2020 was a challenging year for LGBTIQ people in the European Union, as several states chipped away at their rights or took steps to further discriminate against members of the community. In November, the European Commission published the first-ever LGBTIQ Equality strategy which sets out a series of measures to mainstream LGBTIQ equality in all policy areas of the EU. Béton Bleu talked to Law Professor Alina Tryfonidou from the University of Reading School of Law about the legal backdrop of LGBTIQ rights in the EU and why fighting for human rights is a delicate balancing act.

Béton Bleu: In November 2020 the European Union published the first LGBTIQ Equality strategy. It addresses the inequalities and challenges affecting LGBTIQ people, setting out a number of targeted actions for the next five years. At the same time, we have seen several states, among them Poland and Hungary, targeting these groups and restricting their rights. What impact will the strategy paper have?

Alina Tryfonidou: This is the first time the EU has a so-called ‘Strategy’ on LGBTIQ equality. It is important because it shows symbolically that the EU puts LGBTIQ rights at the same level as the rights of other minorities, such as racial or religious minorities. There was another document published in 2015 (the ‘List of Actions to Advance LGBTI Equality’), but it was less ambitious and the word ‘Strategy’ was not used for it - it was just a list of actions to achieve equality for LGBTI people. ‘Strategy’ is the name used for documents adopted by the EU which aim at presenting policy objectives and actions to achieve equality, so the use of the word ‘Strategy’ for this document puts it officially on a par with documents aiming to achieve equality for other groups of persons (such as the Gender Equality Strategy).

BB: The paper seems to be quite vague when it comes to taking concrete steps. How far does it really go?

AT: That’s true, it’s not overly specific. It generally states what the plan of the Commission is when it comes to LGBTIQ rights in the next five years. The document says that the Commission will propose legislation to ensure recognition of parental rights, but it does not go into more detail. But, in my view, it does include some concrete plans with regard to hate crimes and hate speech. It leaves leeway to deal with these issues in a diplomatic way without directly attacking the member states. The Strategy shows that the Commission is well aware that the EU doesn't have the competence to do everything. But it creates an incentive and pushes the member states to work together and achieve what the EU itself cannot achieve. For example, one area where the EU does not have competence is education. It cannot tell the member states what to teach in schools. And yet, in the Strategy, it states that the member states should work together to exchange good practices and learn from each other in order to ensure that education is inclusive.

BB: Do you consider the LGBTIQ-Strategy a success?

AT: Yes, I think it is as good as it can get. The Strategy is well balanced because it doesn't make any assumptions, it is ambitious but not overly ambitious. It takes into account that the EU has limited power in what it can do. But at the same time, the Commission shows that it intends to take concrete steps in order to deal with issues which are very controversial from the point of view of some member states. In particular, the Commission intends to propose legislation that will require member states to mutually recognise the parent-child relationship when families move across borders. This will not be a measure that is specifically tailored to “rainbow families”, it will apply to all families, but it is of particular importance to “rainbow families”, as they are usually the ones threatened with non-recognition when they move across borders.

BB: Where did it fall short?

AT: When I first read the Strategy I thought, ok they speak about parenting rights (in rainbow families) and they do include this clear plan to introduce legislation about the cross-border recognition of rainbow families, but what about same-sex couples who don't have children, will they be recognised when they move between Member States? A lot of issues have remained unresolved, a lot of things still need to be clarified with regard to same-sex couples. Personally, I would have liked to see something more concrete, that they provide some more security to same-sex couples that move between member states, not just with regard to family reunification rights but also with regard to other matters. For example, will a same-sex couple that married in one Member State be recognised as married for all legal purposes such as pensions or taxation when it moves to another Member State? This remains unclear.

BB: Why is the EU taking this step now?

AT: The EU is founded on the values of human rights, democracy and the rule of law. At the same time, although the EU values those principles and is bound by them, we have to remember that it wasn't, and is not a human rights organisation. The EU is not the Council of Europe, which was specifically founded in order to safeguard democracy, the rule of law and human rights in Europe and has drafted the European Convention on Human Rights which specifically has the goal to protect human rights. The EU is a very different organisation, and initially, its aims were purely economic whilst – in the long-term - it also wanted to ensure peace in Europe. But that's it. The EU Treaties didn't make any reference to fundamental human rights, because – what later became - the EU was thought of as an economic organisation, so there was no danger that when the EU institutions would be exercising their powers they would be capable of violating human rights. This changed when the European Court of Justice, the EU’s top court, held that fundamental human rights form part of the general principles of EU law in 1969 – a move which was consolidated in the Treaty of Maastricht in 1993, which was also the Treaty which introduced a number of developments -including the creation of the status of Union citizenship- which demonstrated that the EU was no longer just an economic organisation.

