Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity

Cover of the 2010 LGBT report
Cover of the 2010 LGBT report
November
2010
This report updates the FRA comparative legal analysis of discrimination on the basis of sexual orientation and gender identity first published in June 2008. It presents the situation as it stood at the end of 2009, though information gathered in 2010 has been incorporated to the greatest possible extent. Five main trends among EU Member States can be noted from the information presented in this report.
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Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity - 2010 Update (Comparative legal analysis)

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This report answers a European Parliament request to examine the situation of lesbian, gay, bisexual and transgender (LGBT) persons in depth, following restrictive legislation on their rights in certain EU Member States. The main findings of this update are summarised below.

First, a few EU Member States have amended their legislation and practice concerning access to gender reassignment treatment, and alteration of the recorded name or sex on official documents for those who have undergone or intend to undergo gender reassignment.

Second, the update reveals progress in a number of Member States in relation to the scope of legal protection against sexual orientation discrimination.

Third, the update reveals progress in relation to the enjoyment of freedom of assembly, and expression for lesbian, gay, bisexual and transgender (LGBT) people as well as protection from violence motivated by prejudice, incitement to hatred and expressions of prejudice and discrimination against LGBT people. For instance, in Poland, Romania and Bulgaria pride marches were held successfully for the first time. In contrast, in Lithuania the 2010 Baltic pride was threatened with cancellation at short notice, and in Latvia the right to organise marches continues to be challenged by elected offi cials despite several court rulings annulling attempted bans.

Fourth, the meaning of the term ‘family member' in the context of the law on free movement, family reunification, and asylum, while often remaining vague, has been or will be expanded in Austria, France, Hungary, Ireland, Luxembourg, Portugal, and Spain to include same-sex couples to differing degrees and in different areas. On the other hand, Bulgaria, Estonia and Romania have consolidated or amended their legislation to specify that marriage is reserved for different-sex couples only, and to deny recognition of same-sex partnerships and marriages concluded abroad. The general situation, thus, signals the persistence of an uneven landscape with respect to freedom of movement and family reunification for same-sex couples.

Fifth, concerning the grant of international protection to LGBT people who are victims of persecution in their countries of origin, the 2008 report found that the inclusion of sexual orientation as a ground of persecution had remained implicit in the legislation of eight Member States. This update shows that the total number of Member States which explicitly consider lesbian, gay and bisexual (LGB) people as a ‘particular social group' has now risen to 21, which signals a clear trend towards legislative inclusion of LGB people as potential victims of persecution. The situation concerning gender identity remains, however, very unclear. Furthermore, this update examines the use of 'phallometric testing' in the Czech Republic to establish the credibility of asylum claims based on sexual orientation. Read more about the 'phallometric testing' here.

Sixth, concerning the ban on the ‘promotion' of homosexuality and same-sex relations to minors or in public, this update finds that Lithuania constitutes the only recent example of such legislation. In contrast, a number of Member States have taken action to foster education and dialogue, with the aim of challenging negative attitudes towards homosexuality and LGBT people, namely Estonia, France, Germany, the Netherlands, Spain and the UK.

Corrigendum:

According to information about the material scope of non-discrimination legislation and equal treatment of same-sex partners, Hungary was inadvertently considered in this report in a category that does not reflect the legal situation. Please note that Hungary has extended its protection beyond the context of employment, to prohibit sexual orientation discrimination in all areas covered by the Racial Equality Directive (see pp. 7, 19 and 20).

In addition, entry and residence rights are the same for married couples and registered partners in Hungary, for the purposes of both Act No. 1 of 2007 on the free movement of persons and Act No. 2 of 2007 on the admission and residence of third-country nationals (see pp. 8, 47, 48, 51 and 53).

Furthermore, the Portuguese asylum law has been replaced by Act No. 27/2008 of 30 June 2008. Article 2(2) of this Act establishes that ‘a specific social group may include a group based on gender identity or a common characteristic of sexual orientation' (see pp. 8 and 55). Moreover, the asylum law in Malta was amended by Legal Notice 243 of 3 October 2008 on Procedural standards in examining applications for refugee status regulations; Article 18(d)(iii) now stipulates that ‘a particular social group might include a group based on a common characteristic or sexual orientation' (see on pp. 8 and 55).

In relation to the issue of hate crimes, in Greece, Article 23 of Law 3719/2008 provides for an aggravating circumstance in cases of hate crime based on sexual orientation (see on pp. 8, 42-43). In Slovenia, aggravating circumstances for murder only include what could be described as homophobic intent (Article 116 in conjunction with Article 131 of the Penal Code) (see pp. 8, 42-43).

The report below substitutes the version published on 30 November 2010.

More on this topic:

  • Press release: Combating homophobia, transphobia and discrimination: EU countries moving at different speeds  
  • Country thematic studies: These updated thematic studies constitute the background information drawn on by the FRA in order to compile its comparative report 'Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity, 2010 Update, Comparative legal analysis'
  • Synthesis report: This synthesis report builds on previous FRA legal and social research from 2008 and 2009, enabling, for the first time, a review of legal trends.