Amid political turmoil, war, social issues and cultural changes, Pride celebrations in Europe continue to demonstrate the resilience and determination of LGBTI communities

Today, on the eve of EuroPride in Thessaloniki, we are highlighting a number of significant Pride events on the continent, and one clear message shines through: LGBTI people are persisting in asserting their right to assemble and freely express themselves, thereby firmly establishing their presence in society. Pride events not only celebrate identity and diversity but also serve as critical platforms for political engagement. They amplify the voices of LGBTI people across Europe, who continue to push boundaries and demand their rightful place in society. Here are just a few of the thousands that have and will happen across Europe this year, in places where challenges are acute.

Kyiv Pride, Ukraine

Kyiv Pride 2024, on June 16, took place amidst challenging circumstances, reflecting the determination of Ukraine’s LGBTI community. Despite facing a cap on participation and heightened security measures, over 500 people marched through the streets of the capital to advocate for partnership recognition and protections against hate crimes. The event occurred against a backdrop of ongoing war, underscoring the urgent need for legislative reforms to safeguard LGBTI rights in Ukraine. Despite tensions and counter-protests, Kyiv Pride 2024 stood as a powerful assertion of the community’s right to freedom of assembly and expression.

“We took only a few steps, we made this painful compromise for the sake of safety and in order to revive the tradition and make a powerful and open Kyiv Pride March next year.” – Anna Sharygina, lead organiser of KyivPride.

La Pride des Banlieues (The Pride of the Suburbs), La Courneuve, France

La Pride des Banlieues happened in La Courneuve on June 22, representing LGBTI people from French working-class areas, many of whom are racialised. The group has been organising the Pride for several years in Saint-Denis. This year, however, the municipalities denied permission to march in Saint-Denis because of preparations for the Olympic Games in the city. Due to a last-minute relocation from its original venue and losing support from a municipality that had previously been an ally of past La Pride des Banlieues marches, the event took place in another suburb of Paris with less resources for security and less time to figure out new support infrastructure.

It was important that La Pride des Banlieues took place this year as the far-right opposition has been gaining more traction in France, getting more intense in their actions against LGBTI communities, with racialised LGBTI communities particularly facing multiple situations of discrimination and harassment. In their political message at La Pride des Banlieues, the organisers and their constituents condemned rising hate speech, discriminatory immigration policies, and institutional racism, aiming to resist far-right co-optation and mobilise solidarity against oppression of ethnic minorities and LGBTI communities in the suburbs.

“The fight against the far-right cannot be reduced to a universal fight, we must recognise the multiple and interconnected realities of oppression.” – La Pride des Banlieues organisers.

Trans Pride Istanbul, Turkey

Trans Pride Istanbul on Sunday June 23 was marked by decentralised actions across the city. Under the theme “Perpetrator State,” participants asserted trans visibility and existence, refusing to be silenced despite bans and oppression. Rather than a centralised march, activists mounted a number of smaller, unannounced activities like hanging trans flags, projecting messages across city landmarks and reading of a statement in front of Pride attendees. The event unfolded amidst stringent security measures, including metro station closures and a heavy police presence. Two people were detained and released after. This year’s Trans Pride Istanbul not only showcased solidarity and determination among Turkey’s trans community but also highlighted ongoing issues of discrimination and the fight for visibility and rights, echoing their message that the state is accountable for perpetuating violence and systemic injustices against trans people.

“We are trans people who are made the targets of violent and discriminatory policies at any chance given just because of our trans identities.” – Trans Pride Istanbul organisers

Looking Ahead

As we approach the end of June, two more significant events lie ahead this weekend.

Bucharest Pride, Romania

More than 25,000 people are expected to take to the streets of Bucharest on Saturday, June 29 to celebrate diversity and claim the rights of the LGBTI community at a crucial moment in Romania. Both presidential and general elections are approaching, and 20% of Romanian MEPs elected to the European Parliament were from the far right, with two of them using anti-LGBTI hate speech. Additionally, a new referendum regarding the definition of families is being pushed by the government opposition.

Pride in Bucharest will address the urgent need for legal recognition and protection of all same-sex families, continuing the push for the immediate implementation of the 2018 Coman case. In the case, the European Court of Justice affirmed residency rights in EU countries (that do not recognise same-sex unions) for the spouse of an EU citizen exercising their right to freedom of movement. Romania has yet to implement the verdict by granting Andrew Coman’s husband a residence permit, and a draft law has been adopted that would stop Romania from implementing it.

ILGA-Europe will be in Bucharest this coming October for their Annual Conference, working with local hosts ACCEPT and MozaiQ, recognizing this as a crucial moment for LGBTI human rights in Romania.

Istanbul Pride, Turkey

Istanbul Pride will take place on Sunday, June 30. Given the government and police response to Pride in the country over the past years, we will be closely monitoring what is happening. One thing we do know is that the LGBTI community in Istanbul and their allies will assert their human right to freedom of assembly and freedom of expression by attending Pride, with pride, resilience and courage. We will be reporting on Istanbul in this year’s instalment of our Turkey Pride monitoring blog over the coming weeks, as we learn from activists and organisers how officials are responding to Prides across the country. You can read our Turkey Pride monitoring blog from 2023 here.

An opinion from the Advocate General of the Court of Justice of the European Union states that documents received in the UK by Romanian trans man must be recognised in his home country.

