The following open letter has been jointly sent to the German government by ILGA-Europe, the European Network Against Racism, European Disability Forum and Age Platform Europe.

Dear Chancellor Scholz,

We are writing to you today as a coalition of European NGO networks working on equality and non-discrimination, representing thousands of organisations of LGBTI people, people with disabilities, racialised people, the young and older people. Together with many other human rights organisations we are very concerned  that while a large majority of EU Member States supported the efforts of the Belgian Presidency to finally ensure that the EU’s draft Equal Treatment Directive (2008/0140(CNS)) gets adopted after 14 years of stalling in the Council, it was yet again your government that blocked any progress by not lifting the general reservation.

Considering your strong commitment to advancing equal rights, as well as a clear passage in the coalition agreement that commits to supporting the broadening of anti-discrimination legislation on EU level to include LGBTI people (Überschrift Queeres Leben S.95 des Koalitionsvertrags: „Rechtsakte der EU, die gegen Diskriminierung aufgrund von Rassismus gelten, müssen künftig auch Homophobie und andere Diskriminierung umfasse“), the ongoing general reservation of your Government is cause for concern. Lifting your Government’s blockage would also be an important step to protect older persons from discrimination, another commitment made in the coalition agreement (Überschrift Senioren: “Wir werden ältere Menschen vor Diskriminierung und vor finanzieller Ausbeutung– insb. durch Vorsorgevollmachten – schützen“).

This directive, which represents one step towards more equality, has not reached agreement in the Council for 14 years now. One major blocking stone of any negotiation between Member States has been the general reservation of Germany. In 2024, people living in the EU, especially those at the intersections of inequalities are still not equally protected by law when they experience discrimination in all spheres of life because of their age, gender/sex, belief or religion, sexual orientation, disability, race or ethnic origin. For the moment, across the EU, there is a patchwork of unequal protection, with negative consequences for individuals, businesses and Member States themselves. At a time when acts of racism,  xenophobia, LGBTI-phobia and sexism are on the rise across the EU, this absence of legislative action towards more equality by EU Member States is highly problematic.

What is more, the results of the European elections on 9^th June 2024, have shown quite clearly that in many EU Member States the far-right is on the rise and upcoming national elections might further shift the majorities in the Council. Laws and policies are too often the last line of defence for minorities in our societies. In a social and political context which is increasingly polarised and makes them particularly vulnerable this is further exacerbated. However, there still is a window of opportunity now to finally adopt the Equal Treatment Directive which might close very soon if the governments of more Member States shift to the right.

Amid a surge in far-right political parties gaining seats in the new European Parliament, with gains also at national level expected, the new compositions of the European Parliament and Council will have serious consequences on EU decision making. This is a critical time for the EU and its Member States to fulfil their obligations to ensure that better protection against discrimination in all areas of live is put down in law on EU level, adding to the protection of EU fundamental rights.

For over a decade now, people across the EU hear again and again that Germany could not lift its general reservation due to disagreements in the government. Your Government has clearly committed to furthering equality and non-discrimination in Germany, at the EU level and the United Nations. After the elections in Poland, the Polish Government has changed its position on the directive, and made a very clear statement in the EPSCO on the 20 June that they want to adopt the directive as soon as possible, as did many other Member States. In the final weeks of the Belgian Presidency, the German Government has a unique opportunity to put the commitment of its coalition agreement finally into action.  

We therefore urge your Government to lift the general reservation as soon as possible.

Yours sincerely,

ILGA-Europe

European Network Against Racism

European Disability Forum Age Platform Europe

ILGA-Europe, TGEU, OII Europe, IGLYO and EL*C jointly welcome the inclusion of SOGIGESC grounds in new EU Directive on minimum standards for equality bodies

On 7 May 2024, two new directives on minimum standards for equality bodies were officially adopted by the EU. One of the directives includes in its recitals and articles the grounds of gender expression, gender identity and sex characteristics in addition to sexual orientation. This marks the first time sex characteristics have been mentioned explicitly in an EU directive, and the second time gender identity and gender expression have been mentioned in an EU directive.¹ This is an important milestone for the protection of LGBTI people in EU legislation, and follows two years of joint advocacy on these directives by OII Europe, TGEU, ILGA-Europe, EL*C and IGLYO.

The two new directives amend existing EU laws in order to add provisions to strengthen the role and independence of equality bodies in the EU, setting minimum standards regarding their mandates, tasks, independence, structure, powers, accessibility and resources. Both directives are subject to EU primary law including the Treaties and the Charter of Fundamental Rights (CFR). Article 19 TFEU and Article 21 CFR include sexual orientation in the list of protected grounds against discrimination, therefore both new directives cover the grounds of sexual orientation as regards the mandates of equality bodies in the EU.

