towards Gay men and
Lesbians.
- In the Resolution on the Rights of the Child based on a
Report of MEP Bandres Molet, the discrimination of
children on the basis of sexual orientation is
specifically outruled.(A-30172/92)
- on various occasions written questions to the Commission have been raised by Members from different political
groups.
The European Parliament
The European Commission's record on Gay and Lesbian Rights.
Over the last two years the European Commission through it's
Commissioner for Social Affairs has dealt with the subject at
the request of the International Lesbian an Gay Association
(ILGA), an international non-governmental organisation with
more then 400 member organisations in over 50 countries in the
world, 10 of which are Member States of the European Community.(ILGA got an observer status at UN's ECOSOC in january
1993)
- In 1991 the Commission issued a contract to the European
Human Rights Foundation, for a research project by the
European University Institute of Florence, Italy, and the
University of Utrecht, Department of Gay and Lesbian
Studies, The Netherlands, to analyze the impact of the
single market legislation on Gay men and Lesbian Women.
- An in-depth 300 page study entitled 'Homosexuality, A
Community Issue.' edited by Andrew Clapham, European
University Institute, Firenze and Kees Waaldijk, University of Utrecht on the subject was finalized in the
Autumn of 1992;
- In 1991 the Commissioner for Social Affairs designated a
civil servant in DG V to liaise with Gay and Lesbian
organisations on an international level as well as on the
level of the member states;
- In 1989 and 1991 under the Erasmus scheme, Summer
courses have been organized in lesbian and gay studies by
five European Universities;
- In 1990 a grant of 40.000 ecu was given to the Danish
national Gay and Lesbian association, LBL, to carry out a
study into the visibility of Lesbians in the Community.
The Council has only once taken a decision on the issue when
on 19 december 1991 the Council supported the Recommendation
on the Code of Practice on Measures to Combat Sexual Harassment.
These facts show that over the last decade the Community
institutions have dealt with the problems of Gay men and
Lesbians, albeit on a rather irregular basis and without an
explicit legal basis in Community law.
Other International developments
The World Health Organisation decided to remove homosexuality
from the international classification of diseases. As from
January, 1st 1993 this decision will be implemented.
In 1991 Amnesty International decided to consider the complete
prohibition under criminal law of sexual acts between persons
of the same sex as against human rights and indicated that it
considered persons convicted under such laws as entitled to
its support. Recently Amnesty International adopted the case
of two Rumanian men imprisoned for homosexual acts.
In various international fora the equal treatment of Gay men
and Lesbians has been raised by governments and NGO's. In the
United Nation's ECOSOC, CSCE, the Council of Europe various
steps have been taken that are likely to result in positive
developments in the achievement of equality of treatment of
Gay men and Lesbians and ending discrimination on the basis of
sexual orientation.
The Parliamentary Assembly of the Council of Europe is dealing
with a proposal to introduce the abolishment of legal prohibition as a condition-sine-qua-non for membership of the Council of Europe.
2. The Legal and Social situation of Lesbians and Gays in the
EC and in the member states
The legal and social situation of Gay men and Lesbians, in the
various member states is still marked by great differences.
As far as the legal situation is concerned various member
states have provisions in their penal codes that completely
forbid sexual acts between individuals of the same sex (as
until June 1993 has been the case in the Republic of Ireland),
or have discriminatory distinctions in the legislation on
sexual behaviour and the age of consent. (e.g. the United
Kingdom, the 'old countries' of FRG.)
The European Court of Human Rights in Strasburg ruled in
two cases that a full prohibition of sexual acts between
individuals of the same sex is not allowed under the
European Convention of Human Rights. In 1981 it so ruled
in respect of Northern Ireland (Dudgeon case) and in 1988
it did so in respect of the Republic of Ireland in the
Norris case, and in 1993 against Cyprus (Modinos Case).
.
In 1982 the law was changed in Northern Ireland so as to
bring the United Kingdom into conformity with the European Convention of Human Rights.In the Irish Republic it
took until 1993 before the Dial voted in favour of a law
to abolish the penalisation of homosexual acts between
men.
