ILGA-Europe together with ERA – the LGBTI Rights Association for the Western Balkans and Turkey, presents this LGBTI Enlargement Review 2024 assessing gaps in legislation and policy for the protection and advancement of the human rights of LGBTI people in the enlargement countries, and identifying priorities. The fundamental rights of LGBTI people need to be a core part of the accession process and EU institutions need to work with the authorities in each accession country to ensure the gaps are tackled and important pieces of legislation are advanced over the next year.

The EU enlargement process has leverage and needs to be fully used to support the adoption of important legislation protecting the fundamental rights of LGBTI people, as well as call out when governments advance laws that go against EU principle of fundamental rights, democracy and rule of law.

Over the last year, not only have we seen the worrying trends of governments challenging the rule of law, an increase in LGBTI phobic hate speech by politicians and religious leader continuing and foreign influence being exerted to challenge advances on human rights continue, but in a number of candidate and accession countries, ruling parties have been pushing legislation forward that is actively limiting the human rights of vulnerable groups including LGBTI people. We have also seen governments putting forward Russian style foreign agent laws in Georgia and Republika Srpska in Bosnia- Herzegovina. LGBTI rights are being used to polarise society, often to distract from a broader undermining of democracy and the rule of law in these countries and other more important socio- economic and political issues.

The annual enlargement report process is a key moment to remind governments of the criteria that need to be met and point out where advancement on rule of law and the protection of fundamental rights are needed to advance the process. While in some countries progress has been too slow and the EU should ensure that important legislative processes are finally seen through (such as the legal gender recognition in Montenegro and partnership recognition for same-sex partners and a new hate crimes legislation in Ukraine), it is important to be very clear that the attempts to put forward laws that actively cancel EU fundamental rights cannot be tolerated and will need to lead to a reconsideration of the status granted by the EU.

It is especially important in this context that the EU insist that the protection of LGBTI people’s human rights are a core part, as they are often falling behind the requirements. The recommendations regarding the human rights of LGBTI people in the EU enlargement reports are key in holding governments accountable to the commitments made. This also means putting an emphasis on ensuring proper implementation of the laws protecting and granting access to fundamental rights. It is key that the EU makes this a priority in all the countries, also by supporting initiatives for training and education.

Through the region of all enlargement and candidate countries, we can clearly see how foreign forces are gaining influence and are challenging alliance with EU values and fundamental rights. The strength of disinformation and anti-LGBTI sentiment being spread across the Western Balkans region, particularly in Serbia, Bosnia and Herzegovina, Montenegro and North Macedonia, has intensified even more since Russia’s war in Ukraine, with LGBTI people and civil society as targets of smear campaigns, hatred and hostility, often originating from the government level, pro-Russia forces and religious leaders. We can see the anti-gender movement gaining more ground, spreading countless hostile and hateful statements and protests, disturbing public order and democratic processes. Politicians, religious leaders and newly formed organisations were among the most common perpetrators of hate speech, which translates into actual hate and violence against LGBTI people.

The anti-rights movement, which is well funded and coordinated, has taken root strongly in the Western Balkans region in the last years. In order to stand against this increasing influence of anti- gender forces and foreign governments trying to undermine the EU rule of law and democracy, strong civil society organisations are key as they continue to build social acceptance for fundamental rights, support vulnerable groups and are a corner stone of democratic societies.

The fact that LGBTI organisations in the Western Balkans have seen EU support decrease has further weakened their work and social cohesion in those countries. A number of LGBTI organisations had to close, and many at brink of closing, while they are facing organised attacks against their physical spaces, as well as against the legal framework which protects and guarantees their equal rights. The EU must be a supporting partner to these organisations, including their views meaningfully in consultations and negotiations, modelling civil dialogue as an important part of a democratic society, and continuing to support LGBTI organisations in the region through funding in the extremely fragile context.

We, the undersigned equality and anti-discrimination organisations, call on the European Union’s leaders and European Institutions to ensure equality, anti-racism, and fundamental rights are a priority during the next legislative mandate.

We noted the advances in Equality which have been made by the European Union during this mandate. The appointment of the first-ever Commissioner for Equality was a welcome and much-needed initiative. It has shown that the European Commission is committed to advancing the values of equality enshrined in Article 2 of the Treaty on the European Union and to its duties under Article 10 of the Treaty on the Functioning of the European Union.

Equality and non-discrimination policies and initiatives became more visible and were addressed through several proposals such as standards for equality bodies, a Directive to combat violence against women, a legislative proposal on the European Disability Card and Parking Card, the action plan against racism, and a proposal for cross-border recognition of parental rights. These initiatives were coupled with strategies on gender equality, LGBTIQ and disability, as well as the EU Roma strategic framework and a Green Paper on Ageing.

However, the EU is far from being a Union of Equality- this is a work in progress, and right now, we witness rising backlash, racial injustice, inequality and discrimination. This needs urgent attention both at the EU and national levels.

For this, we specifically call on the European Union to put in place comprehensive legal protection against discrimination in the EU. We need to guarantee equality of treatment regardless of who you are or where you live in the European Union.

We also call on specific actions to guarantee that the European Union’s Institutions have adequate resources and staffing to prioritise and mainstream equality and non-discrimination, with special attention to vulnerable groups and intersectional discrimination:

• Appoint an EU Commissioner with a strong mandate for Equality and Fundamental Rights.
• Strengthen the European Commission’s services working on equality, non-discrimination and anti-racism, especially by establishing a new Directorate-General for Equality and Fundamental Rights.
• Revise and introduce strong strategies on all grounds under the Equality Framework beyond 2025 and ensure their mainstreaming in all policy areas.
• Ensure that the Equality Task Force has a strong mandate to ensure cooperation between different services on the implementation of the Equality Frameworks and that it works transparently and in close consultation and cooperation with European Equality networks.
• Host an annual “Equality Forum,” gathering policymakers, civil society, and other interested actors to evaluate and develop initiatives for realising a Union of Equality. The Forum should focus particularly on intersectional equality.
• Create an EU Council formation on Equality.
• Ensure the next EU budget properly funds civil society organisations working on equality, non-discrimination and anti-racism.
• Ensure discrimination is also addressed in the work of the EU in external action, international cooperation and humanitarian action.

We remind leaders that all initiatives must meaningfully involve equality organisations, anti-racism organisations and organisations representing the groups most subject to discrimination.

It is essential that the Union’s decision-making process is transparent, and organisations are properly resourced and supported to guarantee their active involvement.

It is also fundamental to ensure that staff working at the EU Institutions properly reflects the European population, not only in terms of nationality but also in terms of diversity of gender, race, ethnic or social origin, membership of a national minority, disability, age,  sexual orientation, gender identity, gender expression, and variations of sex characteristics. We call on specific action to ensure it and to guarantee training to all staff training on equality and non-discrimination.

Only by working together will the European Union truly become a Union of Equality that reflects its motto of “United in Diversity”.

The undersigned organisations remain committed to supporting the European Institutions in achieving this crucial objective.

Signatories

• European Disability Forum
• ILGA-Europe
• AGE Platform Europe
• European Network Against Racism
• ERGO Network
• OII Europe
• IGLYO
• EL*C
• TGEU – Transgender Europe

Additional Information

• Joint statement: “Building an inclusive European Union of Equality” in Word
• Joint statement: “Building an inclusive European Union of Equality” in PDF

Organisations’ work on the European elections:

• European Disability Forum: “”Building an inclusive future for persons with disabilities in the EU”
• ILGA Europe: “Come out 4 Europe”
• AGE Platform Europe: AGE Manifesto for the 2024 European Parliament elections
• European Network Against Racism: “A Europe for All”
• ERGO Network: “End Racism to build a stronger Europe”

Over the past few years it has become increasingly clear that many government-led violations of LGBTI rights in EU Member States go hand-in-hand with an undermining of the rule of law and democracy. This includes in particular the degradation of the independence of judicial systems and the media landscape.

Particularly stark among this year’s submissions is the continual problem of non-implementation of European court judgments, especially around the right of LGBTI people to respect for their private and family life and the best interests of their children, as well as judgments related to legal gender recognition.

Efforts by authorities to restrict civic space; legal harassment, threats, hate speech and smear campaigns against LGBTI human rights defenders; and inadequate implementation of hate crime and anti-discrimination laws also remained prominent in 2023.

Today, alongside five other international human rights organisations, we demand that the EU takes specific steps to ensure respect for the human rights of LGBTI people in Turkey in future EU-Turkey relations.

The LGBTI+ community in Türkiye is increasingly the target of discrimination, intimidation and violence, said the European Commission in its 2023 Enlargement Package published last week. It also points out that the activities of LGBTI+ organisations continue to be unduly restricted, LGBTI+ people and human rights defenders continue to be targeted with legal sanctions for participating in Pride events, and LGBTI+ people continue to face hate speech, stigmatisation, and smear campaigns.

According to our assessment and that of LGBTI+ human rights defenders these trends will intensify in the coming months.

After the May 2023 elections, Türkiye has explicitly expressed its desire for the EU to revive its accession process. Beyond the enlargement framework, EU leaders are considering options for engaging with Türkiye in areas of mutual interest, with the High Representative of the European Union for Foreign Affairs and Security Policy and the European Commission preparing a report on the future of EU-Türkiye relations ahead of the 14-15 December European Council. Indeed, in recent weeks, EU officials have also signalled an intention  to intensify dialogue and cooperation with Türkiye, including on issues such as visa facilitation, trade and investment, and migration.  