In a significant development regarding the rights of trans people in the European Union, the Advocate General of the Court of Justice of the European Union (CJEU) has issued an opinion calling for the automatic recognition in birth certificates of new name and gender marker acquired in a Member State.

The opinion specifically pertains to the case of Arian Mirzarafie-Ahi, a trans Romanian man facing his home country’s authorities’ refusal to recognise in his birth certificate his new gender marker, acquired further to his legal gender recognition in the United Kingdom.

Advocate General Jean Richard de La Tour said it was imperative that the Romanian state record in his birth certificate entries related to his name and gender without additional procedures. This recognition, argued the Advocate General, is essential in upholding the rights to free movement and private and family life guaranteed by the European Union.

Arian’s case, supported by the ACCEPT Association, ILGA-Europe and TGEU, marks a pivotal moment in addressing the mutual equivalence of legal gender recognition (LGR) procedures across EU Member States.

The refusal of authorities in Romania to recognise Arian’s UK-issued identity documents has left him in a precarious situation, living with two different identities. Despite being a citizen of the European Union, Arian’s ability to exercise his freedom of movement and his right to private and family life is hindered by the lack of recognition of his true identity in his home country. This discrepancy exposes him to discrimination and humiliating treatment, particularly at border crossings.

Expressing anticipation for a favourable judgment from the CJEU, Arian emphasised the significance of having his identity accurately represented in official documents. “The favourable judgment of the CJEU is extremely important for me and many other Romanian and EU citizens,” he said. “It is about respecting a fundamental civil right. I am Romanian, I am in the European Union, I am trans. My documents must represent me and be updated.”

The importance of this case extends beyond Arian’s individual circumstances. It underscores the broader issue faced by thousands of individuals whose rights are compromised due to disparities in identity recognition among EU Member States. The opinion of the Advocate General reinforces the principle that rights legally obtained in one Member State must remain valid throughout the EU.

In response to the Advocate General’s opinion, Katrin Hugendubel, Advocacy Director at ILGA-Europe, added: “The AG opinion confirms what we have been pointing out for EU institutions for quite some time: without mutual recognition of legal gender recognition from one member state to another, the right to freedom of movement is not guaranteed for trans people in the EU. We are looking forward to the judgement confirming this opinion and urge the European Commission yet again to put forward legislation that will guarantee the freedom of movement for all LGBTI people under its next term. The EU directive on parenthood recognition is a very important piece of the puzzle to ensure the freedom to reside and move across the EU for LGBTI people, but more is needed to ensure that trans people can move freely across the EU and enjoy citizenship rights on equal footing with every other citizen of the EU.”

As the CJEU deliberates on this case, there is a collective hope that the judgment will align with the opinion of the Advocate General and ensure the automatic recognition of Arian’s legal gender recognition in the corresponding entries of his birth certificate by the Romanian state. However, we hope that the Court will not take into account in its judgment the questions of “marriage and parentage” emphasised by the Advocate General in his Opinion, which are not at stake in Arian’s case.

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.

European court has found that Romania breached the right to respect for the family life of 21 same-sex Romanian couples by failing to recognise their relationships.

In a ruling released today, the European Court of Human Rights (ECHR) found that Romania violated Article 8 (right to respect for private and family right) of the European Convention on Human Rights.

21 same-sex couples lodged over two dozen complaints to the ECHR between 2019 and 2020 arguing that, because Romania does not recognise any type of same-sex union, it was impossible for them to legally safeguard their relationships. The couples, born between 1967 and 1996, were all of Romanian nationality and currently live in various parts of the country.

The couples turned to the European court since local authorities had refused their demands. After living together for different lengths of time, the couples gave notice to the local registry offices of their intention to marry. All requests were rejected because according to the Romanian Civil code “marriage is concluded between a man and a woman” and same-sex marriage is prohibited.

In its ruling, the ECHR reiterated that Council of Europe member states are required to provide a legal framework that protects and recognises same-sex relationships. It also referred to a previous judgment Fedotova and Others  v. Russia and remarked that states have some discretion on the form of recognition.

The court concluded its decision by noting that “none of the arguments put forward by the [Romanian] Government to justify the restriction on legal unions to heterosexual marriage could outweigh the applicants’ interest in having their relationships recognised.”

The 21 couples had declared that they were unable to access numerous rights available for married couples such as protections in property or inheritance, and other obstacles all same-sex couples in Romania face. ILGA-Europe provided third-party submissions jointly with FIDH, NELFA and ECSOL.

This May, Romania, ranked 41^st on ILGA-Europe’s annual Rainbow Map and Index. Close to its fifth anniversary, Romania has not yet implemented the landmark judgment issued by the CJEU recognising the freedom of movement of same-sex spouses in the EU.

Arian Mirzarafie-Ahi, a transgender man with Romanian and British citizenship, has filed a first-of-its-kind lawsuit in Romania against Romanian authorities over their refusal to recognize his new male name and gender identity acquired in the United Kingdom (while still treated as an EU Member State). The lawsuit, which raised fundamental questions under EU law, has now been referred to the Court of Justice of the European Union (CJEU) in Luxembourg.

ACCEPT Romania, a leading Romanian NGO for LGBTQ+ rights, is helping Arian bring this landmark legal claim before the CJEU to have his new gender identity acknowledged in Romania, in accordance with his free movement and citizenship rights.

