LGBT & EU Legislation: An Overview of the Recent Developments

By Júlia-Janka Gáspárik

The EU’s motto is “United in Diversity”[1], which means that it is a shared community, but member states also preserve their national characteristics. At the same time, this motto can also sum up one of the biggest problems of the EU: the definition of the limit between having common laws and undermining a country’s sovereignty. LGBT (Lesbian, Gay, Bisexual, Transsexual) rights are a very delicate part of the EU legislation, trapped somewhere between universal (and EU-protected) human rights and national sovereignty. The EU – opting towards an ever-closer union – is trying to bring together its member states with social policies in order to reach an integrated society also on the cultural level, and not only on the economic and monetary ones. On the other hand, anti-LGBT/pro-traditional family groups often use the argument of sovereignty against the common EU LGBT framework[2]. This is what partially makes this issue of LGBT so complicated: some people argue that this minority should be protected with a stronger mechanism at EU level, while others say that it would undermine their countries’ sovereignty.

The European Union law mentions the issue of LGBT only in terms of discrimination: discrimination based on sexual orientation is illegal and rights pertaining to this aspect are protected in the Charter of Fundamental Rights of the EU[3]. NGOs and civil right organizations are fighting for the rights of the LGBT people. However, since the attitude towards sexual orientation is considered to be a cultural-societal-religious issue, the EU has not established a compulsory legal framework in any of its member states. On the other hand, it can be argued that this is not a societal issue but one of fundamental rights. When learning about LGBT in the EU, it also becomes clear that the main obstacle in not introducing the civil union and same sex marriages in some European countries is the predominant position of religious values in that state[4].
This article explores the complex issue of LGBT rights in the EU and the member states by examining the issues’ cultural and human rights facade. It will be illustrated with one case, namely the recent case of Coman-Hamilton (Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Others).

Coman-Hamilton & Romania

In 2016, a particular case had started in Romania concerning LGBT rights. A homosexual couple formed of a Romanian citizen, Adrian Coman, and a US citizen, Robert Hamilton, applied for permanent residence permit in Romania. The couple had legally married in 2010 in Belgium after living together for four years in the United States[5]. They claimed residence permit in Romania based on freedom of movement in the EU for family members, such as spouses, a right established in Directive 2004/38/EC point 2 of Article 2[6]. This is the legislation which declares the right of non-EU citizens (Hamilton) to reside on the territory of the union with their EU-citizen partner (Coman). Despite the existence of this directive, their application for the permit was rejected by the Romanian authorities based on the national law, which does not recognize same-gender marriage or even civil union, hence Mr. Hamilton was not considered to be the spouse of Mr. Coman.[7] Following the decision, the couple addressed the European Court of Justice, accusing the Romanian administration bodies of discrimination. In June 2018, the ECJ ruled that all EU member-states have to respect the residency rights of spouses of the same-sex, who planned to live together in a specific country, even if they have not legalised same-sex marriage. Let us see now, how this decision was made.

The freedom of movement in the EU, described in the above-mentioned article 2(2) (a) of directive 2004/38 says that non-EU persons are allowed to reside with their EU family members. Family members can be for example children, grandchildren or spouses. The European Union law does not explicitly describe whether the spouse can be from the same gender or only a person from the opposite one. Mr Coman addressed the Court of Justice of the European Union (CJEU) on the basis of discrimination against sexual orientation[8]. The issue of the Coman-Hamilton case lies in two questions: what a spouse is and whether this is discrimination? The reason this case was particularly important for EU law is that the decision had influence in several other countries through jurisprudence. When the CJEU established that the “spouse” could also be a person from the same gender, the decision became effective, unrelated to the member-states’ attitude towards the LGBT community. In Lithuania, Latvia, Bulgaria, Poland and Slovakia, marriage – or even civil union between two partners of the same sex – is still illegal. The case of Mr Coman and Mr Hamilton meant that in a similar situation, these countries would also have to give residence rights to legally married same sex partners.
The couple addressed the CJEU, as they believed the Romanian national court did not solve the issue lawfully. The CJEU picked up the case, as there are EU laws against discrimination based on sexual orientation in its Charter of Human Rights[9]. The case of Mr Coman and Mr Hamilton is an interesting example as it pointed out a discrepancy and a blurry spot between national legislation and EU law. It was also a debate between supporting common EU-level legislation or supporting national sovereignty.

Religious freedom versus LGBT Rights?

The case of Hamilton and Coman points out also in more general terms one of the biggest problems of the EU, the dilemma between what should be a national competence and what should be decided at EU level. Human rights are protected by the EU and the United Nations (UN). But it is still not clear to what extent LGBT rights are human rights (legally speaking). If you approach the LGBT issue from a human rights perspective, then it should be compulsory in each member states to introduce at least the right to civil union between same-sex partners. On the other hand, there are many religious groups in the member states who think that this decision would be wrong, as homosexuality is a ‘sin’[10]. Making member states introduce the civil union at EU level might also trigger protests and maybe increase homophobic sentiments, which would push the issue in the wrong direction[11].

What about “European values”?