In 1988 in the United Kingdom legislation has been introduced
to forbid the provision of material by local authorities,that
is likely to promote homosexuality, in education, libraries
and cultural events. Other Member States (Italy,1984,Republic
of Ireland 1990, Belgium 1985) took comparative measures to
prevent young persons receiving 'positive' information about
homosexuality.
In several member states legislation in the field of so-called
embarrassing public behaviour or the prevention of sexual
transmitted diseases (e.g. Greece) permits the prosecution of
Gay men and Lesbians for acts that generally are considered to
be regular gay and lesbian behaviour and would not be
prosecuted if such acts were carried out by heterosexuals.
In France measures against dating arrangements and contact
advertisements by means of computer communication through
minitel, lead to financial problems for gay organisations and
editors, who financed magazines through means obtained by such
services
Over the recent years many persons in various member states
have been persecuted and sentenced, under legislation that in
criminalizes sexual acts between individuals of the same sex
In many cases prosecution leads to degrading treatment in the
public opinion and the media, before and during trials, and
after convictions, to discriminating treatment by prison
authorities and to often violent treatment by fellow-inmates
in prisons.
Even if arrests are not followed by prosecution, in some of
the member states so-called gay and lesbian lists are made up
and - in breach with data-protection regulations- circulated
among authorities.
But it are not mainly the provisions of the penal codes and
criminal laws, in some of the member states, that are detriment to Gay men and Lesbians. Most of the homophobic treatment
and the discrimination occurs in the daily lives of Gay men
and Lesbians.
Gay and Lesbian Visibility
The gay and lesbian visibility has grown in most member
states, especially in urban areas.
This visibility and strong and vigilant gay and lesbian communities in many member states, contributed to both changes in
public opinion and to legal improvements.
Such legal improvements have not been restricted to national
regulations: in various member states initiatives have been
introduced by regional and local authorities in support of gay
men and lesbian woman and their organisations. Such is the
case in e.g. the cities Bologna, Barcelona, Berlin, Amsterdam,
The Hague and region like Lower Saxony in the Federal Republic.
A second result of this visibility and its societal changes
was that many individuals came out as gay men and lesbian
women and could develop various forms of lifestyles and relationships that are new to society.
However social suppression, contemptuous approach, even violent attacks rape and murder of persons with a different sexual
orientation and corresponding lifestyles did not disappear in
all the member states upto a same extent.
Partially this is due to existing different cultures in relationships in general and family life in particular.
These new lifestyles and relationships are generally not
compatible with existing forms of legislation and practices in
family law and confining areas on the level of the member
states.
Equal treatment of these new forms of lifestyles - in relation
to e.g. asylum and immigration laws, social security and
social benefits, health care, education, employment, matrimony, succession rights, adoption of children, protection of
lease contracts, and other areas- is not an automatic thing.
This is not only the case for lifestyles and relationships of
persons with an orientation to individuals of the same sex, in
the population in general major changes have taken place in
these lifestyles.
The incompatibilities in these areas cause need for the adaptation of legislation and regulations that are the exclusive
competence of the member states of the EC. In areas where EC
regulations exist with an impact on relationships with
spouses, partners and dependents such incompatibilities also
cause needs for adaptations.
Freedom of movement restricted.
The phenomenon of incompatibility with the existing laws. is
also known as a consequence of the great changes that occurred
in the forms of relationships of people of heterosexual orientation. In some members states such did lead to changes in
legislation, but in general same sex relationships continued
to be treated differently.
For several gay and lesbian organisations this has been
the reason to demand a full equal treatment of gay and
lesbian relationships in line with the classic matrimony.
In Denmark and the Netherlands this has already lead to
specific forms of registration of relationship of persons
of the same sex.
As stated in the motion for a resolution on the recognition of civil unions for couples consisting of persons of
the same sex (Bettini e.a.PE 158.360) also in France and
Germany problems in this field have risen. Also the
motion for a resolution on discrimination in relation to
freedom of movement (Blak and Jensen, PE 161.465) calls
upon European Parliament to take action to ensure freedom
of movement and equality.