Arian began the legal process to change his gender identity markers and name in 2016. He was ultimately granted a gender recognition certificate by the UK authorities in 2020, during the Brexit transition period (when the UK was still treated as an EU Member State).

Romania now refuses to acknowledge the name and gender recognition that Arian received in the UK. Instead, it is demanding that Arian undergo Romania’s own gender recognition procedure, which has already been found to violate the European Convention on Human Rights. As a result, Arian now finds himself with two different identities across two countries, which has impacted his well being, his freedom of movement, and his EU citizenship rights.

This situation is humiliating and deeply affects Arian’s right to dignity under the Universal Declaration of Human Rights and the European Convention on Human Rights. Arian’s ability to travel freely in the EU, like any EU citizen, has been unjustifiably restricted, including his ability to visit family members in Romania, because his Romanian passport displays the wrong identity.

Arian’s case is the first of its kind to reach the European Courts. He hopes the CJEU will side with him and rule that the Romanian authorities should acknowledge his UK gender recognition and issue him new identity documents with the correct name and gender, without subjecting him to the full Romanian gender recognition procedure.

This case could set a precedent for other transgender people whose gender recognition in one Member State is not being acknowledged elsewhere in the EU, harming their ability to travel freely, reside, work or study across the EU, or even to vote.

The Court will also have the opportunity to confirm that the rights that EU citizens lawfully acquired in the UK when it was still treated as a Member State, such as Arian’s gender change, are portable when those citizens wish to exercise their free movement rights.

Arian and ACCEPT are represented by human rights lawyer Iustina Ionescu and assisted by leading international law firm White & Case on a pro-bono basis.

The facts of this case are as follows.

Background to the case

Arian was born in Romania and migrated to the UK in 2008, and later gained dual citizenship. He started the medical and legal transition in the UK in 2016 at the age of 24, and obtained a UK gender recognition certificate in June 2020, when the UK was still treated as an EU member state.

Arian attempted to register his name and gender change with the Romanian authorities in 2021, but his request was denied. Instead, the Romanian authorities demanded that Arian undergo the full Romanian gender recognition procedure before the national courts. That procedure has already been found to be in violation of human rights by the European Court of Human Rights (X and Y v Romania).

Arian then filed lawsuits in the Romanian national court against the Directorate for the Persons’ Records in Cluj, Romania; against the Civil Status Service, the Directorate for the Persons’ Records and the Administration of Databases and against Cluj Municipality represented by Emil Boc, over their refusal to change his identity documents through a simple administrative procedure.

Through this legal action, Arian is requesting that the national courts oblige the Romanian authorities to change his gender and first name, as well as to issue a new birth certificate.

Before Brexit, Arian could have travelled based on his British passport that reflects his gender identity. However, since Brexit, he can exercise his EU citizen rights only through his Romanian identity documents, which do not reflect his gender identity.

Alongside this breach of Arian’s fundamental rights, especially his right to free movement and residence in the EU, this disparity between his Romanian and British documents exposes him to humiliation and discrimination.

Arian has to travel to the EU with a Romanian passport that reflects neither his gender identity nor his appearance, or must travel on his UK passport as a non-EU citizen.

Considering that Arian’s case raises new issues of principle requiring the interpretation of EU law, in particular in relation to free movement rights and EU citizenship, the Romanian court has decided to refer the case to the European Court of Justice for a preliminary ruling. After hearing the parties, both in writing and orally, the Court of Justice will render a judgement that will be binding on the Romanian courts and throughout the EU.

Quotes

Arian said: “My entry into Romania’s territory, the country where I was born and where I have family members that I want to visit, depends on a set of identity documents that do not reflect who I am.

Due to the Romanian State’s refusal to recognise my gender identity and issue updated documents, I have already been a victim of discrimination at Romanian airports.

“All that I want is to be respected as a Romanian and European citizen and to have my Romanian identity documents updated, just as my UK documents were when I transitioned. I want to be able to enjoy all my rights, but especially my right to dignity.”

His lawyer, Iustina Ionescu, said: “The Romanian state once again violates European law and disregards the efforts made by a Romanian citizen to obtain the recognition of his gender identity in another EU Member State.

“For over a year and a half, the Romanian civil status authorities have sent Arian on a fool’s errand – they have forced him to once again go through a procedure that is entirely random in Romania, and that has already been declared by the ECtHR as violating human rights, and that does not guarantee him a solution of the situation.

“Before being European citizens, we are Romanian citizens, and the state should do its duty towards all its citizens. Fortunately, we can turn to European justice to ensure that we receive equal treatment without discrimination. The European Court of Justice has ruled many times that EU member states should refrain from taking decisions that restrict free movement and the rights of EU citizenship, as Romania did in this case.”

Florina Presadă, executive director of ACCEPT, commented: „ACCEPT Association has been working for years to put an end to the discrimination and abuse that the Romanian state subjects transgender persons in Romania by not providing a legal gender recognition procedure and all services required so that transgender persons can exercise their right to self-determination.

We have been providing legal counselling, psychological support and guidance in transition for years for transgender Romanian citizens, and we have also supported strategic litigation cases in order to show, beyond any doubt, that the rights of transgender persons in Romania are being violated. Our goal is to put an end to the current laws, policies and practices leading to the discrimination of transgender persons.