In light of these developments, we remind the EU and Türkiye that respect for rule of law and human rights must remain at the core of EU-Türkiye relations, regardless of the framework in which they develop. The EU’s accession process is anchored in the respect for fundamental rights, including those of LGBTI+ people, and such respect remains a cornerstone in all areas of the EU’s external action. We therefore call on the EU institutions to ensure that all discussions on EU-Türkiye relations – including the upcoming report due to be presented at the December European Council – take into account the human rights concerns we have outlined below, and that all steps toward engaging with Türkiye are used to promote tangible human rights improvements in the country. 

Hate speech against LGBTI+ people

Discrimination and hate speech which constitute incitement to hostility or violence against LGBTI+ people in Türkiye continued throughout 2023, often by high-level government officials, including the President. The run-up to the elections was marred by a high volume of anti-LGBTI+ statements from politicians, and smear campaigns against LGBTI+ people led by the ruling party. Since the election, pro-government media outlets have continued this alarming pattern of stigmatisation and discrimination.

In both September 2022 and 2023, the “Great Family Platform” organised anti-LGBTI+ marches in which some participants called for the banning of LGBTI+ organisations and events, and which led to commentaries justifying a call for the death penalty against LGBTI+ people. The promotional videos for the marches, in which LGBTI+ people were stigmatised, were approved by the Radio and Television Supreme Council (RTÜK) as public service advertisements. In 2022, the advertisement presented LGBTI+ people as a “virus,” and in 2023, the advertisement targeted so-called “LGBT propaganda.”

Türkiye is a party to many international treaties that prohibit discrimination, including on grounds of sexual orientation and gender identity. Among those most relevant to the violations described are the International Covenant on Civil and Political Rights (ICCPR), the United Nations Convention against Torture (CAT) and the European Convention on Human Rights (ECHR). The Turkish government has an obligation to protect everyone from discrimination, and should not be part of or show complacency towards any statements that could encourage discrimination and target a marginalized group, including LGBTI+ people.

We call on the EU to condemn discriminatory speech against LGBTI+ people and human rights defenders and to persist in urging Türkiye’s government and all its representatives to abstain from making statements that stigmatise and discriminate against LGBTI+ people, as such remarks put them at risk of harassment and violence. The EU should call for a prompt, impartial, thorough and effective investigation into any attacks and other forms of harassment against LGBTI+ people and for perpetrators to be brought to justice.

Freedom of peaceful assembly, in particular Pride events

This year’s Pride season in Türkiye began shortly after the legislative and presidential election, and spanned a number of weeks. A record number of Pride events were planned, despite blanket bans and the threat of police violence and detention of LGBTI+ human rights defenders.

LGBTI+ human rights defenders courageously defied political pressure and bans in order to claim their right to freedom of assembly and expression, but once again faced a number of fundamental rights violations. Across the country, LGBTI+ people and their allies were denied the right to exercise their rights to freedom of expression and peaceful assembly. The police used unnecessary and excessive force against protestors, and arbitrarily detained people participating in the events as well as bystanders.

Police intervened in at least 10 LGBTI+ rights related events and pride marches, detaining at least 224 people, including lawyers, journalists, human rights defenders, and foreign nationals. An opposition MP was also targeted and threatened with detention. At least 5 foreign nationals, including an Iranian LGBTI+ activist with international protection status, were held in removal centres for up to one month, facing deportation. The excessive use of force deployed during the police interventions violates the right to peaceful assembly, which is protected under domestic law and international treaties, including the European Convention on Human Rights.

In 2023, despite the continued anti-LGBTI+ rhetoric, bans and attacks on Pride marches, LGBTI+ human rights defenders continued their resistance with numerous successes, as many Pride events were organised, which once again underscores the strength and resilience of the LGBTI+ movement and people’s commitment to upholding fundamental rights and the rule of law in Türkiye.

However, 2023 was the ninth consecutive year since 2015 that LGBTI+ people have been subjected to blanket bans and restrictions on Pride events.

We call on the EU to demand Türkiye ends all arbitrary and disproportionate restrictions on the right to peaceful assembly, including the use of blanket bans, and protects participants of pride marches and other LGBTI+ events from any potential violence, as stipulated in Türkiye’s national legislation and international legal commitments.

New draft constitution

Earlier in 2023, the government proposed amendments to the Turkish Constitution on Article 41 on “protection of the family and the rights of the child.” The proposed amendment aimed to add to Article 41 that a “union of marriage can only be established between a woman and a man.” This definition of marriage explicitly discriminates against LGBTI+ people. Activists advocating for LGBTI+ rights are also concerned that such discriminatory amendments may pave the way for criminalising same-sex relationships and prohibiting LGBTI+ organisations from operating in the country.

We urge the EU to exert pressure on Türkiye to ensure that any revision of its Constitution includes a strong commitment to upholding the right to non-discrimination, in accordance with the various international treaties to which Türkiye is a party.

Half-way through, the evaluation of LGBTI organisations is positive, but also pointing clearly to where more is needed to ensure the implementation of the strategy in all areas of EU competence and to fully live up to the commitments the EC proudly adopted with the strategy. 

With this briefing, ILGA-Europe wants to highlight five key aspects of our evaluation of the first two years of implementation and set out recommendations to ensure strong implementation of the full strategy by 2024.

ILGA-Europe has worked with ERA – LGBTI Rights Association for the Western Balkans and Turkey, to produce our annual LGBTI Enlargement Review, assessing gaps in legislation and policy for the protection and advancement of the human rights of LGBTI people in the enlargement countries, and identifying priorities the EU should insist authorities in each country need to tackle in the coming year, as identified by LGBTI activists in the respective countries.

2022 was an historic year for the enlargement process, as the EU expanded its promise of a perspective for EU accession to include Ukraine, Moldova and Georgia, following the beginning of Russia’s war in Ukraine on 24 February 2022. All three countries are now included in the EU’s annual enlargement reporting process. As ILGA-Europe has member organisations in all of the newly added countries, this year’s LGBTI Enlargement Review covers the perspectives of LGBTI civil society from all ten countries: Albania, Bosnia & Herzegovina, Georgia, Kosovo, Moldova, Montenegro, North Macedonia, Serbia, Turkey and Ukraine.

This year’s LGBTI Enlargement Review also follows a new format. We wanted to particularly highlight the importance of implementation of already existing policy and legislation, as it has become commonplace for Enlargement countries to adopt a legal framework aligning with EU standards, but not actually implementing it. As a result, each country chapter is divided into the below headings:

• Main legislation/policy to be drafted/adopted to ensure non-discrimination and access to justice for LGBTI people (priorities for the coming year)
• Implementation of already-existing legislation/policy
• Legislation/policy in process
• Feedback on the European Commission’s 2022 Enlargement Report (where applicable)
• Recommendations to the EU

These headings are then complemented by a section linking readers to the respective country chapter of ILGA-Europe’s Annual Review 2023, in order to understand the reality on the ground and more nuanced context, which often varies significantly from legislative frameworks. The chapter on Turkey is structured in a different way, in order to present the current state of play prior to the elections in May, and will be updated to reflect the priorities that emerge after the elections.

In all of the enlargement countries, we can unfortunately identify a clear trend of rule of law being challenged, foreign influence being exerted to challenge advances on human rights, including the rights of LGBTI people, and an increase of hate speech translating into violence on the ground, as well as ongoing challenges to freedom of assembly and association.

In this context, LGBTI topics are being used to polarise society, often to distract from a broader undermining of democracy and the rule of law in these countries and other more important socio-economic and political issues.

It is thus important that the EU renews a clear prospect for EU enlargement, not only for Ukraine, Moldova and Georgia, but most importantly in the Western Balkans. The commencement of accession talks with Albania and North Macedonia is an encouraging step in this regard. It is important that the EU places LGBTI rights firmly into all its considerations, and that demands on advancing the protection of the human rights of LGBTI people are put on the same footing as important processes on fighting corruption and advancing the rule of law.

As the deadline for member states to decide whether they will join the European Commission’s lawsuit against Hungary for its introduction of anti-LGBTI legislation fast approaches, we look at the vital work ILGA-Europe has been doing behind the scenes to bring this case before the EU Court of Justice and to bring countries on board.

In June 2021, the Hungarian Parliament adopted a law that prohibits or limits access to content that portrays the so-called ‘divergence from self-identity corresponding to sex at birth, sex change or homosexuality’ for individuals under 18. On 15 July 2021, the European Commission began infringement proceedings against Hungary for its potential breach with this legislation of several rights in the Charter of Fundamental Rights of the European Union and fundamental EU values. Then, on 2 December 2021, the Commission sent a reasoned opinion stating that Hungary had failed to fulfil its obligations under various EU directives. As Hungary’s response to the reasoned opinion was unsatisfactory, the Commission referred the case to the CJEU.

Next Tuesday is the deadline for Member States to give their support to the case at the CJEU, and while more member states are signing on, some key member states have not done so, and we continue our efforts to bring them on board.