BB: So a step like this is also a recognition on the EU’s part that you can't separate human rights from economic issues?

AT: Yes, that’s exactly right. The EU seems to realise that you can't separate economic objectives from everything else anymore. This is a continuation of what we have seen since 1993. When the EU acquired additional competences that were not economic in 1993, it was from that moment onwards that it recognised that it can't just be an organisation that says ‘I'm not touching anything else because I have only these economic aims and I only touch these’. Rather, it was clear that whatever action the EU takes in the economic field, this can have spillover effects into other (non-economic) areas. But of course, this should not make us think that the EU is now a human rights organisation. Human rights, including LGBTIQ rights, are part of the values that the EU wants to secure. And those countries that want to accede to the EU have to comply with these values. But it is still the case today that the EU cannot make legislation which has as its sole objective to protect human rights, simply because it does not have the competence to do so. At the same time, because fundamental human rights are included among the values on which the EU is founded, they are binding as general principles of EU law and as part of the EU Charter of Fundamental Rights, so the actions of the EU institutions cannot give rise to human rights violations.

BB: The mechanisms that are in place seem to fall short with member states which violate this basic agreement on human rights.

AT: Exactly. Once countries have acceded to the EU and are, thus, EU member states, what can the EU do, if they don't comply with human rights anymore? The main mechanism that currently exists is Article 7 of the Treaty on European Union which requires unanimity in the European Council in order to determine that a member state has seriously and persistently breached the values referred to in Article 2 of the Treaty on European Union, which include human rights. When such a determination has been made, the said Member State may be faced with the prospect of certain of its rights deriving from the Treaties being suspended. So if a second member state does the same (i.e. violates certain human rights) - as we have in the case of Poland and Hungary - then this mechanism will lead nowhere, because the second Member State can exercise its veto power to preclude a finding that the other Member State has seriously and persistently breached the values referred to in Article 2.

BB: There is an argument that the EU has to be careful not to put too much pressure on member states when it comes to issues like LGBTIQ rights because it might risk a backlash in those states and their governments might use it as an argument against the EU. They can claim that the EU is trying to impose their views on them. How do you feel about this reasoning?

AT: Even if we forget about the practicalities - meaning the (limited) means that are available to the EU to deal with violations of LGBTIQ rights and the limits in its competence - we do have to remember that these issues are very sensitive. If the EU tells the member states that they have to change their law in order to allow same-sex couples to marry in their territory, that would be hugely problematic, first, because the EU does not have the competence to do this but, also, because this is a matter which is very sensitive from the point of view of the Member States, as it is a matter that touches on issues relating to human rights, religion, morality, and tradition. That's why the EU is very apprehensive when it takes steps in this context, exactly because it fears the possible backlash. At the moment it may be that there are only a handful of member states that have (overly) problematic laws or views in relation to LGBTIQ rights. But if the EU takes a harder stance and decides to require all EU Member States to take steps which are not yet prepared to take (e.g. to introduce same-sex marriage), then this may lead to a backlash (e.g. some Member States may introduce a constitutional ban on same-sex marriage).

BB: So is it wiser for the EU to do nothing?

AT: That’s a difficult question. Violation of LGBTIQ rights is a violation of human rights, so what do we do? I suspect what the EU is hoping and expecting is probably some kind of action on the part of the European Court of Human Rights because the European Convention on Human Rights is clearly a human rights instrument, so it is its job to specifically protect human rights. If there is someone who can require member states to take steps to protect LGBTIQ rights, it will be the European Court of Human Rights. However, it should be remembered that the Council of Europe (which is the organization that has introduced the European Convention on Human Rights) is a regional human rights organisation which has more member states than the EU (currently 47). Hence, there is even more diversity in views and opinions than there is in the EU, which has 27 Member States. So the European Court of Human Rights would find it difficult to take a very hard and absolute stance on the protection of LGBTI rights. So what this means is that both the EU and the European Court of Human Rights are finding themselves in a position where, even if they want to take further steps, they are facing the possibility of a backlash, the possibility that they will be accused of not respecting the national identities of the Member States.

BB: Which would probably make it harder to achieve any changes.

AT: Correct. The implementation of the judgments of the European Court of Human Rights and of the measures adopted by the EU both depend mostly on the goodwill of the Member States. So both the EU and the European Court of Human Rights try to take measures where they feel there is a chance that they will be implemented. They want to keep Member States on their side. In other words, the EU (and the European Court of Human Rights) are choosing their battles, so to say.