We stand by Arian, as we stand by every transgender person in Romania and in any other EU member state that does not recognize these persons’ rights to self-determination and dignity. We hope this ruling will show that European rights are for everyone, regardless of gender identity or expression.”

Patrick Brăila, trans activist, declares: “Among the Romanians who left for other European countries for a better life, there are also transgender Romanians who work and live in these states, where they managed to obtain citizenship and which became their adoptive countries. One of them is Arian, a Romanian and British citizen, whom the Romanian state humiliated and wronged when it did not recognize his identity and put him in abusive and intrusive situations. We trust that the CJEU will give him justice, thus restoring the dignity of both him and other trans people who know that their rights as European citizens can no longer be violated.”

“To paraphrase Ursula von der Leyen, if you are trans in one member State, you are trans in all member States. This needs to be settled once and for all,” comments Lenny Emson, TGEU Executive Director. “Having to go through the ordeal of having your gender identity vetted several times is unfair and puts trans people at a clear disadvantage when compared to others living in the EU. Romania, in particular, has no quick, transparent, and accessible legal gender recognition procedures, as confirmed by the European Court of Human Rights. We are proud of Arian for claiming his right to enjoy his EU right to freedom of movement.”

Katrin Hugendubel, Advocacy Director at ILGA-Europe added: “This case is just one example of what trans people in the EU have to go through when their gender recognition from a Member State is not recognised in another, forcing them to undergo the full legal recognition procedure again. This is particularly difficult and troubling in those countries that lack an LGR procedure in conformity with international human rights law standards. This judgment from the CJEU will establish a clear obligation to recognise gender recognition from one Member State in another. It will rightfully enable trans people to move freely across the EU, and to enjoy EU citizenship rights on equal footing with everyone else.”

For further information and interviews, please contact Diana Dragomir, Head of communication & PR ACCEPT Romania at diana@acceptromania.ro or Florina Presadă, Executive Director of ACCEPT Romania at florina@acceptromania.ro.

The submission covers developments in eight EU Member States as regards rule of law developments in the countries which have had an impact on the fundamental rights of LGBTI people and their democratic participation, with a focus on the past year (2022).

We have kept our inputs relevant to the content asked for by the consultation, and therefore we have not included all fundamental rights violations against LGBTI people, or all restrictions experienced by LGBTI civil society in the respective countries. We have only included them where there is a clear link to the issues of rule of law contained in the consultation.

Notably the submission covers the following topics:

• Manipulation of judicial processes to attempt to erode the human rights of LGBTI people and their access to justice;
• Politicians attempting to discredit and delegitimise the rulings of courts that uphold the rights of LGBTI people;
• Harassment and intimidation of LGBTI human rights defenders by law enforcement/prosecution services;
• Smear campaigns and negative narratives against LGBTI people, particularly where independence of media is threatened;
• SLAPPs against activists or journalists reporting on topics of public interest related to LGBTI;
• Censorship of LGBTI content;
• Tabling and adoption of laws aiming to reduce fundamental rights of LGBTI people;
• Tabling of laws aimed at restricting the functioning of civil society organistions;
• Arbitrary application of Covid-19 regulations to attempt to restrict the freedom of assembly of LGBTI people;
• Continued non-implementation of CJEU or ECtHR judgements which would improve the lives of LGBTI people;
• Anti-LGBTI discriminatory speech from political and religious leaders affecting public perception of LGBTI CSOs and creating an unsafe climate for LGBTI human rights defenders;
• Insufficient implementation of legal protection (e.g. protection against hate crime) for LGBTI people by responsible services, sometimes including Ombudspersons.

Recognition of same-sex marriages in the context of freedom of movement in the EU through the prism of implementation of CJEU’s Coman judgment

Submitted jointly by ILGA-Europe and AIRE Centre

Find here the communicated case.

Expert contributions were provided by organisations PROUD (Czech Republic), LGBT komiteen (Denmark), Inter-LGBT (France), Háttér Társaság (Hungary), KPH & Atlas of Hate (Poland), ACCEPT (Romania), and Legebrita (Slovenia).

The developments encompassed in the submission point to systematic attacks on the fundamental rights of LGBTI people enabled by the weakening of rule of law and democratic structures. We have not included all fundamental rights violations against LGBTI people, or all restrictions experienced by LGBTI civil society in the respective countries, only those which are relevant to the respective headings of the consultation, where there is a clear link to rule of law.

Notably the submission covers the following topics:

• Political interference or bias in court cases related to LGBTI rights, in particular where independence of the judiciary is under attack;
• Anti-LGBTI bias, smear campaigns and censorship of LGBTI content, in particular where media freedom is under attack;
• Funding restrictions or discriminatory distribution of public or EU funds, affecting LGBTI organisations;
• Arbitrary application of Covid-19 regulations to attempt to restrict the freedom of assembly of LGBTI people;
• Covid-19 emergency measures affecting the process of preparing and enacting laws (exclusion of LGBTI CSOs in consultation phases or even fast-track adoption of legislation directly attacking LGBTI people);
• Non-implementation of CJEU or ECtHR judgements which would improve the lives of LGBTI people;
• Judicial harassment of LGBTI activists (in particular SLAPPs);
• Insufficient follow-up of anti-LGBTI hate crime cases;
• Anti-LGBTI discriminatory speech from political and religious leaders affecting public perception of LGBTI CSOs and creating an unsafe climate for LGBTI human rights defenders (in some cases leading to attacks on CSO offices, employees and volunteers).

