Over the past year, headlines have emerged that will be worrying to any supporter of LGBTQ rights. At the forefront of such news was Poland with assaults on the community since the Białystok Pride March attack in 2019 , the establishment of ‘LGBT-free’ zones , and the President denouncing the movement as ‘worse than communism’ . This intolerance is also reflected in other EU Member States where campaigns for equality have either stalled or have seen their successes undone by opposing groups .
Paradoxically, in parallel with these events, the central EU institutions have made significant commitments to combating discrimination against this group. The first ever EU LGBTQ equality strategy was launched in 2020, expressing a commitment to ‘a Union of Equality’  and Ursula von der Leyen, President of the European Commission, made it clear that any kind of discrimination against LGBTQ individuals is intolerable within the Union .
This dichotomy makes it apparent that the there is still a long road ahead for achieving equality for LGBTQ people and the comments from the Commission President acknowledge that evaluation and reform is necessary. To this end, this article seeks to use these recent developments as an impetus to briefly explain and evaluate the current law on LGBTQ rights in the EU and highlight those key areas where further development is needed.
The Protection that the EU Does Offer
Before exploring the gaps in EU protection of LGBTQ people, it is useful to offer a brief overview of the current rights that the Union offers. When it comes to an individual’s sexual orientation, protection is both explicit and robust. Discrimination on this ground is expressly prohibited in some of the most fundamental treaties of the EU. Articles 10 and 19 of the Treaty on the Functioning of the European Union (TFEU) purport to make combating discrimination on various bases, including sexual orientation, a fundamental commitment of the Union . This is also reflected in article 21 of the EU Charter which asserts that “any discrimination based on any ground such as […] sexual orientation shall be prohibited” . EU Directive 2000/78/EC introduced this protection into employment law and directly prohibits discrimination based upon sexual orientation in the workplace. What is clear from these provisions is that there is a strong foundation upon which a person can expect their sexual orientation to be respected and safe from discrimination.
Whilst protection does exist to some degree for other members of the LGTBQ community it is not as explicit, particularly for those who do not identify as cisgender. There is no specific prohibition of discrimination on the grounds of gender identity in EU primary legislation . Instead, protection for this group is provided primarily by the decisions of the European courts. The ECJ has created a baseline obligation for Member States in relation to prohibiting such discrimination and has interpreted the prohibition of discrimination on the basis of ‘sex’ as to also refer to people who have undergone gender reassignment surgery .
Gaps in EU LGBTQ Rights Protection
The measures outlined above show that the EU has been seeking to improve LGBTQ rights and have made some commendable advancements in the protection of the community. However, these achievements are nonetheless open to criticism. There are some key areas where the EU fails to adequately ensure equality and protection to this community that has so recently become the focus of persecution.
The most notable gap is the EU’s failure to offer substantive protection from discrimination in areas of social rights, education and access to and supply of goods and services available to the public. This is despite the introduction of the Racial Equality Directive  that prohibited this kind of discrimination in these areas on the basis of race or ethnic origin. Although there has been a proposed Directive since 2008 that would fill this gap, it is yet to be implemented after stalling in the European Parliament. What this means is that LGBTQ people are still vulnerable to discrimination in fundamental areas including healthcare, education, and housing that other minorities have been protected against.
More nuanced issues arise when it comes to EU law around gender identity and three problems can be identified. Firstly, there is an over-reliance on the ECJ and other secondary measures when it comes to protecting an individual’s gender identity. Whilst such measures are not any less binding on Member States than primary legislation, this reliance on secondary measures implies a preference for the protection of sexual orientation over gender identity. This in turn indicates that central EU institutions fails to recognise the significance of adequate, formalised protections of gender identity. Such failures may also threaten to reinforce the idea in some Member States and parts of the EU population that discrimination on the basis of gender identity is, in comparison to sexual orientation discrimination, a lesser evil and so not worthy of the same degree of protection.