Irrespective of the legal status of such new relationships in
the member states, it is obvious that these important changes
will have consequences for an important group of European
citizens as far as the freedom of movement is concerned.
A striking example of a restriction of the freedom of
movement caused by differences between member states is
the case of a male civil servant of the European
Parliament of Belgian nationality who was transferred
from Brussels to Paris. His male partner (third country
resident) who had limited residential rights in Belgium
did not obtain such rights at all in France.
As a consequence of this, the relationship became under
heavy strains and was ended.
The European Community legal system implicitly is based on the
view that the obvious legal form of the basic unit in society
is the classical nuclear family composed of two legaly married
adults with childred. A striking example of the injustices
this implicit basis causes, is a rule in the Common Agricultural Policy where the transfer of milk quota is only permitted if such a transfer is made to 'legal spouses'.
Strengthening of Legal Basis of Human Rights.
As it became clear in the study of the European Commission,
existing case law by the European Court of Justice over the
last years has already touched upon problem areas in this
field.
The 'aquis communautaire' has not been adapted to the new
developments in the lifestyles and relationships. The concept
of family, constituting the basis of the community legislation
in these areas, is not covering the reality in European
society any more. Therefore action is needed to adapt community law to these changes.
In comparable cases, the European Court of Justice already
looked for possible juridical grounds to come to binding
conclusions under Community Law by referring to provisions in
the European Convention on Human Rights and it's case law as
formulated by the European Commission on Human Rights and the
European Court of Human Rights.
The European Commission working programme for 1990 envisaged
for the Community to become a party to the European Convention
of Human Rights. This would give the Community influence over
a broader interpretation of several of the Convention provisions related to sexual relationships and the concept of the
family.
DRAFT RESOLUTION
On the equal treatment of lesbians and gay men and the
Fight against discrimination based on sexual orientation
The European Parliament,
- Recalling its positions and resolutions on the equal
treatment of lesbians and Gays in the Report on Sexual
Discrimination on the working place of 1984 by Member of
Parliament Squarcialupi and its resolution (PE....);
- Recalling its condemnation of discrimination based on
sexual orientation as expressed in its resolution on the
fight against and the prevention of aids (PE....);
- Recalling the Recommendation against Sexual Harassment
at the work place and its provisions to protect gay men
and lesbians in this respect(....);
- Recalling the resolution on human rights in the Community (de Gucht nr)
- Taking note of the report Homosexuality, A Community
Issue -written at the request of the European Commissionon the consequences of the completion of the single
market in 1992 for gay men and lesbians, of the European
University Institute at Firenze and the University of
Utrecht the Netherlands, finalized in 1992 notably of its
conclusions;
- A.
- considering that the European Parliament repeatedly
has expressed its support for the equal treatment of
all its citizens, irrespective of their sexual
orientation;
- B.
- considering that not all member states did abolish
discriminating legislation against sexual acts
between persons of the same sex;
- C.
- Considering that major changes in the public opinion
of most of the member states have brought along a
greater visibility of lesbians and gay men and
consequently -parallel to comparable developments in
the European national, regional and local societies
in general- to a manifolded set of lifestyles and
forms of relationships;
- D.
- Considering that in spite of a greater visibility
however lesbians and gay men are still subjected in
all spheres of social relations, often from early
age, to ridicule, intimidation, discrimination and
outright physical assault;
- E.
- Considering that the variation in lifestyles in many
member states cause a need to adapt existing civil,
criminal and administrative legislation, and that in
various member states such adaptations are on their
way or already have been implemented ;
- F.
- Considering that in every day life lesbians and gay
men are exposed to discriminatory behaviour inside
important non-governemental organisations and
social institutions like churches and their dependent institutions and services, the educational system, and of governemental institutions like the
army, the police and other and taking into account
that in various member states considerable improvements have been made by national, regional and local
authorities, starting awareness and information
campaigns among the responsible cadres of these
institutions in order to improve the situation of
lesbians and gay men;
- G.