Recognition of same-sex marriages in the context of freedom of movement in the EU through the prism of implementation of CJEU’s Coman judgment.

Submitted jointly by AIRE Centre, ICJ and ILGA-Europe.

Find here the communicated case.

We welcome today’s judgment from the European Court of Human Rights in the case of Association ACCEPT and Others v. Romania. 

The Court found a violation of Article 8 (right to private and family life) and 11 (freedom of association and assembly) together with Article 14 (prohibition of discrimination).  

The case concerned a protest against a screening of a film involving a same-sex family during the applicant association’s LGBT History Month in February 2013. The protesters were carrying far-right paraphernalia and cinemagoers had been verbally abused.

Court found that the authorities had failed to offer adequate protection in respect of the individual applicants’ dignity and private life, and to effectively investigate the real nature of the homophobic abuse directed against them.  Importantly the Court pointed out that “in doing so, the authorities showed their own bias towards members of the LGBT community”.

• You can download the judgment here. 

Three years ago, Adrian and his partner Clai were successful bringing their case to the Court of Justice of the European Union, which judged that same-sex spouses are fully recognised as spouses under the EU freedom of movement directive.

As a result, Adrian and Clai, who is American, should have been granted a residence permit in Romania. To this day, the judgement has not been enacted by the Romanian state, and in December 2020, the couple took their case to the European Court of Human Rights to finally get their rights recognised.

We’re also joined by Arpi Avetisyan, head of litigation at ILGA-Europe, to talk about the wider implications of the latest developments in the Coman case.

Almost three years after the European Court ruled that Romania must recognise a same-sex couple under EU freedom of movement legislation, its government is yet to implement the judgement.

In June 2018, the Court of Justice of the European Union (CJEU) issued a landmark judgement, recognising that same-sex spouses are also spouses under EU freedom of movement laws. Almost three years later, Romania has still not respected the judgement by granting the male spouse of a Romanian man a residence permit in Romania. Together with Romanian LGBTI oganisation ACCEPT, the couple has now taken the case to the European Court of Human Rights to address this failure of implementation of the CJEU judgement and finally get their rights recognised.

In the ground-breaking judgment of Relu Adrian Coman and Others v Inspectoratul General pentru Imigr?ri and Ministerul Afacerilor Interne (Coman and Others), delivered on 5 June 2018, the CJEU clarified that the term ‘spouse’ in the EU Freedom of Movement Directive (2004/38/EC) includes same-sex spouses, and that Romanian authorities must ensure that EU law is implemented equally and duly, without discrimination based on one’s sexual orientation. In practice this means that Romania must recognise same-sex partnerships from other EU countries, and therefore needs to grant a residence permit to Adrian Coman’s partner and others in similar situations.

In line with the CJEU judgment, the right to family life of same-sex couples was reaffirmed by the Constitutional Court of Romania in July 2018, yet Romania continues to refuse to acknowledge the judgments and provide the residence permit. ACCEPT has brought this to the European Commission’s (EC) attention by submitting a complaint about a second case, similar to Coman. However, what we keep hearing from the EC is that in order to start infringement procedure, the EC would have to establish a ‘general and consistent’ non-application of EU legislation, which according to the services is difficult to establish.

According to Teodora Ion Rotaru of ACCEPT Romania: “We rely on the European Commission to ensure that member states correctly implement hard-won rights, like those enshrined by the Coman judgement. The CJUE was adamant that rights pertaining to the protection of rainbow families need to be applicable in practice, and the role of European institutions is even more important when national governments and legislatures fail to protect the rights of European citizens. Even if we now rely on the European Court of Human Rights to enforce EU law in Romania, we trust that the European Commission will step in and ensure that its role as the guardian of the treaties is fulfilled by engaging in a productive dialogue with Romanian authorities.

Arpi Avetisyan, Head of Litigation at ILGA-Europe, added: “The Coman judgment brought a long-awaited clarification on the term ‘spouse’ and established that same-sex spouses enjoy the freedom of movement on equal footing across the EU. Yet the applicants themselves continue to suffer and are unable to exercise their right, due to blatant violations by the Romanian government of its obligations under EU law. CJEU judgments are part of EU law, which has supremacy over national law and must be applied to all national acts.

“It is a very welcome step that the European Court moved ahead with the consideration of the case in timely manner. We hope that the European Commission will join the efforts to ensure that not only the applicants themselves, but other same-sex couples in a similar situation will finally see their freedom of movement and family rights protected.”

Katrin Hugendubel, Advocacy Director with ILGA-Europe, concluded: “We are very disappointed by the fact that the EC is not acting strongly on ensuring that Romania is fully respecting the important judgement in the Coman case. It is hard to see how continuing to ignore such a public and landmark judgement three years later does not point to a systematic refusal to apply the principle of non-discrimination clearly established by the CJEU. It is a sad day for the EU that the couple now is turning the ECHR to find justice.”

Background

The applicants Adrian Coman (a Romanian national) and Clai Hamilton (a US citizen) got married in 2010, in Belgium. Two years later, the couple applied to the Romanian authorities for a residence permit so that Clai could join Adrian, to live and work in Romania as the spouse of an EU citizen. This request was refused and the Romanian Consulate in Brussels also refused to transcribe their marriage certificate into the Romanian register.

