Homophobia, transphobia and discrimination of lesbian, gay, bisexual, trans* and intersex persons (comparative legal analysis)

What?

Since 2008, FRA has conducted regular comparative analysis of the legal situation concerning the fundamental rights of lesbian, gay, bisexual, transgender and, since recently, intersex people in the European Union. In the forthcoming report to be published in 2015, an overview of legal developments and trends across the EU from 2010 onwards will be provided updating the Agency’s reports Homophobia and discrimination on grounds of sexual orientation in the EU Member States: Part I – legal analysis of June 2008 and Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity: – 2010 update (comparative legal analysis.

The legal comparative reports should be read alongside the results of FRA’s ‘EU LGBT survey report published in May 2013 and the report ‘Being Trans in the EU – Comparative analysis of the EU LGBT survey data’ published in December 2014. The survey provided for the first time comparable EU level data on the daily experiences and views of LGBT people.

Why?

The initial request for comparative legal research came from the European Parliament in 2007 when the European Parliament asked FRA to look into the issue of homophobia across the EU. Since then the Agency has kept up to date relevant data and analysis. Subsequent FRA legal comparative reports revealed legal challenges in the protection of LGBTI people.

Firstly, the number of Member States extending protection against sexual orientation discrimination beyond the sphere of employment into the areas covered by the Racial Equality Directive has continued to rise over the last years. Recognition of gender identity as a ground of discrimination remains uneven among EU Member States.

Regarding criminal law responses to incidents of abuse and victimisation, EU Member States have increasingly criminalised homophobic hate speech, as well as transphobic hate speech. In addition, a growing number of Member States treat homophobic and transphobic motivation as an aggravating factor in criminal offences.

As regards legal gender recognition, an increasing number of Member States have changed requirements to change name and recorded sex on official documents, such as the preconditions of infertility or divorce.

Finally, the situation of intersex people is marked by great concerns regarding a common practice in some Member States of medical ‘sex normalising’ treatments, including surgery, practised on intersex children to adequate their sex to the sex binary which the law establishes.

While encouraging developments towards the better protection of the rights of LGBTI people can be observed across the EU, and in a number of EU Member States in particular, in others little has changed and yet in others the protection of LGBTI people has suffered setbacks.

How?

This research draws on legal information at both national and international/EU level collected by FRA in the 28 EU Member States supported by FRA’s multidisciplinary research network, FRANET. FRA’s subsequent analysis also benefited from expert review.