However, we need to go beyond this to properly address the reality of discrimination. Limiting equality bodies’ mandates to working only on the grounds of discrimination explicitly named in the EU treaties means that many causes of discrimination are left out, remaining unrecognised and therefore not properly addressed. In the case of LGBTI people, who face discrimination based on their sexual orientation, gender identity, gender expression or sex characteristics (or a combination of these grounds), not including gender identity, gender expression and sex characteristics in the mandates of equality bodies means that equality bodies cannot properly address discrimination faced by trans and intersex people. In a time when discrimination against LGBTI people is on the rise, this is a welcome move.

Together, OII Europe, TGEU, ILGA-Europe, EL*C and IGLYO advocated for references to the grounds of gender expression, gender identity and sex characteristics to be included in both new directives.

Directive 2022/0401 amends directives in the field of equal treatment between persons irrespective of their racial or ethnic origin, equal treatment in matters of employment and occupation between persons irrespective of their religion or belief, disability, age or sexual orientation, equal treatment between women and men in matters of social security and the access to and supply of goods and services. This new directive required unanimous agreement in the EU Council. Despite references to gender identity, gender expression and sex characteristics being included in the text proposed by the European Parliament, due to opposition from a small number of EU countries, these references did not make it into the final text.

However, for the second Directive, the references did make it into the final agreed text. Directive 2022/0400 amends existing Directives 2006/54/EC and 2010/41/EU which cover the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including self-employment. This directive required qualified majority voting in the EU Council. Therefore, the references to the grounds of gender identity, gender expression and sex characteristics were included in the adopted text, in the context of the definition of a victim of discrimination:

Recital 23

“In addition to prevention, a central task of equality bodies is to provide assistance to victims of discrimination. Victims should be understood to encompass all persons who consider that they have experienced discrimination as referred to in Article 4 of Directive 2006/54/EC or in Article 4 of Directive 2010/41/EU, irrespective, for example, of their socio-economic status, political opinion, age, health, nationality, residence status, language, colour, level of literacy, gender, gender identity, gender expression or sex characteristics.”

Article 6

“Member States shall ensure that equality bodies are able to provide assistance to victims as set out in paragraphs 2 to 4. For the purposes of this Directive, ‘victims’ mean all persons, irrespective, for example, of their socio-economic status, political opinion, age, health, nationality, residence status, language, colour, level of literacy, gender, gender identity, gender expression or sex characteristics, who consider that they have experienced discrimination within the meaning of Article 4 of Directive 2006/54/EC or Article 4 of Directive 2010/41/EU.”

What’s next?

This achievement marks a milestone in the recognition of trans and intersex people in EU legislation and policy-making, and will contribute to further protection against discrimination for LGBTI people by equality bodies across the EU. We also extend our thanks to Equinet, the European Network of Equality Bodies, which led a successful campaign on these directives and supported our calls for the inclusion of the grounds of gender identity, gender expression and sex characteristics, based on the reality of discrimination against LGBTI people in the EU, as well as existing EU policy, legislation, and decisions of the EU Court of Justice. We will now work together with relevant authorities on the effective transposition of the equality bodies directives and we will continue to advocate for more comprehensive protection for LGBTI people in EU policy and legislation.

1. The first mention was in the Victims’ Rights Directive, 2012/29 ↩︎

The Court of Justice of the European Union held a significant hearing today concerning legal gender recognition for trans people in Hungary

Today, the Court of Justice of the European Union (CJEU) heard the case Deldits (C-247/23), which involves a trans refugee in Hungary who has been denied legal gender recognition (LGR) since 2021. Represented by Háttér Society and the Hungarian Helsinki Committee, the complainant, who was granted refugee status Hungary in 2014, has sought judicial review under Article 16 of the EU’s General Data Protection Regulation (GDPR).

This case raises crucial questions for the CJEU: whether GDPR mandates the rectification of personal data, including gender marker, upon request; what evidence is necessary to support such requests; and whether medical or surgical interventions must be proven.

In addition to the European Commission and advocacy groups, the governments of Hungary, France, Spain and the Netherlands participated in today’s hearing, highlighting its broader implications for LGR in Hungary.

The Budapest-Capital Regional Court’s referral to the CJEU marks a pivotal moment in the ongoing battle for trans rights in Hungary. Despite the 2018 Constitutional Court decision and the 2020 European Court of Human Rights judgement affirming these rights, the Hungarian legislature has yet to implement necessary changes. LGR for both refugees and Hungarian citizens has been banned since 2020.

According to Katrin Hugendubel, Advocacy Director at ILGA-Europe: In its final judgment, the CJEU will have the opportunity to address the discrimination faced by trans EU citizens when a gender marker that does not correspond to their gender identity is recorded in the national registrars. The case is of the utmost importance to protect the rights of trans citizens in Hungary and across the EU, notably in the context of the Hungarian ban on legal gender recognition.