The couple filed a discrimination complaint in 2013, and deliberations over which court would hear the case at first instance began. In 2015, the first hearings took place in Bucharest. The preliminary question raised by Adrian and Clai concerned Civil Code Article 277 and the constitutionality of denying recognition to married same-sex couples in Article 277(2), while Article 277(4) notes the applications of freedom of movement. On 18 December   2015, the District Court referred the case   to the Constitutional Court, for a review of the constitutionality of the relevant provisions of the Civil Code and stayed the proceedings until delivery of a decision by the Constitutional Court. The Constitutional Court referred questions for a preliminary ruling to the CJEU, which delivered a judgment on 5 June 2018.

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Further information:

• Read more about the Coman case here and a Q&A here. 
• Find out more about our litigation work.

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

Photo credits: Rudolf Costin

Romania has been found to be in violation of the European Convention on Human Rights because its authorities present transgender people with an impossible dilemma. 

LGBTI rights organisations, ILGA-Europe and Transgender Europe (TGEU) have welcomed today’s judgment in the cases of X and Y v Romania, the European Court of Human Rights (ECtHR) found a violation of Article 8 of the European Convention, in that Romania lacked a clear and foreseeable legal framework for the legal gender recognition. The Court’s judgment was informed by a third-party intervention submitted jointly by ILGA-Europe and TGEU.

The applicants in the case, Mr. X and Mr. Y, spent years in the national courts requesting the authorisation for gender reassignment from female to male and an administrative change of forename and personal digital identity code, and other necessary changes in the civil-status register indicating the applicant’s new forename and male gender. The relevant administrative corrections were refused on the grounds that persons making such requests had to provide proof that they had undergone gender reassignment surgery.

While Applicant X was able to obtain male forenames by deed poll in the UK in 2015, he continued suffering constant inconvenience owing to the mismatch between the female identifiers on the papers issued by the Romanian authorities and the male identifiers on the various documents he had obtained in the United Kingdom. While waiting for a decision from the European Court, Applicant Y felt compelled to undergo various surgeries in order to be able to make the necessary alterations to his civil-status records and have a new birth certificate issued.

The ECtHR observed that the lack of procedure and unreasonable requirements by the national courts had presented both applicants with an impossible dilemma: either they were forced to undergo the surgery, contrary to their right to respect for their physical integrity, or they had to forego recognition of their gender identity, which also came within the scope of respect for private life.

ECtHR finding

The Court found a violation of ECHR Article 8 in that Romania lacked a clear and foreseeable legal framework for legal gender recognition. The Court recalled recommendations by the Committee of Ministers and the Parliamentary Assembly of the Council of Europe, as well as the United Nations High Commissioner for Human Rights and the UN Independent Expert on SOGI calling on States to adopt procedures allowing persons to have their name and gender changed on official documents in a quick, transparent and accessible manner.

The Court also found that the State failed to provide fair balance between the general interest and the individual interests of the persons concerned. 

Unfortunately, the Court did not address Article 14 claims on non-discrimination based on gender identity that affects the applicants, and thus did not clearly condemn any surgery requirements in legal gender recognition procedures as discriminatory.

Romania’s ACCEPT association estimates that around 120,000 transgender people live in the country, while less than 50 have managed to change their civil status documents in the last 20 years.

According Patrick Br?ila, co-president of ACCEPT: “Gender identity is an inner feeling and a deeply private one, which must be ascertained by the civil status authority on the basis of the trans person’s statement, without being required to provide medical evidence, the testimonies of others, or worse, to be forced to undergo surgery on the genitals that the person in question either does not want or that are impossible to have in our country, due to the absence of specialists in the field. These interventions cost over €50,000 in foreign countries. We therefore request the Government of Romania, which has the obligation to implement this decision, to develop in collaboration with the ACCEPT Association and the transgender community in Romania, a simplified administrative procedure that allows the modification of identity documents of trans persons, respecting their dignity and personal autonomy and their right to self-determination.”

Welcoming the judgement, Antonella Lerca, member of the TGEU Board said: “Transgender people in Romania are very excited about the news from the European Court of Human Rights. We have been waiting for a long time to hear this, particularly those at the margins. Trans sex workers, poor and homeless trans people, have been rejected by society and been trampled on by the State. We call upon the Romanian state to respect its obligations and immediately introduce a legal gender recognition procedure that is quick, transparent, and accessible and based on self-determination.”

Head of Litigation at ILGA-Europe, Arpi Avetisyan added: “We welcome this judgment as it reiterates the need for establishment of a clear legal framework for the legal gender recognition without any requirements violating the right to privacy and bodily integrity in Council of Europe Member States. Putting trans people in a dilemma of choosing between having their physical integrity respected or having their gender identity recognised is unacceptable. The Court took note of declining number of Member States requiring gender reassignment surgery as a prerequisite for legal gender recognition. It is time that countries across Europe set in place legal gender recognition procedures in line with international human rights standards.”

Further information:

• Find out more about the judgement. 
• Find here our intervention.
• Find out more about ILGA-Europe’s strategic litigation work.
• Find out more about Romania in our Rainbow Map

For media requests, please contact Ana Muñoz: ana@ilga-europe.org, 

Recognition of same-sex unions.

Submitted jointly by ILGA-Europe, FIDH, NELFA and ECSOL. 