The European Union lists human dignity, human rights, freedom and equality as four out of six core values[12]. Taking the example of Mr Coman and Mr Hamilton, their case touches all these four core values. Being recognized by your country is a matter of human dignity, having the right to spend your life with your loved one, touches both the issue of human rights and freedom. Equality is also involved in this case, as they were not accepted as spouses unlike heterosexual couples. This means that they are not equal, in regards of the law, to a family consisting of a man and a woman. The member states, when they entered the EU, accepted these values. Holding today the same citizenship means also that it is applicable for everyone. This small case shows the practical side of the concept of sharing common values on the level of the community which would also justify the existence of a common passport.
United in diversity does not justify the sovereignty claims of religious groups. The diversity in the motto applies to cultural matters which do not limit one’s personal freedom. The lack of acceptance of civil union or marriage for same-gender couples, as the example shows, hinder four of the six values of the European Union.

If we turn the case around and analyse it from the opposition’s perspective, the same results will come out. As mentioned before, religious groups are against same-sex marriage as they claim that it would undermine their sovereignty and religious freedom. The question is, in what aspect of their life would they be limited if homosexual people would marry? Allowing same sex partners to have a legal contract between them would not affect anyone but the couple itself. The people coming from the organizations defending the so-called “traditional family” would not be the subjects of these laws, as no aspect of it would affect their lives.
The LGBT issue in the European Union was most of the time shaped by jurisprudence in cases involving same-sex couples. An example of this is the Tadao Maruko case in Germany, regarding the right to receive a pension after the death of a same sex partner. This case was helpful in the establishment of the anti-discrimination law[13]. We could also mention the Lisa Jacqueline Grant and South-West Trains Ltd case, which was important in the establishment of non-discrimination in transportation[14]. The judgement stating that Mr Hamilton must get a permanent residence permit in the EU is another milestone in EU and in LGBT law, bringing us a little closer to an integrated union.

In conclusion, this case showed the issue of the discrepancy between national and European law, and also how the sovereignty of the member states can leave room for discrimination. The member states often use freedom of religion to justify not giving legal recognition for same sex couples. This situation harms fundamental freedoms of people and core values of the EU. One solution could be to have a common framework which gives rights for LGBT people living throughout Europe, for instance.

[1]“The EU motto” europe.eu, last update: 22 January 2018 https://europa.eu/european-union/about-eu/symbols/motto_en
[2] “EU-Wide Recognition of Member States’ Gay Marriage, Civil Partnership a Step Closer” GLBT, 25 November 2010 http://wglb-tv.blogspot.nl/2010/11/eu-wide-recognition-of-member-states.html (accessed 19 January 2018)
[3] “LGBTI”, European Union Agency for Fundamental Rights, http://fra.europa.eu/en/theme/lgbti (accessed 20 January 2017).
[4]Florin Buhuceanu “Traditional values, Religion & LGBT rights in Eastern Europe” Accept Romania http://accept-romania.ro/wp-content/uploads/2014/10/Traditional-values-religion-and-LGBT-rights-in-Eastern-Europe-no-bleed-40-pages-website1.pdf (accessed 19 January 2018).
[5] Jamie Warehem “This couples landmark case could change the rights of all EU gays” Gay Star News (24 November 2017) https://www.gaystarnews.com/article/gay-couple-challenge-eu/ (accessed 19 January 2018).
[6] Dr Alina Tryfonidou “Awaiting the ECJ Judgment in Coman: Towards the Cross-Border Legal Recognition of Same-Sex Marriages in the EU? EU Law Analysis (5 March 2017) ,http://eulawanalysis.blogspot.nl/2017/03/awaiting-ecj-judgment-in-coman-towards.html (accessed on 19 January 2018).
[7] Kit Gillet, “Romania Gay Marriage Case Could Have Outsize Impact in Europe” The New York Times, 21 November 2017, https://www.nytimes.com/2017/11/21/world/europe/romania-ecj-gay-marriage.html, (accessed 19 January 2018).
[8] Dorota Pudzianowska, Krysztof Smiszek, “Combating Sexual Orientation Discrimination in the European Union” European Commission, http://ec.europa.eu/justice/discrimination/files/sexual_orientation_en.pdf (accessed on 21 January 2018).
[9] Ibid.
[10] Dr Alina Tryfonidou “Awaiting the ECJ Judgment in Coman: Towards the Cross-Border Legal Recognition of Same-Sex Marriages in the EU? EU Law Analysis (5 March 2017) ,http://eulawanalysis.blogspot.nl/2017/03/awaiting-ecj-judgment-in-coman-towards.html (accessed on 19 January 2018).
[11]Florin Buhuceanu “Traditional values, Religion & LGBT rights in Eastern Europe” Accept Romania http://accept-romania.ro/wp-content/uploads/2014/10/Traditional-values-religion-and-LGBT-rights-in-Eastern-Europe-no-bleed-40-pages-website1.pdf (accessed on 19 January 2018).
[12]“Values” Mosakkii ry http://europarlamentti.info/en/values-and-objectives/values/ (accessed 21 January 2018)
[13] “Judgment of the Court (Grand Chamber) of 1 April 2008. Tadao Maruko v Versorgungsanstalt der deutschen Bühnen.” InforCuria http://curia.europa.eu/juris/liste.jsf?num=C-267/06 (accessed 21 January 2018).
[14]“Judgment Of The Court In Case C-249/96, 17 February 1998 (1) (Equal treatment of men and women; Refusal of travel concessions to cohabitees of the same sex)” InfoCuria http://curia.europa.eu/juris/document/document.jsf?text=&docid=43629&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=111152 (accessed 20 January 2018).