The opinion of the Advocate General is expected on 12 September 2024. The CJEU’s decision is anticipated later in the autumn, and it holds significant potential to influence the legal framework for trans rights within Hungary and the broader EU.

ILGA-Europe, alongside Transgender Europe (TGEU), are providing support to Háttér Society in this case.

Read the press release by Háttér Society here.

In the dynamic world of human rights advocacy, working together is essential. Last week marked a significant event of mass collaboration – the release of the 16th annual Rainbow Map of LGBTI human rights in Europe

The purpose of the Rainbow Map

At its core, the Rainbow Map is a tool of empowerment, designed to equip advocates with the knowledge needed to achieve change. With categories ranging from equality and non-discrimination to asylum rights, this resource serves as a compass, illuminating the path towards progress. Armed with the Rainbow Map, activists can leverage its insights to hold governments accountable, showcasing comparative data to drive policy reform and legislative action.

Stories of struggle and triumph

Behind every data point lies a narrative – a story of struggle and triumph, of setbacks and victories. The Rainbow Map is not merely a collection of statistics; it is a testament to the activism of LGBTI people across Europe for real change. Through the qualitative lens of ILGA-Europe’s Annual Review, the numbers come to life, providing context and depth to each country’s journey towards equality. When browsing each country in the Rainbow Map, you will find the Annual Review for the country under a number of themes.

The power of collaboration

The journey to publish the Rainbow Map each year is not a tale of an organisation in Brussels working alone. It’s a true example collective determination, and a display of LGBTI and allied teamwork across Europe, showcasing the strength of unity during tough times. More than 250 people, including activists, lawyers, and policymakers, contributed their expertise and passion to this project, which has become a go-to for anyone wanting to understand the development of LGBTI rights in Europe over the past 16 years. Their dedication and commitment to justice is woven into the very fabric of the Rainbow Map. This year, we made substantial progress by revamping the Rainbow Map’s interface and seamlessly integrating it with our ILGA-Europe website. This revitalisation reflects our commitment to continuous improvement, ensuring that users have access to the most user-friendly and informative platform possible.

Honouring the faces behind the numbers

As we continue our journey towards equality, equipped with the Map, let us remember the people behind the data – the activists who fight the good fight, the lawyers who litigate, the policymakers who advocate. Let’s honour their resilience, courage, and unwavering belief in a better tomorrow. As we navigate the complex landscape of LGBTI rights, let the Rainbow Map be our guidance, illuminating the path towards new successes.

ILGA-Europe, The International Commission of Jurists and the organisation Intersex International Europe jointly file a third-party intervention before the Grand Chamber of the European Court of Human Rights in a case concerning the South African athlete Caster Semenya

In July 2023, in its judgment in the case of Semenya v. Switzerland, the Chamber of the third section of the European Court of Human Rights (ECtHR) had ruled in favour of Caster Semenya, a South African Olympic runner, finding that Switzerland had violated her right to freedom from discrimination, taken together with her rights to respect for private life and to an effective remedy had been violated.

The case had arisen from a complaint brought to the Strasbourg Court against witzerland by Caster Semenya, a South African international-level athlete specializing in middle-distance races (800 to 3000 metres).  She had refused to comply with the “Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development – the DSD Regulations)” of the International Association of Athletics Federations (IAAF, now World Athletics), requiring her to reduce her natural testosterone level through hormone treatment in order to be allowed to participate in international competitions in the women’s category, since the side-effects of such treatment were not well understood.  Her failure to comply with the DSD Regulations resulted in her being barred from participation in international competitions.

Notwithstanding the July 2023 ECtHR judgment, Semenya and many other women athletes continue to be banned from competing in sports under World Athletics regulations. Later that year, the Swiss government filed a referral request to the Grand Chamber of the ECtHR for a final ruling on Semenya’s case.  A hearing in the case will take place in Strasbourg on 15 May 2024.

Kaajal Ramjathan-Keogh, Director of ICJ’s Africa Programme, said, “The Grand Chamber of the ECtHR will have the opportunity to consider Semenya’s complaint of human rights violations and the broader question of discrimination against athletes with hyperandrogenism, a condition characterized by higher than usual levels of testosterone, a hormone that increases muscle mass and strength. Under World Athletics regulations women like Semenya, who have naturally occurring higher testosterone levels associated with Differences of Sex Development (DSD), are barred from competing – unless they subject themselves to medically unnecessary interventions to reduce their testosterone levels and conform to an arbitrary and subjective standard of femininity.”