It may seem that the nine member states who have given their support to the case are doing so simply because the human rights of LGBTI people are at stake, but the journey to bring an infringement procedure to the courts and for any member state makes in supporting a case against another member state is complex and fraught with obstacles. That’s why the long-term work behind the scenes of organisations like ILGA-Europe, which represents the LGBTI movement in Europe, has been key to gaining support for this infringement.

As with any litigation at the EU Court of Justice, the infringement against Hungary is rooted in protecting the EU treaties and legislative framework. The risk that violations of human rights can be dismissed, due to the fact that they do not fall within EU competences, is high. This is why from the very beginning, we equipped EU member states with the detailed arguments on how this piece of legislation violates EU law and thus allowed them to strongly come out against the law in the European Council in June 2021, right after the adoption of the law.

It is another long journey from a political statement to actually intervening at the Court. Member states, who are always reluctant to go up against each other at the EU Court, need to be furnished with a clear way forward within the EU framework. For us that meant finding the right people within the government administrations, connecting to them, and showing them the ways in which Viktor Orbȧn’s anti-LGBTI law actually contravenes the laws of the European Union, which Hungary signed up to when it became a member state. It also meant us providing information about how member states can intervene at the Court and what needs to be in place to do so.

Putting the Pressure On

When the Hungarian law was first published, alongside one of our member LGBTI organisations in Hungary, Hatter, we invested heavily in working with member states, providing them with accurate information about the law and our assessment of it. Using this, we were able to keep pressure on member states to encourage the European Commission to go forward with an infringement procedure in the first place.

The Hungarian law clearly violates the human rights of LGBTI people, such as freedom of expression and in education, but the tricky issue with EU infringement is that you need to prove exactly how a law introduced by a member state actually goes against EU legislation. For example, in the area of education the EU has very little competence. So, we knew that infringement couldn’t be based on the education element of the Hungarian law. Together with Hatter, we analysed the law at a deep level to find exactly how it went against EU legislation.

When, encouraged by a letter from 17 member states, the Commission launched its infringement against Hungary, we hosted a meeting, bringing together key players from different member states, knowing it was vitally important that they were in touch with each other, so that they could support each other in making the arguments within their administrations to support the case. Alongside our analysis, we provided technical advice about how to intervene, what the deadlines would be, and so on.

Until the moment a member state has officially declared that they’re supporting a case, it’s a very fragile process and therefore we don’t want to talk about it on a public level. We simply work hard behind the scenes to give member states everything they need to prove to their own legal administrations that they can realistically go forward, and the information on how they can do so.

The story goes back a long way

Really, this work began long before the Hungarian anti-LGBTI law was introduced. Alongside our member organisations, we have been actively educating member states so they can see they have a proactive role to play on EU level in general, and more specifically  in front of the CJEU for a long time. Back in 2018, when the Coman case came before the CJEU, seeking the extension of free movement rights to same-sex couples in the EU, we worked with ACCEPT, our member LGBTI organisation in Romania, to help prepare the case. Our further role was to establish contacts with member states, to raise their awareness of the case and what it entailed, and to encourage them to intervene.

More recently we worked in the same way with Bulgarian member organisations in helping prepare the Baby Sara case, in which the CJEU ruled that a parent in one EU country is a parent in all EU countries, and in bringing member states on board to intervene.

This is slow-burning, long-term work. It’s about building the awareness of member states of the legal contraventions involved, but also their own mechanisms to be ready to act within the often very short deadlines of the court. We have seen the leading role that the Netherlands has been playing in supporting the Commission in the infringement case against Hungary, and in reaching out to other member states. This is building on the fact that the Netherlands, encouraged and educated by ILGA-Europe alongside our member organisations, intervened in both the Coman and Baby Sara cases.

What happens if the infringement is successful?

It doesn’t end there, and nor does our work simply end if the infringement against Hungary is successful. When it’s done, we will begin our work behind the scenes to actually get the judgement implemented, which won’t be easy or immediate. Romania has yet to implement the CJEU judgement in the Coman case, which was decided upon five years ago. Bulgaria recently said it would not implement last year’s CJEU judgement in the Baby Sara case.

However, if the infringement is successful and Hungary still refuses to drop its anti-LGBTI law, which it is likely to do, this doesn’t mean the success of the case will have no immediate impact. Winning these cases means that EU legislation will strengthen the work of national organisations, and if other EU governments come up with similar legislation, which is not unthinkable, other member states will have a mechanism and framework with which to act. 

At ILGA-Europe, we deal in the certainties of the law. We examine what a procedure is about and what it is not about, and we take our work from there. We’re in it for the long term behind the scenes, working towards our goal of freedom, safety and equality for all LGBTI people in Europe and Central Asia. If we pretended that a case that is really about EU competencies is a case about something else, such as human rights compliance, we would find ourselves in murky waters. And member states do not like murky waters. They like certainty, as do the European Commission and courts.

EU-wide parenthood recognition is key in ensuring equal protection for all children in the Union, say ILGA-Europe and NELFA.

Today, the European Commission published a proposal for a Council Regulation on recognition of parenthood, which sets out the full recognition of parenthood for cross-border movement within the EU, while ensuring every child’s fundamental rights are fully protected everywhere in the EU.

According to Europe’s LGBTI umbrella organisation, ILGA-Europe, and the Network of European LGBTIQ* Families (NELFA), this is a major step forward for bringing legal security for children in cross-border situations to have their family life protected and having both their parents recognised across the EU. Currently, many children, including children of LGBTI parents, ‘lose one parent’ when crossing a border because of parenthood not being recognised.

The Council Regulation builds on recent rulings of the Court of Justice of the European Union (CJEU), particularly the one delivered in the case of Baby Sara in Bulgaria (V.М.А. v Stolichna obshtina), requiring EU member states to recognise a parent-child relationship for the purposes of permitting a child to exercise without impediment, with each parent, the right to move and reside freely within the territory of all the member states, as guaranteed in Article 21(1) Treaty on the Functioning of the European Union (TFEU). 

The current lack of recognition of parental ties in cross-border situations means that a parent in one country is not always a parent in another country. Moving from one EU member state to another, for holidays or residence, children might ‘lose’ a parent and in very serious cases, such as the Baby Sara case, have ended up being stateless. This lack of parental recognition can have very serious negative consequences for children in rainbow families, such as depriving them of their succession, or their right to have any one of their parents act as their legal representative in matters such as medical treatments, childcare and education.

In line with international human rights law, the proposal puts the best interests of the child at the core, to ensure that children’s right to identity, nationality, non-discrimination and succession and maintenance rights are protected across the EU. This is a major step forward, which LGBTI rights organisations, including ILGA-Europe and NELFA, have consistently lobbied for until now. In doing so, the regulation addresses broader family issues, and thus does not interfere with the substantive law on family matters which falls within the competence of member states. 

According to Executive Director of ILGA-Europe, Evelyne Paradis: “Ensuring that children have their parents fully recognised when moving across the EU is an essential condition for their best interests and their fundamental rights. This proposed law is doing so, without impeding on the competence of member states to define a family and establish parenthood under their jurisprudence.

“Currently, rainbow and other families often face a burden to establish filiation through court systems and the legal costs that entail. Having legal certainty on recognition will reduce serious concerns and problems that rainbow families face when travelling or moving in the EU.”

President of NELFA, Eleni Maravelia, says: “Rainbow Families in Europe are very pleased with the legislative proposal by the European Commission, because it would strengthen the rights of children in cross-border situations, as guaranteed by the Treaties. In particular, the new law can help to avoid longer periods of statelessness and other serious legal limbo effects for minors – including the loss of essential familial ties, social benefits and parental obligations. Unfortunately, many children still experience such difficulties in the European Union in various shapes and shades. It’s time for a change. Every child needs full recognition and protection, regardless of their living environment.”

ILGA-Europe and NELFA will now work with MEPs and EU governments to ensure that the proposal is supported through the European Parliament and Council, and that the aim of the proposal is maintained in the final legislation.

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ILGA-Europe also welcome today’s publication of a proposal to set binding minimum standards for Equality Bodies by the European Commission. The proposal would strengthen the independence, powers and resources of equality bodies in EU Member States. However, we regret that the European Commission is not proactively seeking ways to include the protection of trans and intersex people in the proposal. Working with Equinet and their membership, ILGA-Europe has seen a lot of interest in widening protection to fully include trans, intersex and non-binary people, and many countries across Europe have started to include gender identity and sex characteristics in their list of protected grounds.

Says Evelyne Paradis: “While we recognise the limitations of the EU treaty, the EC should, in line with EU case law and international human rights standards, encourage member states to not exclude large parts of the LGBTI community from their anti-discrimination protection.”

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For further comment, contact: Ana Muñoz Padrós, ILGA-Europe: ana@ilga-europe.org

An Urgent call on the European Commission and the Council of europe to refrain from approving recovery funds to the governments of Poland and Hungary, and to provide direct support to local authorities, civil society and human rights defenders providing for refugees of the war.

We are deeply concerned that the European Commission and the Council consider unblocking the EU Recovery and Resilience Facility funds to the governments of Poland and Hungary, and that the Commission talks about further delaying the activation of the rule of law conditionality regulation in their regard, due to the current political and humanitarian crisis following Russia’s military invasion of Ukraine on 24 February.