Secondly, and in close relation to the previous point, there is the context in which issue surrounding gender identity arise. When such matters come before the ECJ, it is primarily in the context of gender reassignment surgery . This medicalises the issues that trans people face and frames transgender equality as contingent upon medical interventions , thus invalidating the applicability of EU protection for those people who cannot, or will not, seek gender reassignment procedure. Given that the ECJ have limited control over the issues that are raised before it, this is not a critique of the court itself. It is instead a critique of the European Parliament and Commission for failing to adopt more universal primary measures and facilitating this clinical approach to gender identity.
Finally, there is the apparent ignorance of the EU when it comes to the discrimination faced by those who do not identify as either transgender or cisgender but gender-fluid or non-binary. The decisions of the ECJ cover only those who have undergone gender re-assignment surgery, excluding individuals who identify as gender-fluid or non-binary. It may be that the current protection offered to transgender individuals can be interpreted to cover those who do not adhere to such a cis-normative framework, but this has not yet been tested in the EU courts. Nonetheless, as with transgender people, it is still preferable for the central EU institutions to adopt primary measures that offer the same standard of protection as is given on the basis of sexual orientation.
The purpose of this article is to highlight the areas in which EU protection of LGBTQ people is not as strong as it could be. The EU does offer some protection to this group, but this comes with some significant limits. Most notably, this stems from the lack of protection offered to those who are gender-fluid or non-binary, leaving a large portion of the LGBTQ community outside of the explicit prohibition on discrimination. But even when protection is available it is not to the standard that it could and should be. The LGBTQ community receives less protection than other persecuted groups in important social rights areas such as housing and education and any protection that is offered has been achieved through secondary means which comes with its own serious issues.
1 Jacek Dehnel, “The Struggle for LGBT Equality: Pride Meets Prejudice in Poland,” The Guardian, July 28, 2019, https://www.theguardian.com/world/2019/jul/28/lgbt-gay-rights-poland-first-pride-march-bialystok-rage-violence.
2 Lucy Ash, “Inside Poland's 'LGBT-Free Zones',” BBC News, September 20, 2020, https://www.bbc.co.uk/news/stories-54191344.
3 BBC News, “Polish Election: Andrzej Duda Says LGBT 'Ideology' Worse than Communism,” June 14, 2020, https://www.bbc.co.uk/news/world-europe-53039864.
4 See, for instance, Hungary’s proposed ban on same-sex adoption.
5 European Commission “Union of Equality: LGBTQQ Equality Strategy 2020-2025” November 12, 2020, https://ec.europa.eu/info/sites/info/files/LGBTQq_strategy_2020-2025_en.pdf.
6 Reuters, Source: “'No Place in EU': Ursula Von Der Leyen Speaks out against Poland's LGBT-Free Zones – Video.” The Guardian. Guardian News and Media, September 16, 2020. https://www.theguardian.com/world/video/2020/sep/16/no-place-in-eu-ursula-von-der-leyen-speaks-out-against-polands-lgbt-free-zones-video.
7 European Union, “Consolidated version of the Treaty on the Functioning of the European Union”, 26 October 2012, OJ L. 326/47-326/390; 26.10.2012, available at: https://www.refworld.org/docid/52303e8d4.html [accessed 29 November 2020].
8 European Union: Council of the European Union, “Charter of Fundamental Rights of the European Union” (2007/C 303/01), 14 December 2007, C 303/1, available at: https://www.refworld.org/docid/50ed4f582.html [accessed 29 November 2020].
9 Marjolein van den Brink and Peter Dunne, “Trans and intersex equality rights in Europe – a comparative analysis”, European Commission, November 2018.
10 P v S and Cornwall County Council C-13/94 ECR I-2143.
11 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.
12 See P v S and Cornwall, Goodwin v the United Kingdom  22 EHRR 123 for two examples.
13 Marjolein van den Brink and Peter Dunne, “Trans and intersex equality rights in Europe – a comparative analysis”, European Commission, November 2018.