Sexual Orientation Discrimination in the European Union: The Framework Directive and the Continuing Influence of the European Parliament
| Author | Mark Walters |
| DOI | 10.1177/135822910700800404 |
| Date | 01 March 2007 |
| Published date | 01 March 2007 |
International Journal
of
Discrimination and the Law,
2007,
Vol.
8,
pp. 263-293
1358-2291/2007
$10
©
2007
A B Academic Publishers. Printed
in
Great Britain
SEXUAL ORIENTATION DISCRIMINATION IN THE
EUROPEAN UNION: THE FRAMEWORK DIRECTIVE AND
THE CONTINUING INFLUENCE OF THE
EUROPEAN PARLIAMENT
MARK
WALTERS*
ABSTRACT
This article examines the effectiveness
of
sexual orientation discrimination laws
prescribed by the European Union. In particular, the article critiques Article
13
of
the Treaty Establishing the European Community, and the Framework Direc-
tive which was established under the powers conferred by it.
It
is
argued that the
Framework Directive
is
too restrictive in its scope, in terms
of
the areas
of
life it
covers (i.e. employment only), and that the exceptions to its provisions are unjustly
broad. Analysis
is
also made
of
recent case law from both the European Court
of
Justice and the European Court
of
Human Rights in an attempt to demonstrate
the progressive but limited nature
of
this area
of
law. As a main theme, the article
examines the important role that the European Parliament has had, and continues
to have, on the evolution
of
sexual orientation discrimination law and more
broadly, gay and lesbian rights within the European Union.
INTRODUCTION
On
the
18th
of
January
2006
the
European
Parliament
convened
to
discuss
one
issue -
homophobia.
1
The
problem
of
homophobia
and,
in
particular,
sexual
orientation
discrimination
had
yet
again
come
to
the
fore
after
various
Non
Government
Organisations
reported
human
rights violations
against
gay
men
and
lesbians2
in
several
European
countries
(Human
Rights
Watch
2006).
As
one
Member
of
the
European
Parliament
explained,
the
debate
was
not
about
homosexuality
but
'about
homophobia
...
[and]
an
issue
about
human
rights
...
'
(Stubb
2006).
The
debate
was followed
by
the
signing
of
the
European
Parliament
Resolution
on
Homophobia
in
Europe
(overwhelmingly
passed
by
468 votes
for
to
149 against).
The
Resolution
has
provided
a fresh
platform
for
the
discussion
of
what
needs
to
be
done
throughout
the
European
Union
(EU)
to
combat
sexual
orientation
discrimination
and
is
the
impetus
for
this article.
264
Currently,
EU
law
prohibits
sexual
orientation
discrimination
within
the
area
of
employment
only
(The
Framework
Directive).3
This
means
that
all
other
areas
of
life including health,
education
and
social security,
to
name
just
a few,
are
left
unprotected.
Further,
the
transposition
of
EU
anti-discrimination laws
has
varied resulting
in
inconsistent
anti-discrimination
laws between
Member
States.
These inconsistencies
have
led
to
major
inequalities between
countries.
The
European
Parliament
has
consistently identified
various
Member
States
who
are
themselves
promoting
discrimina-
tion
against
gay
men
and
lesbians.4
The
defiance
shown
by
these
EU
States
over
gay
and
lesbian rights
means
that
'persuading'
them
to
produce
anti-discrimination
laws
through
domestic legisla-
tion
will be
no
easy task.
As
such,
EU
law
must
be
used
to
enforce
consistent
anti-discrimination
laws.
This
article
looks
at
the
history
of
sexual
orientation
discrimina-
tion
laws prescribed
by
the
European
Union
in
order
to
protect
gay
men
and
lesbians.
In
particular,
the
article examines
the
impact
that
Article
13
has
had
(and
may
have)
on
the
EU's
potential
to
create
new
directives
in
this
area.
5 Critical analysis
of
the
Framework
Directive which
prohibits
sexual
orientation
discrimination
in
the
area
of
employment
is
made.
It
is
argued
that
the
Directive is
too
restrictive
in
its scope
and
must
be
amended
to
include
the
prohibi-
tion
of
discrimination
in
other
areas
of
life
such
as
those
mentioned
above.
Analysis
of
recent case law
from
both
the
European
Court
of
Justice
(ECJ)
and
the
European
Court
of
Human
Rights
(the
Court)
is
made.
The
interaction
between
both
courts
has
become
important
in
helping
to
create a progressive
movement
towards
greater
protection
from
sexual
orientation
discrimination.
However,
it
is also stressed
that
European
law
in
the
area
of
sexual
orientation
discrimination
is still limited.
With
the
EU
currently
experiencing ideological
and
structural
changes
this article highlights
the
future
possibilities
of
legislating
in
the
areas
of
equality
and
non-discrimination. However,
it
must
be
emphasised
that
at
the
same
time
the
EU
will face fierce
opposition
in
implementing
laws
to
protect
gay
men
and
lesbians
when
continuing
with
its
expansion
project
into
Eastern
Europe.
This
is because
many
gay
men
and
lesbians here face extreme
discrimination
motivated
by
cultural
and
religious disquiet
about
homosexuality
(Human
Rights
Watch
2006;
International
Lesbian
Gay
Association
-
Europe
2006;
Statewatch
2006;
Rosenbloom
1996;
International
Gay
and
Lesbian
Human
Rights
Commission
1996;
The
Association
of
LAMDA
groups
1994).
For
example
just
recently
Poland,
Latvia
and
Lithuania
have
all legislated
to
ban
same
sex unions.
6
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