Revising the critical decision to suspend approval of the EU recovery funding for Poland and Hungary now, would send the wrong political signal to the governments of Poland and Hungary who have made no progress in course-correction of laws, policies and practices undermining checks and balances and the overall rule of law architecture. Such a decision also risks setting a dangerous precedent and undermines the EU rule of law conditionality mechanism, designed  to protect the EU budget in the long run.

As organisations working across Europe to defend fundamental rights and the rule of law, we call on the European Commission and the Council to refrain from approving recovery funds to the governments of Poland and Hungary in haste without genuine and solid guarantees that the rule of law concerns, notably regarding the lack of independence of the judiciary and anti-corruption democratic safeguards, will be resolved.

The war in Ukraine should not be used as a pretext to weaken the rule of law mechanism and let any Member State get away with serious rule of law violations. If anything, this war shows the very real dangers that come with a country dismantling the rule of law and democratic oversight. This is not the time to set aside concerns about the rule of law and respect of fundamental rights in EU Member States. Unblocking funds whereas the concerns in the countries remain as serious as ever, would be detrimental.

The EU has a legal obligation to mitigate the risks of EU funding being misused, and hold firm on the need for further negotiations before releasing the recovery funds, while at the same time triggering without further delay, the conditionality mechanism. Article 7.1 TEU procedures must continue as Article 2 TEU continues to be undermined.

Neither Poland, nor Hungary, have made meaningful progress to restore the checks and balances necessary to uphold the rule of law and reinstate an independent judiciary. If the EU allows the Polish government to ignore the CJEU ruling concerning the Disciplinary Chamber of the Supreme Court, the risk that independent civil society in Poland, which has been the main respondent to the Ukrainian refugee crisis, will be further criminalised and forced to halt their activities is very real.

Contrary to demonstrating positive reforms the Polish Parliament tried to amend a law to ensure impunity for authorities during the Ukraine crisis. In addition, a legislative proposal, attempting to ensure that government officials could not be held accountable for their disposition of emergency funds, was narrowly defeated, by only one vote in the Polish Parliament.

Directly support local authorities, civil society and human rights defenders providing for refugees of the war

The war in Ukraine has already forced over three million people to leave Ukraine to seek safety. The support of millions of people poses a major challenge involving the provision of shelter, food, clothing, childcare, health care, psychological support, legal aid, and other essential services.

Civil society, local authorities, citizens and human rights defenders have responded rapidly, providing the vast majority of services to those fleeing. By contrast assistance from central government in Hungary and Poland has been limited. As further arrivals are anticipated and longer term support is required, direct financial assistance to civil society is urgent, to avoid a fast-developing humanitarian disaster.

The government in Poland is not just falling short on its humanitarian duty and the local relief effort. It is under suspicion of gross mismanagement of both EU and Polish funds designated to support vulnerable groups.

There is undoubtedly a serious risk that making emergency means available to the government will affect the management of EU funds contrary to their purpose and in violation of generally accepted standards of responsible management. There is also a serious risk that if allowed to pass through the government, such emergency means may be abused for political ends, and inefficiently spent for its purpose, 41 Polish civil society organisations warn. We share their concerns.

This is not the moment to set aside rule of law conditionalities. In Hungary, the government’s continued failure to execute the CJEU’s judgment establishing that the so-called ‘Stop Soros law’, criminalising support to asylum seekers and refugees, violates EU law and should be repealed.

The law exposes civil society organisations and human rights defenders on the frontline providing assistance to refugees fleeing Ukraine to serious risks, including prison sentences. The EU cannot allow the Polish government to continue to reject the rulings of the CJEU concerning the Disciplinary Chamber and risk further attacks. Scrutiny is required.

We call on you as Presidents of the European Commission and the Council to hold strong on the fight for freedom, democracy and respect for fundamental rights and rule of law that Russia’s invasion in Urkaine has put back at the centre of our lives. Emergency support can be made available through other ways and our organisations are ready to meet and discuss how we can support the European Commission in ensuring that emergency funds reach those who urgently require assistance.

Right now, as the war on Ukraine escalates, democracy, human rights and equality matter more than ever in Europe. In our submission to the European Commission’s annual Rule of Law report, we’ve identified key trends in the systematic attacks on the rights of LGBTI people across EU member states.

With the ongoing Russian invasion of Ukraine, which is also a fundamental attack on democracy and freedom, we need to be working harder than ever to protect human rights and equality in Europe. The EU’s Rule of Law mechanism is one way in which this can be done. It can be used to ensure EU institutions react strongly to human rights violations across its member states. In the EU, rule of law means that all members of a society, including governments and members of parliaments, are equally subject to the law, under the control of independent and impartial courts.

The rule of law is important because it has a direct impact on the life of every citizen of the EU, and it ensures that laws protecting fundamental rights and democracy are respected by everyone, and can be enjoyed by everyone. It is a fundamental value upon which the EU is based.

Over the past few years it has become increasingly clear that many government-led violations of LGBTI rights in EU member states, go hand-in-hand with an undermining of the rule of law. In ILGA-Europe’s submission to this year’s EU Rule of Law Report, we’ve reported on the systematic attacks on the fundamental rights of LGBTI people across the EU, which have been enabled by the weakening of rule of law and democratic structures in several member states.

ILGA-Europe, with the input of various national-level LGBTI organisations, has submitted written input to inform the 2022 annual report, in order to ensure the violations of LGBTI rights linked to rule of law deterioration are recognised by EU institutions, and are addressed in their follow-up with member states. Here are the trends which we have highlighted to the EC:

Anti-LGBTI bias

In countries where the freedom of the judiciary is weakened, we have been witnessing political interference or bias in court cases related to LGBTI rights. For example, in Poland, the Ministry of Justice uses its powers to repeatedly appeal verdicts that were in favour of LGBTI defendants.

Also, in countries where media freedom is under attack, we are seeing more prevalence of anti-LGBTI bias, smear campaigns and even censorship of LGBTI content. Some LGBTI organisations are facing funding restrictions.

Arbitrary use of COVID-19 regulations

In certain countries, COVID-19 regulations have been applied in a discriminatory manner or have been used arbitrarily to restrict the freedom of assembly of LGBTI people. States of emergency have allowed governments to fast-track legislation unrelated to the pandemic, but which directly attack the rights of LGBTI people.

The most well-known example of this is the anti-paedophilia legislation adopted by Hungary in June 2021, which includes provisions which ban the “portrayal and the promotion of gender identity different from sex at birth, the change of sex and homosexuality” for persons under 18, and applies these to a number of regulations related to child protection, family, education, media and advertisement.

The European Commission started infringement proceedings against Hungary due to this law in July 2021. A similar law has since been tabled in Slovakia, is being drafted in Romania, and has been suggested for drafting in Poland and Croatia.

Judgments are not implemented

Judgments of the Court of Justice of the EU (CJEU) or the European Court of Human Rights (ECtHR) continued to not be implemented last year. The most notable of these is the Coman case from 2018, on freedom of movement for same-sex spouses. Due to its non-implementation in Romania, the country where the case started, it has been taken to the ECtHR. An official complaint was also submitted to the European Commission, with a similar case.

Rise in hate crime and hate speech against LGBTI people

Across the EU, hate speech by politicians was a serious issue during 2021, creating an unsafe environment for LGBTI civil society and often being related to a rise in hate crime and hate speech against LGBTI people more broadly. In some EU countries, LGBTI activists are receiving death threats online. In 2021 alone, offices of LGBTI organisations were attacked in Belgium, Bulgaria, Ireland, the Netherlands, Romania, and Spain. Staff and volunteers of LGBTI organisations were also attacked in Bulgaria, Croatia, Finland, Lithuania, Romania and Slovenia, many of which happened after anti-LGBTI smear campaigns in the media. Stickers with the design of the Polish “LGBT-free Zone” sticker appeared in various cities in Belgium, Bulgaria and Latvia. These incidents have led to an effective restriction of LGBTI people’s right to freedom of association, freedom of assembly and freedom of expression.

Hate crimes are not investigated

Hate crimes against LGBTI people often are still not sufficiently investigated. A number of EU countries still do not have hate crime legislation with sexual orientation, gender identity or sex characteristics as aggravating grounds. In some countries which do have such legal protection, it is often not implemented properly by police, prosecutors or even Ombudspersons.

So, what can be done?

The EU has a number of tools at its disposal to ensure the respect of the rule of law in all EU countries. The European Commission (EC), the executive arm of the EU, is responsible for guaranteeing the respect of rule of law.

The EU can take specific steps against violations of LGBTI rights in member states, that is if they go against EU legislation and/or if they are rule of law violations. Instruments the EC can use in such cases include so-called infringement procedures, as we see against Hungary and Poland at the moment, triggering Article 7 of the Treaty of the EU, to suspend certain rights from a member state, as well as cuts in EU funding based on rule of law violations

The EU annual rule of law report highlights breaches of EU and national law, including erosion of democratic standards. Based on this report, the EU institutions talk with EU countries, as well as national parliaments, civil society and other stakeholders in order to address concerns and avoid deterioration.

We hope that our remarks are heard and that the EC will integrate them in its annual Rule of Law Report. LGBTI rights are human rights and must be protected the same way rule of law should be respected in every EU country.