Find here the communicated case.

In a decision issued this morning (17 September), the romanian constitutional court has approved a proposal (by 7 votes to 2) to hold a referendum on the definition of family.

This means that a referendum will now be organised on whether or not to amend the existing definition of family and replace it with text that limits constitutional protection to the marriage of a different-sex couple only.

“This referendum is essentially asking people to approve discriminating against their neighbours, colleagues, friends and family members. Rainbow families, diverse family groups, loving families living in Romania right now are all threatened by this proposal,” said ILGA-Europe’s Advocacy Director, Katrin Hugendubel. “Today, ILGA-Europe would like to reassure the diversity of families in Romania that we see you, we support you and will continue to stand with you.”

Initiated in 2015 by the Coalition for Family (23 NGOs purporting to support family values), the signature collection campaign’s overall aim is to amend the constitutional definition of family, limiting it to the marriage of a different-sex couple.

On 4 September, the Senate’s legal committees approved the initiative to hold a referendum. On 11 September, the Senate, sitting in plenary, approved the initiative by 107 votes; 13 senators voted against.

“Romania has a responsibility to protect all its citizens – straight and LGBTI. The definition of ‘family’ put forward by the supporters of this referendum is frankly inaccurate; it only captures a very limited fraction of what family means to people in 2018. And it is also very out-of-step with reality and with the diversity of families being recognised by international human rights bodies and European courts.” said ILGA-Europe’s Litigation Officer, Arpi Avetisyan.

As the referendum timeline becomes clearer, ILGA-Europe will continue to work closely with LGBTI activists and organisations in Romania during the campaign.

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• Romania is 35^th in the latest Rainbow Europe ranking on law and policy, published in May 2018; rainbow families currently have no legal protection.
• The proposal suggests altering Article 48.1 which currently states that “The family is founded on the freely consented marriage of the spouses, their full equality, as well as the right and duty of the parents to ensure the upbringing, education and instruction of their children”. The rewording aims to remove the reference to “spouses”, replacing it with a specific reference to one man and one woman.

A referendum in Romania asking voters to restrict the constitutional definition of family has failed to reach the required 30% turnout target.

Groups campaigning against the constitutional amendment had urged voters in Romania to boycott the referendum and to stay at home – a call that clearly resonated with families all over the country.

“This proposed definition was always anti-family to its very core. How can excluding generations of children, their parents, siblings or other family members from recognition in the eyes of the state possibly be ‘pro-family’?” asked Evelyne Paradis, ILGA-Europe’s Executive Director.

People were voting on whether they wanted to amend the current neutral wording of Article 48.1 to a narrower definition that excludes many families in Romania – including single parents, multi-generational families, unmarried couples and rainbow families.

The proposed definition would have only recognised married different-sex couples as a family deserving of constitutional protection. In order for the result to be binding, at least 30% of registered voters had to cast a ballot in the referendum.

“Together, through the #boycott campaign, we showed that we, as citizens, want a Romania based upon democratic values, a country where respect, equality and common sense guides society. Today we have shown that we can not be fooled by a political agenda that urges us to hate and polarise society, we have shown that most of us believe that human rights are not to be voted at a referendum,” commented Accept Association, one of ILGA-Europe’s member organisations in Romania, in a statement issued tonight.

 “The campaign of hate against the LGBTI community in Romania failed. But the referendum once again showed how vulnerable the LGBTI community is, in the absence of proper legal recognition of same-sex partnerships and families. It is time that Romania finally ensured that same-sex couples are legally recognised,” ILGA-Europe’s Advocacy Director, Katrin Hugendubel concluded.

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• This year, Romania came in at 35th place in the latest Rainbow Europe ranking on LGBTI equality law and policy, published in May 2018
• Rainbow families currently have no legal protection in Romania.
• Read Accept Association’s reaction (7 October, 2018) here

Legal gender recognition 

(Applications no. 2145/16 and 20607/16), 26 June 2018

Find here the communicated case.

• The present cases concern two trans men who claim that their right to privacy and right to found a family have been violated. The legal framework on legal gender recognition in Romania remains uncertain, subjecting trans people to lengthy judicial procedures and pathologizing and invasive medical requirements when in their quest for recognition of their gender identity.
• The comments delivered by TGEU and ILGA-Europe on 26 June 2018 provide the Court with additional information on: 
  • developments on legal gender recognition in the wider international context, namely a steady gaining of ground for the recognition of trans people’s human rights and a move away from pathologisation of trans identities.
  • The interveners discuss the European legal landscape showing that medicalised and pathologizing legal gender recognition procedures where the judiciary plays a substantial role are not in line with European human rights and equality law standards.

Same-sex spouses are included in the definition of ‘spouse’, for the purposes of freedom of residence of citizens of the EU and their family members. This is the opinion of the Advocate General assigned to examine questions on the right to free movement of EU citizens raised by Adrian Coman and his husband Clai Hamilton. 

In this morning’s press release, Advocate General Wathelet clearly notes that while EU Member States are free to decide on their own marriage legislation, they may not impede an EU citizen’s freedom of residence by refusing to grant their same-sex spouse residence. 

ILGA-Europe are excited by today’s announcement. As third party interveners in the Coman case at national level, ILGA-Europe have been following developments in this case every step of the way, receiving regular updates from our member organisation ACCEPT Association.  

