A key focus of the European Union (EU) is the protection of the rights of lesbian, gay, bisexual, transgender, intersex, queer, and asexual people ('LGBTQIA+'). In the Netherlands, the government is also working towards equal rights for LGBTQIA+ individuals. However, within the EU, there are countries that do not adequately protect these rights. Some countries even restrict them. Examples include the removal of non-biological parents' names from the birth certificates of their children in Italy, LGBTQIA+ free zones in Poland, and Hungary's ban on discussing topics such as homosexuality and gender change in schools. How is it that these EU member states limit the rights of LGBTQIA+ individuals while the EU is actively trying to protect these rights? We discuss this topic with Masuma Shahid, PhD candidate at Erasmus School of Law.
Protection of LGBTQIA+ rights in the EU
The EU considers it important to protect LGBTQIA+ rights. As an example, Shahid cites the list of action points established by the European Commission in 2015 to improve the position of LGBTQIA+ individuals. "This list was further concretized in 2020 with the publication of a strategy for the years 2020-2025 to promote the equality of LGBTQIA+ individuals. Member states and actors at all levels are brought together in a common effort to address LGBTQIA+ discrimination by 2025 more effectively," she says.
Shahid notes that not only the European Commission is involved in protecting LGBTQIA+ rights: "The European Parliament, representing the European population, also has an LGBTQIA+ subgroup with the goal of promoting and protecting the rights of the queer community." The LGBTQIA+ subgroup has adopted several resolutions on this matter.
Violated LGBTQIA+ rights
When European countries fail to protect the rights of LGBTQIA+ individuals, the EU can take various actions. Shahid indicates that the European Parliament often speaks out against the violation of LGBTQIA+ rights, whether within or outside the EU. "An example is the resolution earlier this year, adopted against the anti-homosexuality legislation of the Ugandan government. The European Commission also does not remain silent on such occasions," Shahid says. She explains that the Commission publishes an annual report measuring progress in protecting LGBTQIA+ rights. The report includes measures member states take to promote LGBTQIA+ equality and whether countries implement EU legislation (well). The European Commission also has the authority to address member states that do not comply with rules, and as a last resort, a case can be brought before the Court of Justice of the EU.
Action by member states
The EU can take various actions against member states that do not protect the rights of LGBTQIA+ individuals. The question is whether individual member states can act against violations by other member states. Shahid responds: "In theory, the Netherlands could also initiate a European case against another member state and bring it before the Court of Justice of the EU. In practice, member states often do not do this to maintain good relations between countries. The Commission often takes on the dirty work and speaks out."
An example of the European Union and individual member states jointly advocating for the protection of LGBTQIA+ rights is the case of Hungary. The European Commission initiated this case after Hungary adopted anti-LGBTQIA+ legislation in 2021. Subsequently, the European Parliament and fifteen member states, including the Netherlands, joined the Commission. In this way, member states also express their disagreement with anti-LGBTQIA+ legislation in Hungary. The European Court is expected to make a ruling in this case in 2024. Shahid expresses her hope that the case against Hungary will be resolved quickly.
If member states and the EU disagree with a country and its legislation or policies, expelling that country from the EU is impossible. This is true even if, for example, a country like Hungary adopts anti-LGBTQIA+ legislation. Shahid explains: "A country can voluntarily leave the Union; we saw this with 'Brexit.' What the Union can do is economically impact the country by withholding subsidies, or it can revoke the member state's voting rights." These are other forms of retaliation to encourage a member state to comply with EU rules and norms.
Balancing fundamental rights
In 2019, various local authorities in Poland began establishing LGBTQIA+ free zones. According to Poland, these zones welcome LGBTQIA+ individuals, but it is not allowed to promote the LGBTQIA+' ideology' in those areas. A reason for establishing these zones is the prevailing Catholic faith in Poland. Shahid explains the clash of fundamental rights: "It cannot be said that the protection of one type of right weighs more than the other. Freedom of expression and freedom of religion are highly valued in the EU. However, the protection of other human rights is just as important." Shahid explains that when rights collide concerning LGBTQIA+ rights, the EU often resorts to its economic integration agenda. From this perspective, the EU will assess whether rights are being infringed. If they are, and the free movement within the EU is at stake, intervention in favour of LGBTQIA+ rights often occurs. "It is fascinating to see how the EU and the Court of Justice of the EU, in these moments, protect human rights in a very economic but effective way. This approach is different from that of the other court in Europe, the European Court of Human Rights."
Non-hetero surrogacy in Italy
Since 2022, Meloni has been the Prime Minister of Italy. Under her leadership, Italy has taken a different direction regarding LGBTQIA+ rights, including surrogacy for non-heterosexual couples. In early 2023, the Italian government ordered all Italian municipalities to stop registering certain children of LGBTQIA+ couples. Only the biological parent is now recognized in Italy. In some municipalities, registered children of LGBTQIA+ couples are being removed from the records. Shahid emphasizes that protecting the child's rights, as laid out in EU treaties, needs to be considered. "Based on international law, every child also has the right to maintain their identity, including nationality and family relationships. For this reason, the European Parliament has sent a question to the European Commission to find out how the rights of Italian children can best be safeguarded within the EU." Shahid says that the European Commission will need to investigate the question first, propose plans to address the issue, and may suggest further secondary legislation. She emphasizes the seriousness of the situation in Italy and notes that developments need to be closely monitored.
Improving LGBTQIA+ rights
In addition to closely monitoring developments in Italy, Shahid would like the European Commission to pursue its own strategy on LGBTQIA+ protection more rigorously and take stricter measures against member states systematically violating LGBTQIA+ rights. Shahid also remarks: "Finally, it would be nice if the European Commission continues to pressure the Council to put the general non-discrimination directive back on the agenda and keeps pushing until progress is visible. When Frans Timmermans was still in the Commission, he indicated he would take this up. Hopefully, this will still happen in the coming years, and the protection of LGBTQIA+ rights will be further anchored in EU law."