Just over a year ago, the European Commission adopted the first ever EU LGBTIQ Equality Strategy, committing to be at the forefront of efforts to better protect LGBTIQ people’s rights. But how far has the Commission gone in its implementation so far? We looked closely, and here are our five conclusions.

The adoption of the EU LGBTIQ Equality Strategy marked a strong shift from the European Commission, the executive arm of the EU, towards playing its full role to defend and protect LGBTI rights in times of real backlash. The strategy is key to the Commission’s day-to-day work to tackle discrimination. This is even more relevant at a time when the COVID-19 pandemic continues to exacerbate inequalities, hitting the most vulnerable in our communities.

In discussion with LGBTI organisations and activists across the region, as well as European networks, we’ve evaluated the first year of the EU LGBTIQ Equality Strategy. Here are the five key points from our assessment.

1. The strategy is a clear commitment to LGBTI rights

The strategy gives an important political sign of support of LGBTI rights. It also supports the inclusion of LGBTI rights in the European Commission’s work across all Directorates-General, as well as in other strategies, like the Children’s Rights Strategy. The strategy was key in putting important initiatives, including upcoming legislation on the table, and empowered the EC to be more outspoken in the protection of LGBTI rights.

2. All policy areas of the Commission must be proactive

The European Commission is divided in Directorates-General (DGs in EU jargon). Each DG takes care of one policy area. DG Justice, whose job is to ensure that the whole European Union is an area of freedom, security and justice, has been at the top of the class when it comes to setting in motion some of the activities in the strategy. Important work has begun on intersex rights, parenthood recognition and the extension of EU crimes — the list of areas of particularly serious crime with a cross-border dimension — to include hate crime and hate speech. However, a real push is needed to ensure other DGs follow the DG Justice example and pick up activities under the strategy to the same extent.

3. A timeline and naming those responsible for each activity is needed

A timeline will ensure the full implementation of all activities enlisted in the strategy. This good practice has been fruitful in the implementation of the Roma strategy and the Gender Action Plan. Also, the service unit within each DG responsible for each activity should be named.

4. European LGBTI NGO’s should be involved

The High-Level Group on Non-Discrimination, Equality and Diversity assists the European Commission in implementing existing EU law and policies. It also cooperates with EU countries through the exchange of experiences. An LGBTI subgroup to the High-Level Groups was created to organise good practice exchanges in the areas named in the strategy, for example, legal gender recognition based on self-determination, banning conversion therapy, and non-necessary interventions on intersex children, and more. These are areas where the EU cannot legislate on, as they are outside their competence, but where discrimination across the region prevails.

However, there are still conversations if and how to include non-governmental organisations (NGOs) in the LGBTI subgroup. To ensure good cooperation, European LGBTI networks should be involved in an ongoing and structured manner, while the list of participants and the agendas of the subgroup should be made available to the public.

5. Protecting sexual orientation only is not enough

At the moment, EU law only protects people against discrimination based on sexual orientation. This reflects the time when EU Treaties were adopted. However, international human rights laws have evolved ever since and the EU LGBTIQ Equality Strategy sets out a clear political ambition to defend and protect all LGBTI people, including trans, intersex and non-binary individuals.

Therefore, in implementing the strategy, the European Commission needs to push its own limitations and extend its legal protection beyond sexual orientation grounds, so as to be fully inclusive of gender identity, gender expression and sex characteristics.

The EU LGBTIQ Strategy marked the beginning of a new approach in the European Commission to LGBTI rights and equality. The Commission can play a significant role in making sure we continue to move closer to achieving equality for LGBTI people, especially in more challenging times. With the strategy, it has equipped itself to do just that.

The European Commission has put forward a legal initiative to extend the list of EU crimes to include hate speech, both online and offline, and hate crime, with clear understanding that LGBTI people must be protected.

Today, with its initiative to tackle hate crime and hate speech across the European Union, the EU Commission has recognised ever-growing violence and hate speech against LGBTI people by including sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC) as protected grounds in the second step of the initiative.  

By naming SOGIESC explicitly in the hate crime and hate speech initiative, the Commission has drawn attention to the prevalence of bias motivated violence and incitement against LGBTI people due to historical and structural discrimination and oppression, and sends a signal to the criminal justice system, potential perpetrators and victims of hate crime or hate speech that hate crime and hate speech against LGBTI people should be taken seriously. 

On 16 September this year, the European Commission President, Ursula von der Leyen announced, in her State of the Union Address at the European Parliament a new initiative on extending the list of EU crimes to all forms of hate crime and hate speech – whether because of race, religion, gender or sexuality. It was further mentioned in the Commission Work Programme 2021 and in February 2021, the Commission published a roadmap on the initiative, scheduled for the fourth quarter of 2021.

As it is noted in a letter sent by the ILGA-Europe, OII Europe and TGEU to President von der Leyen, only by the explicit inclusion can existing protection gaps be closed across the EU and LGBTI phobic hate crime be tackled effectively. A number of reports show that in places where discrimination against LGBTI people prevails, the provision of a general legal protection often leads to disadvantageous application of the law against this group.

Welcoming the explicit inclusion of SOGIESC in the initiative, Akram Kubanychbekov, Senior Advocacy Officer with ILGA-Europe said: “Considering the prevalence of hate speech and hate crime against LGBTI people in the EU, it is critical that the EU finally recognises bias-motivated violence and speech against LGBTI people.

“This will establish a legislative framework to work towards real change in society, where right of LGBTI people are fully respected on equal footing with others. It will also allow to develop policies at the EU and national levels on preventing bias motivated violence, advance support services for victims of such crimes and training staff of the criminal justice system among others.”

Background information:

Article 83(1) TFEU provides for an exhaustive list of areas of particularly serious crime with a cross-border dimension (known as ‘list of EU crimes’) for which the European Parliament and the Council may establish minimum rules concerning the definition of criminal offences and sanctions. Under Article 83(1), third subparagraph, based on ‘developments in crime’, the Council may adopt unanimously a decision (subject to the consent of the Parliament) extending this list by adding other areas of crime. The Commission presented this initiative to trigger such Council decision, through a Communication to the European Parliament and the Council.

Adoption of the decision of the Council to identify hate speech and hate crime as “other areas of crime” will serve as a legal basis for the next step: adoption of a directive or regulation setting standards for the prosecution of such crimes, recognition of the protected characteristics, and the protection of victims of the bias motivated violence or incitement to discrimination across the EU.  Second step will go through the ordinary legislative procedure.  

This initiative will complement the work on a legislative proposal on preventing and combatting gender-based violence against women and domestic violence to be presented at the beginning of 2022 and the proposal for a Digital Services Act.

ILGA-Europe have provided input to numerous open and targeted consultations on the topic this year and closely supported the Commission’s work on this initiative.

The full text of the Communication to the European Parliament and the Council can be read here.

As the European Commission takes the second step in its infringement procedure against Hungary, Europe’s leading LGBTI organisation welcomes its clarified commitment to the equal human rights of the people of Hungary and all other EU member states.

Today, 2 December 2021, the European Commission (EC) began the second phase of its infringement procedure against EU member state, Hungary, due to discriminatory amendments adopted on 23 June in the country, which ban the “portrayal and the promotion of gender identity different from sex at birth, the change of sex and homosexuality”.

On 15 July 2021, the European Commission formally notified Hungary of the beginning of infringement proceedings regarding the amendments. The Hungarian Prime Minister, Viktor Orbán responded by accusing the Commission of “legalised hooliganism” and announcing plans to call a referendum on the amendments, falsely insisting that the infringement procedures specifically seek to interfere in the Hungarian education system. Since then a number of Hungarian government officials have similarly sought to mislead the Hungarian and European public in regard to the content of the infringement procedures.

Today the Commission said that it finds Hungary’s official response to its notification insufficient, and it has therefore started the second phase of the infringement process by sending Hungary a letter known as a “reasoned opinion”, outlining the parts of the new Hungarian law that are breaching EU law, and demanding that these are changed. The EC also identified that even more EU laws are being breached by the amendment, and contrary to claims from the Hungarian government, it did not mention any educational directives in its reasoned opinion.

Instead it clarified that it is specifically concerned with breaches to fundamental EU law when it comes to the freedom to provide services and the free movement of goods. Hungary, the Commission says, has not shown how restrictions in its legislative amendments are duly justified, non-discriminatory, and proportionate.

In addition, the EU clarified breaches of the Audiovisual Media Services Directive and the e-commerce Directive, citing restrictions in the amendments regarding audiovisual media content, including discrimination based on sexual orientation.

The Commission also deems that the Hungarian amendments violate human dignity, freedom of expression and information, the right to respect of private life as well as the right to non-discrimination as enshrined in Articles 1, 7, 11 and 21 of the EU Charter of Fundamental Rights, and due to all of this, the amendments violate Article 2 of the Treaties of the European Union.

According to Katrin Hugendubel, Advocacy Director with Europe’s leading LGBTI organisation, ILGA-Europe: “The Hungarian government keeps twisting the facts and stating that it is protecting children and acting on the will of its people with these amendments. Both statements are patently false. The amendments are an attack on children’s rights as well as the rights of LGBTI people. Contrary to the amendments reflecting the will of the people, support for LGBTI equality is growing in Hungary.