BB: If we are to take the European project seriously and agree that there is a certain set of values that we consider non-negotiable, would there be an option to say, there is a red line and if a member state decides to not go along, they are welcome to leave the EU?

AT: I don't think the EU at any point would want to take such a harsh stance. Brexit is the first experiment with regard to a member state leaving the EU. Even if the EU says you are welcome to leave, it cannot actually expel a member state. The EU wouldn't want to do that, because if a member state refuses to leave after it is told it should leave, it can be quite embarrassing for the EU. We have seen in very recent months how the EU has been trying to find other ways to push for compliance, e.g. by tying EU funding to compliance with – and respect for – the rule of law.

BB: When you talk to LGBTIQ people in Poland or women in Hungary many feel like the EU is not doing enough.

AT: I can understand that it feels disappointing, but we have to remember that the EU can only do what the Treaties allow it to do. There are limits to what it can do - for example, it cannot require member states to allow same-sex couples to formalise their relationship in their territory. The EU doesn't want to be accused that it is abusing its powers, because then it would go against its own values and the rule of law. One of the arguments made against the EU during the Brexit campaign was exactly that Britain wanted to “take back control”. These arguments are made in other member states as well. In the UK, the issues had more to do with immigration. In other states, LGBTIQ rights might be one of the main issues. The EU is quite vulnerable now as a result of Brexit, but also as a result of the economic situation that will ensue as a result of Covid-19. In circumstances like this, there is a need for a scapegoat, and an easy scapegoat is always the EU. Hence, they wouldn't want to be at fault.

BB: Do we have to lower our expectations with regard to what the EU can do? Is it also a matter of communication with its citizens in a way that helps them understand the limits so they are not disappointed?

AT: Yes, there is a requirement to manage expectations. There is a common misconception - people speak of "Europe'' without distinguishing between the EU and the Council of Europe (and the European Convention on Human Rights). This happens even with big newspapers and, even, law students who make this common mistake. And they have this misconception that the EU is mainly about protecting human rights, which is wrong. The Commission’s LGBTIQ Equality Strategy says again and again that the EU does not have the competence to act in certain areas. That's why the Strategy notes that the Commission will support Member States to achieve specific things (e.g. to develop national plans on LGBTIQ equality) or to exchange good practices (e.g. on ensuring safe and inclusive education for all children, young people and adults). I'm sure that NGOs and lawyers who have read and analysed the strategy and are aware of the limits as to what the EU can do, can recognize that it is a positive step forward. However, the average person who doesn't know what the EU is about and how it works and is not aware of the limits to its competence, is bound to be disappointed by the Strategy.

BB: Should we celebrate what little progress there is?

AT: I think so. Even if only a few member states start taking steps, this is important because the balance in the majority changes. Currently, the majority of LGBTIQ-friendly Member States are western and northern European states – but if we also get a few of the southern and central/eastern Member States to support at least some steps towards more LGBTIQ-inclusive policies, then the Member States that will remain in the (homophobic) minority will be placed in a worse light. A very good example of a member state that has changed a lot with regard to its approach to LGBTIQ rights is Malta. Malta is a small, catholic, country, so one would have expected it to have more traditional views with regard to what is a ‘family’ and LGBTIQ rights. And yet, in the last few years, it consistently tops ILGA-Europe’s Rainbow map which scores European countries for their policies and laws regarding LGBTIQ people. There is, thus, scope for us to be surprised, but it depends on the ground level - at member state level - who is there at the right time.

Interview: Thorsten Schröder

About Alina Tryfonidou:

Alina Tryfonidou is a Professor of Law at the University of Reading. She began her academic career in 2007, as a Lecturer in Law at the University of Leicester. She subsequently joined the University of Reading as a Lecturer in Law in September 2011 and was promoted to Associate Professor in EU law in 2013 and to Professor of Law in 2018. Professor Tryfonidou’s main research interests lie in EU law and the protection of LGBT+ rights. She is a frequent speaker at international conferences and she has been invited to speak before the European Parliament. In addition to monographs, chapters in edited volumes, articles in academic journals, and online blog posts and articles, Professor Tryfonidou has contributed chapters in reports and studies commissioned by the German Federal Ministry for Family Affairs, Senior Citizens, Women and Youth and by the European Commission. Moreover, she has co-authored a report on obstacles to the free movement rights of rainbow families in the EU commissioned by the European Parliament PETI committee, and she has written two research reports for NELFA. Her work has been cited by several Advocates General before the European Court of Justice.

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(C) 29/01/2021

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