- Considering that the implementation by the member
states of civil criminal and administrative legislation in several areas where the EC has competence
causes incompatibilities with the basic principles
of the provisions of the Treaty of Rome and the
Single Act, notably with the freedom of movement of
persons as laid down in article 3 of the EEC Treaty;
- H.
- Considering that the European Community, in its
activities and within its proper jurisdiction has
its own responsibility with regards to an equal
treatment irrespective of sexual orientation;
- I.
- Considering the need of a firm legal basis for the
protection of human rights in the EC to be laid down
in the EC treaties;
General Remarks
- 1.
- Reaffirms its conviction that all citizens should be
treated equal irrespective of their sexual orientation,
- 2.
- Is of the opinion that the European Community must
implement the principle of equal treatment irrespective of a person's sexual orientation in its existing legislation and all its legislation in the
future,
- 3.
- Is furthermore of the opinion that in general the
protection of human rights in the treaties, that are
the basis of the Community must be strengthened and
call upon the Community institutions to prepare for
the next round of institutional changes as foreseen
for 1996, a european constitution with a strong
emphasis on equal treatment irrespective of differences in nationality, race, belief, sex, sexual
orientation or any other difference,
- 4.
- Calls upon the European Council and the European
Commission, as a first step to a strengthening of
the legal basis for the human rights in the Community as envisaged in the 1990 Working Programma of
the Commission and recently expressed in its resolution, to become a party to the European Convention
on Human Rights,
To Member States.
- 5.
- Calls upon the member states to put an end to all
legislation that is criminalizing and discriminating
against sexual acts between persons of the same sex,
- 6.
- Urges the member states to put an end to unequal
treatment of persons with a preference of persons of
the same sex, single or living together, in legislation and regulations in the field of social security
and social benefits, adoption laws, housing regulations or any other regulations that are relevant,
- 7.
- Specifically calls upon the Republic of Ireland to
comply with the ruling of the European Court of
Human Rights in the Norris case (1988) and to repeal
any legislation that is interdicting sexual acts
between persons of the same sex,
- 8.
- Specifically calls upon the United Kingdom and the
Federal Republic of Germany to abolish any existing
provisions in their penal codes, that are discriminating on the basis of sexual orientation,
- 9.
- Calls upon its member states to create opportunities
for information campaigns in its military and
polices forces providing information aimed at breaking down prejudices and preventing discrimination;
To European Commission.
- 10.
- Urges the European Commission to combat homophobia
and to secure the protection of fundamental human
rights of lesbians and gay men by nominating a Commissioner with the responsibility for this area in
his or her portfolio, with corresponding responsibility within the Commission Administration and the
Budget,
- 11.
- Urges the Commission to set up an ad-hoc Task Force
composed of internal and external members to prepare
a detailed plan and monitor its implementation,
- 12.
- Asks the Commission to include in the Task Force's
terms of reference:
- the preparation of a Community Declaration
spelling out the commitment to combat discrimination on the basis of sexual orientation,
within the proper jurisdiction of the Community,
- the revision of the current Statute for Staff
to eradicate all forms of discrimination on the
basis of sexual orientation in all aspects of
the Work Place, in order to serve as a model
employer in this respect for other Community
institutions, the Administrations of member
states and private enterprises,
- the revision of existing and planned legislation in all areas in the field of the internal
market and social and labour policy areas
including provisions against discrimination on
the basis of sexual orientation, starting with
the Equal Treatment Directives by extending the
gender discrimination to discrimination based
on sexual orientation,
- the revision of the ways by which the Commission may encourage member states and non-governmental organisations to combat discrimination based on sexual orientation within their
respective spheres of competence, in liaison
with national and transnational organisations
active in this field;
- the setup of a strategy for further research
and study into and monitoring of forms of discrimination based on sexual orientation in
particular in the economic sphere and with a
view to enhance awareness and where necessary
taking action,
- 13.
- Asks it President to forward this resolution etc.
Read Claudia Roth's Speech when Awarded
Prix Egalite 1995.
Copyright Gais et Lesbiennes Branchés,
1995
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