“With these amendments and his referendum, Orbán is running a campaign in advance of elections next year, hoping to distract from the massive problems his government is responsible for by scapegoating the LGBTI community. The EC is right to hold the Hungarian government accountable to the Treaties, and should not hesitate to see this through, including by bringing Hungary in front of the Court of Justice of the European Union (CJEU).”

Hungary now has two months to remedy the breaches identified by the Commission. If they do not amend the law to remove the breaching anti-LGBTI provisions, then the Commission will refer the case to the CJEU.

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For further comment, contact: Ana Muñoz Padrós, ILGA-Europe: ana@ilga-europe.org, +32 493 35 60 55

ILGA-Europe,  OII Europe, and TGEU urge the European Commission to acknowledge the existing prevalence of the violence and incitement to discrimination against LGBTI people, through naming SOGIGESC explicitly as protected grounds in the upcoming EU-level hate crime and hate speech legal initiative.

Dear Commission President von der Leyen,

As organisations working for an equal and inclusive Europe for lesbian, gay, bisexual, trans and intersex people, we would like to raise our concerns regarding the upcoming initiative of the European Commission on extending the list of EU crimes to all forms of hate crime and hate speech.

In recent years, hate speech and hate crime targeting persons and organisations based on sexual orientation, gender identity, gender expression, and sex characteristics have increased globally, and also across the European Union.

Given this increasingly alarming context, we would like to thank you for your strong message of support for our community and commitment to advancing equality for LGBTI people, from your State of the Union speech last September to the adoption of the first ever EU LGBTIQ Equality Strategy in November. The clear commitments to provide protection from hate crime and hate speech on extended grounds, including hate against LGBTI people are important signals that the European Commission stands firm on the protection of rights LGBTI people. 

As the European Commission is at the finalisation stage of the initiative on extending the list of EU crimes to all forms of hate crime and hate speech, ILGA-Europe, TGEU and OII Europe are  urging you and the College of Commissioners to stay true to the commitment made by you and Commissioner Dalli on several occasions to ensure the protection of LGBTI people against hate crimes, by including the grounds of sexual orientation, gender identity, gender expression and sex characteristics explicitly in the proposed extension. Only by the explicit inclusion can existing protection gaps be closed across the EU and LGBTI phobic hate crime be tackled effectively. In the situation, where bias and discrimination against the group is prevalent in general society, provision of general legal protection often leads to disadvantageous application of the law against these group.

Over the last years, we have been seeing targeted attacks against trans people and their rights, which mis-characterise the fight for equality of trans people as promotion of so-called “gender ideology”. In a targeted campaign of ultra-conservative forces against women’s rights as well as LGBTI rights, trans people are being targeted and made even more vulnerable, as the unleashing of transphobic hate speech often translates in violence and hate crimes against them. In addition, intersex people and intersex organisations have become increasingly a target of intersexphobic hate speech. These attacks are carried out by the same ultra-conservative actors and focus on the person having a variation of sex characteristics or the organisation working for intersex people’s rights.

The 2019 FRA LGBTI survey, clearly documented the overproportionate rise in hate crimes and hate speech against trans and intersex people. 17% of trans and 22% of intersex respondents experienced physical or sexual attacks, while 48% of trans and 42% of intersex people experienced harassment, registering the highest rates among the LGBTI population. The impact of hate crime and hate speech also proved to be disproportionately harmful for trans and intersex victims: 58% of trans and 54% of intersex respondents reported suffering from psychological problems and 48% of intersex and 39% of trans respondents felt limited in their freedom of movement, as a result of the attack.  TGEUs global Trans Murder Monitoring showed that the last year has been the deadliest since the beginning of recordings with 357 reported cases; moreover 96% of murdered trans people globally were trans women and trans feminine persons.

In the light of the extreme rise in transphobia and the well-documented impact it is having on trans and intersex people, it would be a very negative signal if the Commission was to propose an extension of protection against hate crimes which does not explicit include the grounds of gender identity and sex characteristics. It would be a serious disappointment to the communities that are looking to the Commission to finally get protection of their rights, on equal footing with everyone else, following the strong commitments to the protection on trans and intersex rights in the EU LGBTIQ Strategy. It would also send a very dangerous message to all those actors who are fuelling hatred, that trans and intersex people remain a legitimate target of their hateful speech, as trans and intersex people would continue to be unprotected.

The European Commission has shown in the past that it is possible to ensure legal protection of trans and intersex people, by explicitly including gender identity and gender expression in EU legislation. The Victims’ Rights Directive has set the standard, by providing protection to LGBTI victims of crimes beyond sexual orientation by including gender identity and gender expression as protected grounds. FRA has also interpreted the Directive as inclusive of intersex people, which is in line with the core objective of this legal instrument, aimed at protecting all victims of crime, in respect of the non-discrimination principle. The new initiative on the extension of Eurocrimes cannot fall behind the standards previously set, and therefore it needs to explicitly include gender identity, gender expression and sex characteristics. Without recognition of bias-motivated violence and hate speech against LGBTI people, victims of such crimes are left out of the protection.   

It is crucial to provide an effective legislative protection for LGBTI people by acknowledging the existing prevalence of the violence and incitement to discrimination against them through naming sexual orientation, gender identity, gender expression and sex characteristics explicitly in the EU level hate crime and hate speech legal initiative.  

We are calling up on you to take effective and meaningful action to ensure that safety and dignity of LGBTI people are fully protected in the upcoming hate crime and hate speech initiative of the Commission, adding that we at ILGA-Europe, TGEU and OII Europe remain fully and firmly committed to supporting the European Commission in its work, wherever we can.

The first ever EU LGBTIQ Equality Strategy, adopted in November 2020, is a major step in the EU’s overall commitment and detailed efforts to ensure the fundamental rights of LGBTIQ people and fight discrimination. Many people welcomed the strategy, including ILGA-Europe, who noted in their press release that it marks a ‘qualitative shift from the European Commission towards playing its full role to defend and protect LGBTI rights in times of real backlash’.

It is an important part of the Union of Equality, set out by European Commission President Ursula von der Leyen. The strategies and structures put in place in the 2019-2024 European Commission to mainstream equality and tackle discrimination and inequality are key, not least in a time when the Covid-19 pandemic has further shed light on poverty and exclusion across the EU, and inequalities have been exacerbated.

With this briefing, ILGA-Europe wants to set out five key points that have become clear in the first year of implementation of the EU LGBTIQ Equality Strategy. We have collected feedback from LGBTI organisations and activists from across Europe and organised a dedicated call to discuss our respective assessment of the first year of implementation with key European LGBTI networks, such as TGEU, OII Europe, IGLYO, and EL*C. In addition, the assessment was discussed in a meeting with DG Justice in September 2021 and the key points where shared following the meeting.

According to ILGA-Europe, the infringement procedures announced by the European Commission today show that the EU has come to a tipping point; after years of governments testing how far they can go, the European Commission has taken a clear step to hold Hungary and Poland accountable on the rule of law and fundamental rights.

Today, July 15, the European Commission announced that it will take landmark infringement procedures against both Hungary and Poland. The procedures against Hungary concern the censorship of a children’s book portraying LGBTI characters, and the legislation that entered into force last week, which prohibits the inclusion of LGBTI people in material in schools or in media for under-18s. The procedures against Poland concern a refusal to clarify whether LGBTI people are discriminated against in the labour market in the country’s so-called LGBT Free Zones .

According to ILGA-Europe, the leading LGBTI rights organisation in Europe, the infringements are  a clear message to all member states that they are bound by their membership to respect the core principles of the European Union.

The first infringement against Hungary is in respect of a book of reimagined fairytales with diverse characters entitled, Wonderland is for Everyone, which was published in September 2020. The book became an immediate target of homophobic attacks by politicians in the ruling Fidesz party, including the Hungarian Prime Minister Viktor Orbán, calling it “homosexual propaganda”. In January, the Hungarian government ordered the publisher of Wonderland is for Everyone to print disclaimers identifying books containing “behaviour inconsistent with traditional gender roles”, thus restricting the right to freedom of expression and the right to non-discrimination as enshrined in Articles 11 and 21 of the EU Charter of Fundamental Rights and breaches the Unfair Commercial Practices Directive. 

The second Hungarian infringement is in relation to legislative amendments voted in on June 15, banning the “portrayal and the promotion of gender identity different from sex at birth, the change of sex and homosexuality” for persons under 18 and for public servcie advertisement even without any age limit. The language surrounding this ban has been introduced into the following Hungarian legislation: the Child Protection Act, the Family Protection Act, the Act on Business Advertising Activity, the Media Act, and the Public Education Act, clearly breaching  a number of EU laws and violate international human rights norms, in particular restricting cross-border information society services, and the Treaty principles of the freedom to provide services (Article 56 TFEU) and the free movement of goods (Article 34 TFEU), by failing to demonstrate that the restrictions are necessary, non-discriminatory, and proportionate and pursue a legitimate interest.

On the day the Hungarian legislation came into force, the European Parliament voted in favour of urgent legal action against its member state, saying that the law was “another intentional and premeditated example of the gradual dismantling of fundamental rights” in the country.

