Refusal to provide services

(Application nos 51671/10 and 36516/10), September 2011

Find Court’s judgement here.

• In both cases the issue is the denial of services to members of the public because of their sexual orientation by a religiously-motivated individual. Ms Ladele, a marriage registrar, and Mr McFarlane, a relationship counsellor, refused to respectively carry out civil partnerships and counselling for same-sex couples, due to their Christian beliefs. Disciplinary sanctions were taken against them by their employers.
• Professor Robert Wintemute on behalf of ILGA-Europe, the International Commission of Jurists, and FIDH submitted the following:
  • Individuals providing good or services are not entitled to accommodation of their religious beliefs where they require that they exclude segments of society on the basis of personal identity characteristics such as sexual orientation. The right to manifest one’s religion is not absolute and may be circumscribed in the name of compelling objectives. Protecting the right of others to be free from discrimination is a legitimate limitation on the right to manifest one’s religion in the public sphere. It is necessary in a democratic society because the elimination of discrimination based on sexual orientation corresponds to a pressing social need.
  • This analysis is borne out by national law and practice which commonly deny such exemption to ensure the equal provision of goods and services to people regardless of sexual orientation.
• The European Court of Human Rights delivered its judgement in 15 January 2013.
• Following the same approach as interveners above, the Court held that there was no violation by the State of the applicants’ right to freedom of religion (Article 9 of the Convention). Its reasoning focused on the importance of balancing the right to freedom of religion with the public interest in providing non-discriminatory services and ‘ensuring that members of the public, regardless of their sexual orientation, are treated with dignity and have equal access to services.’

This joint ILGA-Europe and Transgender Europe contribution is being submitted to the European Commission in view of the review of the implementation of Dir 2004/113/EC “in line with the jurisprudence of the European Court of Justice on gender identity and gender discrimination” during 2011; and the review of Dir 2006/54/EC during 2012 as indicated in the Actions to implement the Strategy for Equality between Women and Men 2010-2015.

ILGA-Europe and TGEU recommend to the European Commission to…

1. proceed to the review of the implementation of both directives with a particular focus on discrimination based on gender identity and gender expression
2. call on Bulgaria, Italy, Liechtenstein, Malta, Poland, Portugal and Romania to amend the restrictive understanding of their national law implementing both directives so as to ensure a minimal protection against discrimination on the ground of gender identity and gender expression
3. ask for clarifications to Cyprus, Iceland, Latvia and Luxembourg where the coverage of gender identity and gender expression by national legislation remains unclear
4. launch an infringement procedure against those Member States that do not undertake the necessary changes
5. undertake a legal analysis of requirements for gender recognition legislation (i.e. change of name and legal gender) and their requirements in Member States towards their compatibility with both directives
6. liaise with the Member States to ensure that national equality bodies investigate cases of discrimination on the ground of gender identity and gender expression
7. ensure that national authorities and equality bodies give publicity to the coverage of gender identity and gender expression in their anti-discrimination policy
8. promote good practices put in place in some of the Member States in the field of gender-based discrimination
9. organise „train the trainers? programmes on legal issues designed for Member States
10. encourage Member States to organize trainings on discrimination issues for the judges and all the legal officers and national equality bodies? officers (with a particular focus on the situation of transgender and intersex people)
11. liaise with DG SANCO to develop measures targeted at improving the access of trans-people towards general health-care provision such as educational programs combating prejudice among medical practitioners and offering guidance on development and implementation of trans-friendly treatment guidelines to all Member States
12. commission research on discrimination against intersex people and how to best cover them under the existing EU legal framework.