The points raised by the Advocate General’s opinion are very encouraging. This also marks another important milestone for Adrian Coman and Clai Hamilton. They are now one step closer to an answer, potentially one step closer to protection for their own family and one step closer to clarity for lots more rainbow families. 

Who are Adrian and Clai?

Adrian Coman (born in Romania) and Clai Hamilton (a US citizen) were married in Belgium in 2010 but are not recognised as a family by the Romanian authorities. The couple have not been able to live together in Romania as a result and began legal action over five years ago to rectify this.

In 2016, the Romanian Constitutional Court referred the case to the Court of Justice of the European Union, and on 21 November 2017, the Grand Chamber composed of 15 CJEU judges held a public hearing. The Court was being asked to interpret the word “spouse” in the context of EU law on freedom of movement.

Romania currently sits at 35th in the Rainbow Europe ranking on law and policy. 

What is an Advocate General and what does today’s announcement mean?

The 11 Advocates General are independent legal advisers who assist the CJEU’s judges. Their role is an advisory, but influential, one. They take a detailed look at the legal aspects of the case assigned to them, analyse the problem and suggest a solution. 

Their impartial advice, called an ‘opinion’, is not legally binding. (As a result, the court does not have to follow their advice and may issue a decision that differs from what the AG suggests today.) This marks the end of the oral hearing stage of the Coman case. Now, the judges will deliberate before issuing their final decision. 

When will the final decision be made?

At this point, there is no set timetable for when the judgment in the case will be delivered; however, ACCEPT Association and the legal team supporting the Coman Hamilton family have noted that these particular proceedings have been dealt with quite promptly to date and expect a decision in spring 2018.  

How has the opinion been received?

ACCEPT Association has noted “…the Advocate General’s Opinion supports all the arguments ACCEPT and the plaintiffs have put forward to European judges…” and Adrian Coman remarked that “…we can no longer be treated as inferior citizens without equal rights on the basis of the prejudices that some people have about homosexuality.”

• For more reaction from member organisation ACCEPT, Adrian, Clai and their legal team, read their latest statement here.

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• The Advocate General’s opinion has also been published in full on the Court’s website. 
• The initial press release on the opinion is available in PDF format here.
• Video footage (in FR) from the CJEU is available via the European Commission’s audiovisual services.

Violent attack against LGBTI individuals

(Application No: 12060/12), January 2014 

Find Court’s judgement here. (violation of Articles 3 and 14 and award of damages)

• The applicants complained about the authorities’ failure to conduct adequate investigation into their criminal complaints concerning acts of violence motivated by hatred against homosexuals, and more generally about the lack of adequate legislative and other measures to combat hate crimes directed against the LGBTI minority in Romania.
• ILGA-Europe together with FIDH and the AIRE Centre submitted the following:
  • Failure to protect LGBTI individuals from violent attacks or to properly investigate allegations of hate crime and bring the perpetrators to justice threatens not only the rights of the victims but also the rights of the LGBTI community as a whole, as they would fear becoming victims of violent homophobic crimes.
• The European Court of Human Rights delivered its judgement on 12 April 2016.
• In its judgement, the Court referred to the submission (paras 101 to 104), particularly regarding the general climate of hostility towards LGBTI individuals in Europe and the very high level of discrimination on grounds of sexual orientation in Romania. The Court also noted ILGA’s call for adequate training for all law enforcement agencies in the field of LGBTI rights and hate crimes.
• The Court considered that the treatment to which the applicants were subjected and which was directed at their identity must necessarily have aroused in them feelings of fear, anguish and insecurity. It was not compatible with respect for their human dignity. Further, the investigations into the allegations of ill-treatment were ineffective and failed to take into account possible discriminatory motives. Accordingly, the Court found violation of Article 3 read together with Article 14.

Rights to freedom of association, privacy and freedom from discrimination

(Application no. 48301/08), November 2013

Find Court’s decision here. (Inadmissibility)

• This present case arises from the requirement by the authorities that ACCEPT Association (“ACCEPT”) provide details of its new members (inter alia name, profession, and home address) for publication in the special register of associations and foundations. ACCEPT’s objective is to promote the rights of lesbian, gay, bisexual and transgender persons in Romania.
• ILGA-Europe and partners submitted the following:
  • Members of the LGBTI community, and particularly LGBTI human rights defenders, may be at risk of hate motivated violence and other forms of discrimination in Council of Europe member states, and therefore have sound reasons for wishing to protect their privacy.
  • International and comparative precedents protect the rights to freedom of association, privacy and freedom from discrimination of members of human rights organisations.
• The Court delivered inadmissibility decision on 24 May 2016.

This research project is the first of its size and scope has to be carried out among LGBT communities in Bosnia and Herzegovina, Hungary, Macedonia, Moldova and Romania. As such, the initiative is of groundbreaking importance and the data collected will serve to inform ongoing advocacy and policy work.

The report presents the findings on health and access to the health care system by the LGBT communities in five Central and Eastern European countries, as well as draws conclusions and makes recommendations to the relevant stakeholders, including international organisations. It also introduces a methodology and lessons learnt, which could be used for further research.

ILGA-Europe used the results of the research to lobby the EU Commission for the repeal of all laws discriminating on the basis of sexual orientation as a condition of accession to the Union. As of August 2005, only one out of the 13 newly acceded countries – Bulgaria – continues to have such laws.