The infringement against Poland has been launched because of the non-cooperation of Polish authorities in clarifying the question in how far the so-called Family Charters and LGBT Free Zones, which over 100 Polish local governments have adopted since 2019, might lead to discriminationon the grounds of sexual orientation and the Charter of Fundamental Rights, specifically ensuring non-discrimination in access to and in the labour market in line with EU anti-discrimination law, and also regarding management of the Structural and Investment Funds. 

According to ILGA-Europe’s Advocacy Director, Katrin Hugendubel: “By opening infringement procedures, the EC clearly states that the Polish and Hungarian governments are violating fundamental rights and, as they are unwilling to engage in sincere cooperation, and is now stepping up and opening a clear procedure to ensure the full respect of the Treaties and EU legislation. This could ultimately result in the EC bringing both countries in front of the Court of Justice of the European Union (CJEU).”

Over the past two years, ILGA-Europe has been advocating at the highest EU levels for sanctions against Poland and Hungary, as the governments of both countries have increasingly stoked anti-LGBTI hatred, thereby sewing political and societal division. ILGA-Europe stated concerns that this instrumentalisation of a vulnerable minority, which was first employed by Vladimir Putin in 2013 with the Russian anti-propaganda law, was providing an example to the governments of other EU member states leaning in this direction, who saw Poland and Hungary acting with impunity in violation of EU directives and core values.

Executive Director of ILGA-Europe, Evelyne Paradis said: “For years now, we have been observing some EU member states consistently testing EU democracy and the protection of the rule of law and fundamental rights. The infringement procedures announced today send a clear signal that enough is enough. EU member states can no longer act against human rights with impunity, nor can governments go on instrumentalising minorities for political gains. They have to and will be held accountable.” 

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Background to infringement on Poland:

In September 2020, ILGA-Europe together with Polish LGBT rights organisations KPH (Campaign Against Homophobia) and Fundacja Równo?ci (The Equality Foundation) submitted a legal complaint to the European Commission setting out how these declarations introduce discrimination against LGBTI people and thus breach the European Council Directive (2000/78/EC), establishing a general framework for equal treatment in employment and occupation, as well as the Charter of Fundamental Rights Article 15 on Freedom to choose an occupation and right to engage in work, and Article 21 on non-discrimination. Based on the complaint, the EC has requested information from the Polish authorities in February this year, which to this day has not been provided, thereby constituting failure to comply with the principle of sincere cooperation under Article 4(3) TEU.

Further information:

• Read more about Hungary in our Rainbow Map and Annual Review. 
• Read more about Poland in our Rainbow Map and Annual Review. 

For further comment, contact Ana Muñoz, ILGA-Europe: ana@ilga-europe.org and +32 493 35 60 55

In the light of increasing attacks on LGBTI rights, stagnation of legal progress and clear lack of implementation of the rights of LGBTI people in Europe, ILGA-Europe have been calling for action from EU member states and all EU institutions for some time now. This week’s developments seem to suggest that the European Commission and a large number of member states finally heard that call. Time to keep up the action and follow through on its values and responsibilities as guardians of EU law, keeping the important commitments made this week.

Ahead of the EU’s General Affairs Council, where Article 7 procedures against Hungary and Poland were to be discussed on 22 June, ILGA-Europe has been informing EU ministers about systematic breaches of EU law committed by Hungary and Poland, which impact on LGBTI rights and the lives of LGBTI people.

Specifically, as concerns Hungary, over the last year we have been seeing increasing legislative attacks against LGBTI rights, such as the banning of legal gender recognition in May 2020, the introduction of transphobic provisions to the Hungarian Constitution in December 2020, the restriction of adoption by non-married persons (same-sex couples cannot marry in Hungary) also in December 2020, and the abolishment of the Equal Treatment Authority in January 2021. We had already seen the banning of depiction of LGBTI people in advertisements (fining of Coca-Cola in 2019), books (Labrisz book ordered to have under 18 disclaimer in January 2021), and the media (fining of RTL in March 2021).

However, Hungary went a step further on 15 June 2021, by adopting amendments banning the “portrayal and the promotion of gender identity different from sex at birth, the change of sex and homosexuality” for persons under 18, and applying these to the Child Protection Act, the Act on Business Advertising Activity, the Media Act, the Family Protection Act and the Public Education Act (see more in our press release).

With this vote, Hungary has adopted a Russian style anti-propaganda law that will effectively ban the representation or communication about diverse sexual orientations, gender identities and sex characteristics in the Hungarian public sphere, as well as specific places such as in schools. This clear violation of EU principles set out in the Charter of Fundamental Rights and the Treaties, as well as at least two EU directives, was the straw that broke the camel’s back. At the General Affairs Council on 22 June, 17 Member States signed a statement condemning the anti-LGBT amendments in the new Hungarian law and calling for the European Commission to act. A number of Ministers also gave statements in person at the beginning of the Council, reaffirming that these amendments run counter to EU law and the principles of non-discrimination.

On 23 June, the President of the European Commission gave a press statement calling the amendments a “shame” and saying that they go against the fundamental values of “human dignity, equality and respect for human rights”. President Ursula von der Leyen promised to “use all the powers of the Commission to ensure that the rights of all EU citizens are guaranteed.” Later in the day European Commissioners for Justice and the Internal Market sent a letter to the Hungarian Justice Minister, raising concerns over the potential breach of the EU’s Charter of Fundamental Rights, TFEU, Audio-Visual Media Services Directive and the e-Commerce Directive. The Hungarian government has been given the date of 30 June to respond to the Commissioners’ concerns. If the Hungarian law enters into force, the European Commission “will not hesitate to take action in line with its powers under the Treaty” the letter closes.

Yesterday, on the 24 June, 16 EU leaders reiterated their support for LGBTI people and their equal rights in an open letter to the President of the European Commission, the EU Council, and the EU Council Presidency. On the same day, the Hungarian President signed the law (it will come into force within two weeks from now).

After a week of strong political statements, public outcry and the waving of rainbow flags, the European Commission has clearly signalled its willingness to hold Hungary accountable for its breach of EU law in flagrantly discriminating against LGBTI people and finally follow the call for action, including infringement procedures. Building on the European Commission’s LGBTIQ Equality Strategy 2020-2025 and renewed public commitments, including the EP resolution declaring the EU an ‘LGBTIQ freedom zone’, LGBTI people across the EU are still waiting for the Commission to take a clear stand towards Member States and use all tools available: negotiations, infringement procedures, the rule of law reports, ongoing Article 7 procedures, as well as funding instruments. ILGA-Europe will now work to ensure that this week will be a game changer and that real action will follow regarding Hungary, but also the so-called Polish ‘LGBT free zones’, and the non-implementation of the Coman judgement in Romania. The European Commission, through its rule of law mechanism, conditionality mechanism and all other tools at its disposal, needs to take all these threats and rollbacks on rights seriously in all Member States. We cannot allow these situations to further deteriorate. All LGBTI people in the EU should be protected and guaranteed equal rights.

And it is not only up to the EC to act. Member states also need to follow through, calling out LGBTI rights violations across Europe, while restarting and seeing through the necessary legislative steps in their own countries.

The large wave of solidarity and political commitments this week is as welcome as it is overdue, but words need to translate into action so that LGBTI people across the entire European Union can be both respected and protected as equal citizens. ILGA-Europe pledges to keep on working to support and inform the European institutions so that this can become a reality and the tide of backward sliding on LGBTI rights, dignity and equality in some EU countries can turn back in the right direction.

As Hungary adopts Russian-style anti-LGBTI legislation, it is time for the EU to use all instruments available to hold its member state accountable for the respect of fundamental rights, including LGBTI rights, and for clear breaches of EU law, says ILGA-Europe.

Today, 15 June, the Hungarian Parliament adopted a number of amendments which directly discriminate against LGBTI people. The amendments were tabled by the ruling FIDESZ party and introduce a ban on the “portrayal and the promotion of gender identity different from sex at birth, the change of sex and homosexuality” for persons under 18.

The amendments clearly breach a number of EU laws and violate international human rights norms, in particular the case law of the European Court of Human Rights, UN Human Rights Committee and the EU’s Charter of Fundamental Rights (Articles 11 and 21) and Treaty on the European Union (Articles 2 and 6).

This language surrounding this ban will be introduced into the following Hungarian legislation:

• The Child Protection Act;
• The Act on Business Advertising Activity;
• The Media Act – all such content will be qualified as category V (unsuitable for minors), and the publication of such content will be banned in public service advertisements;
• The Family Protection Act and the Public Education Act – such topics cannot be part of sexuality education, schools cannot invite external speakers or NGOs for education on “sexual culture, sexual life, sexual orientation or sexual development” unless they receive a special licence by the state to do so. Participating in such activity without a licence is classified as a misdemeanour.

The discriminatory language being introduced to the Media Act constitutes a clear violation of the EU’s Audiovisual Media Services Directive. The discriminatory language being introduced to the Act on Business Advertising Activity constitutes a violation of the EU’s Unfair Commercial Practices Directive. The discriminatory language being introduced to the Business Advertising Activity Act and the Family Protection Act breaches the right to freedom of service provision and freedom of movement of goods as set out in the Treaty on the Functioning of the European Union.

According to Executive Director of ILGA-Europe, Evelyne Paradis: “With this vote, Hungary has adopted a Russian style anti-propaganda law that will effectively ban the representation or communication about diverse sexual orientations, gender identities and sex characteristics in the Hungarian public sphere, as well as specific places such as in schools. This law clearly violates EU principles set out in the Charter of Fundamental Rights and the Treaties, as well as at least two EU directives.

“The European Commission can no longer turn a blind eye to the ongoing legislative attacks launched by FIDESZ against the human rights and fundamental freedoms of LGBTI people in Hungary, but needs to use all instruments available to hold Hungary accountable for the respect of fundamental rights, including LGBTI rights. The enabling conditions of the Cohesion Funds clearly state that Member States need to respect the fundamental rights set out in the Charter. Hungary is violating fundamental rights with this new law and thus no EU funds should be paid out to Hungary before the law is withdrawn.”

Paradis concluded: “Building on the European Commission’s LGBTIQ Equality Strategy 2020-2025 and renewed public commitments, LGBTI people across the EU are still waiting for the Commission to take a clear stand towards Member States and use all tools available: negotiations, infringement procedures, the rule of law reports, ongoing Article 7 procedures, as well as funding instruments, to ensure that the Hungarian government stops the ongoing violation of LGBTI human rights in its country.”

ILGA-Europe’s advocacy director, Katrin Hugendubel and Björn Sieverding from the Network of European LGBTIQ Families explore the issues coming down the line in terms of rainbow family rights, including direct child-parent recognition from birth, equal opportunities for children to find new parents by adoption or foster care, access to ART (including funding), and multi-parenting possibilities.

From committing to end intersex genial mutilation to improving freedom of movement for rainbow families, find out in our blog why this new EU strategy is great news for LGBTI kids.

“Children’s rights are human rights”.

On 24 March 2021, the European Commission published the EU Strategy on the Rights of the Child. Protecting and promoting the rights of the child is a core objective of the EU and therefore, the strategy aims to “build the best possible life for children in the EU and across the globe.” It strongly complements the EU LGBTIQ Equality Strategy 2020–2025, committing to clear actions to end intersex genital mutilation, tackle online bullying of LGBTI youth, and improve free movement for rainbow families.

Here are the key points of the strategy that focus on LGBTI kids:

It acknowledges the similarities between intersex genital mutilation and female genital mutilation

Intersex genial mutilation (IGM) and female genital mutilation (FGM) have, unfortunately, a lot in common. In the strategy the EC is explicitly acknowledging so by noting that “more than 200 million women and girls worldwide are survivors of FGM, including over 600.000 in the EU. 62% of intersex people who had undergone a surgery said neither they nor their parents gave fully informed consent before medical treatment or intervention to modify their sex characteristics.

To put an end to this, the key action by the EC will be to “support the exchange of good practices on ending non-vital surgery and medical intervention on intersex infants and adolescents to make them fit the typical definition of male or female without their or their parents’ fully informed consent (IGM).”

It will tackle cyber harassment of LGBTI children

Children experience violence at school and online. According to the 2018 PISA results, 23% of students reported being bullied at school. On cyber harassment, the strategy points out that “almost one third of girls and 20% of boys experienced disturbing content once a month in the past year; and children from minorities encounter upsetting events online more frequently.” The latest Fundamental Rights Agency survey on LGBTI people in the EU shows that amongst LGBTI 15–17 years old respondents, 15% have experienced cyber harassment due to their sexual orientation, gender identity, or sex characteristics.

To tackle this, the EC will update the Better Internet for Kids Strategy in 2022 in order to raise awareness of and build capacity around cyberbullying, recognise mis- and disinformation, and promote healthy and responsible behaviour online.

It will improve freedom of movement for rainbow families

The right to freedom of movement and residence of EU citizens is the cornerstone of the European Union, however, this is far from being true for rainbow families. A baby with two mothers is currently at risk of statelessness, and Clai Hamilton, spouse of Romanian Adrian Coman, has not been granted residency in Romania yet, after an European Court issued a landmark judgement in their favour. In the strategy, the EC proposes a horizontal legislative initiative for 2022 to support the mutual recognition of parenthood between EU countries.

With their first ever Strategy on the Rights of the Child, the European Commission has explicitly acknowledged the specific discriminations and challenges faced by LGBTI children. In addition to the above-mentioned points, the Strategy recognises the need to pay specific attention to LGBTI children in the areas of health, education, socioeconomic inclusion, housing and protection from discrimination, both online and offline.

ILGA-Europe will now work with our partners and the European Commission to ensure the implementation of commitments made in the Strategy to address these issues, and to ensure that solutions reach and include LGBTI children across Europe.

Together with the under-signed organisations we call on the European Union to adopt a forward-thinking and truly inclusive approach to gender-based violence – that leaves no one behind and strives to achieve real change in the lives of all people, without discrimination.

To meaningfully address gender-based violence in the European Union, we must promote inclusion, safety, protection, well-being and effective remedies for those most at risk.

In the lead up to International Women’s Day, 8 March, and the expected publication of a draft EU law to address violence against women and domestic violence, the under-signed organisations have adopted this manifesto for a truly inclusive EU law and policy. We welcome the leadership of the European Commission in taking action, and the engagement of the European Parliament, and urge everyone who will be involved in this effort to take an inclusive and intersectional feminist approach.

People facing marginalisation and intersectional discrimination – such as racialised women, women with disabilities, sex workers, those of lower socio-economic status, experiencing homelessness, with precarious or irregular migration status, as well as people with diverse sexual orientation, gender identities and expressions and sex characteristics including trans and non-binary people, are among the most at risk of gender-based violence and least protected and supported by existing efforts to prevent and tackle violence and other harm. 

Measures that aim to address gender-based violence by focusing on increasing criminalisation, policing and incarceration can make many people and communities more vulnerable, reproducing structural, institutional and interpersonal discrimination and violence.

We urge the European Union decision makers to strive for an ambitious and comprehensive package of legal, policy and financial measures to address gender-based violence and to ensure victims’ rights that:

• Centres the perspectives, concerns and recommendations of those facing multiple and intersecting forms of discrimination.
• Takes an intersectional and rights-based approach, recognising that to achieve gender equality and freedom from gender-based violence and protect fundamental rights for all, we have to address all forms of violence, in particular when linked to gender, gender identity and expression, sex characteristics, sexual orientation, race and ethnicity, age, disability, class, religion and migration status, and that those who experience intersectional discrimination face greater vulnerability to all forms of gender-based violence and domestic violence.
• Addresses structural and historical harms and drivers of gender-based violence, and underlying issues such as poverty and oppression, including those created, enabled and normalised by states.
  • Addresses the laws, policies, practices and by-laws that discourage and prevent victims from reporting – such as those that criminalise aspects of sex work including clients, migration and homelessness – or that deny survivors access to essential sexual and reproductive health services, as well as gender-based and intersectional violence perpetrated by police. 
  • This requires review and reform of such laws, policies, practices and by-laws as well as specific measures to promote inclusion, safety, well-being, remedy and reparations for particularly affected groups, including in the context of the COVID-19 pandemic, where the increased powers of the police and requirement to present personal identity and vaccination documents increase the risk of policing of marginalised groups.

• Prioritises a social, community and survivor-centred approach over further criminalisation, invests in holistic social and support services, including mental health and sexual and reproductive health care, social protection and harm reduction, information provision, community interventions, and mechanisms that enable people to access services, remedies and stability, including residence status, without conditions or requirements to engage with law enforcement and the criminal legal system. Ensures that all women as well as people with diverse sexual orientation, gender identities and expressions and sex characteristics fleeing violence are able to access safe, suitable and stable accommodation and other support services without furthering the cycle of abuse. 
• Addresses harmful practices such as female genital mutilation; human trafficking; and non-consensual medical interventions such as forced abortion, forced contraception, forced sterilisation, intersex genital mutilation, forced gender reassignment, through this rights-based and intersectional feminist approach. 
• Ensures safety and protection for people who do wish to engage with authorities and with the criminal legal system, protection from secondary victimisation, including sanctions, penalties and immigration enforcement, and ensures accessibility of the justice system and procedural accommodation for victims, including people with disabilities. 
• Does not fall behind, and rather builds upon, existing European standards, including the Istanbul Convention and the Victims’ Rights Directive.

Sign now!

Signed by: 

• Amnesty International
• Center for Reproductive Rights
• European Federation of Organisations working with Homeless People (FEANTSA) 
• European Network Against Racism (ENAR)
• The European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe)
• European Sex Workers’ Rights Alliance  (ESWA)
• Equinox Initiative for Racial Justice (Equinox)
• Fair Trials
• International Planned Parenthood Federation European Network (IPPF EN)
• La Strada International
• PICUM- Platform for International Cooperation on Undocumented Migrants
• TGEU – Transgender Europe

RESOURCES:

Victoria Law: Against Carceral Feminism. 17.10.2014, Jacobin. Available here.

Towards Gender Justice Rethinking EU Gender Equality Policy From an Intersectional Perspective. Equinox- Initiative for Racial Justice, 2021. Available here.

 The EU Victims’ Rights Directive refers to gender-based violence as “violence that is directed against a person because of that person’s gender, gender identity or gender expression or that affects a person of a particular gender disproportionately. See more.