Organisation Intersex International Europe (OII Europe), ILGA-Europe (the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association) and the International Commission of Jurists (ICJ) filed a joint submission before the Grand Chamber of the European Court of Human Rights to assist the Grand Chamber in its determination of the case. The joint submission focuses on the place of intersex athletes in competitive sports and sporting fairness for all athletes. The submission analyses World Athletics’ constantly evolving rules, which – due to their strict prerequisites – effectively limit and/or prevent the participation of intersex athletes in international sporting competitions.  Even though new regulations were issued in 2021 and again in 2023, the submission deals in chief with the 2018 regulations as these are the ones being contested before the Court.

The submission focuses on the following issues:

•          The DSD Regulations discriminate against intersex athletes on the grounds of sex within the meaning of Article 14 of the European Convention of Human Rights (ECHR), as well as on the grounds of sex characteristics – in particular, genetic characteristics – which, in turn, fall within the protective scope of the same provision. The joint interveners have provided the Grand Chamber with a comparison between the 10 December 2021 Regulations, 31 March 2023 Regulations, and the 2018 Regulations to show that World Athletics is continually restricting access to sport for intersex and other athletes without “particularly weighty and convincing reasons” by way of justification. 

•          The 2018 DSD Regulations were less restrictive than the subsequently issued rules as they only limited participation in the following races: 400m races; 400m hurdles races; 800m races; 1500m races; one-mile races; and all other Track Events over distances between 400m and one mile, whether run alone or as part of a relay event or a Combined Event. The 2018 Regulations were nevertheless discriminatory to intersex athletes.

•          The submission expands on the wider detrimental effect of the DSD Regulations on the human rights of youth, children and intersex athletes.

•          The submission makes brief remarks on the right of access to justice and the right to an effective remedy under international law and standards, including Articles 6 and 13 of the European Convention on Human Rights.

Dan Christian Ghattas, Executive Director of OII Europe, said, “The submission sets out that the 2018 DSD Regulations fall foul on sex characteristics as a ground for discrimination without ‘particularly weighty and convincing reasons’ by way of justification and, as a result, impermissibly discriminate against intersex athletes under Article 14 of the European Convention on Human Rights. In particular, the joint submission underscores the significance of the findings in the Chamber judgment establishing sex characteristics as a prohibited ground under Article 14 of the Convention.” 

According to Katrin Hugendubel, Advocacy Director at ILGA-Europe, “Despite claims from the World Athletics that the DSD Regulations will not prevent any women from competing in athletics, they have the effect of forcing some women with variations of sex characteristics to choose between undergoing medically unnecessary interventions to lower their testosterone levels or be precluded from participating in international sport. This is yet another example of discrimination faced by intersex athletes who are exposed to invasive medical examinations and interventions that have a dramatic impact on their ability to participate in competitions, and which may have life-long physical and psychological consequences.”

Background to the case

The 2019 regulations are the ones that are in question in the case, despite regulations also being issued in 2021 and 2023. Sports governing bodies argued that the 2019 regulations broke from the past 50 years of sex testing women athletes, a practice that was humiliating, degrading and discriminatory. However, the revised 2019 regulations still subjected women athletes to sex eligibility criteria that retain these negative, rights-abusing consequences.

Semenya unsuccessfully challenged the 2018 regulations in the Court of Arbitration for Sport based in Lausanne in April 2019. She then appealed to Switzerland’s highest court, the Federal Tribunal, which dismissed the case on grounds that sports regulations violating women’s rights cannot be struck down as inconsistent with Swiss public policy. They added that the DSD regulations were an appropriate, necessary, and proportionate means of achieving the legitimate aims of fairness in sport.

In its July 2023 judgment, the third section of the ECtHR found that Semenya had not been afforded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively, especially since her complaints concerned substantiated and credible claims of discrimination as a result of her increased testosterone level caused by differences of sex development (DSD). It followed, particularly with regard to the high personal stakes involved for Semenya – namely, participating in athletics competitions at the international level, and therefore practising her profession – that Switzerland had overstepped the narrow margin of appreciation afforded to it in the present case, which concerned discrimination on the grounds of sex and sexual characteristics requiring “very weighty reasons” by way of justification. The high stakes of the case for Semenya and the narrow margin of appreciation afforded to Switzerland should have led to a thorough institutional and procedural review, but Semenya had not been able to obtain such a review. The Court also found that the domestic remedies available to the applicant could not be considered effective in the circumstances of the case.

The 2018 DSD Regulations require a blood testosterone level below five nmol/L for a continuous period of at least six months. The 2023 DSD Regulations, in turn, impose an even lower threshold with respect to the concentration of testosterone in the serum of relevant athletes, namely, below two point five nmo/L. In comparison with the 2018 DSD Regulations, the 2023 DSD Regulations betray an even more misogynistic nature and are a fortiori discriminatory to athletes with variations of sex characteristics. Moreover, the 2023 DSD Regulations’ restricted testosterone level does not just affect intersex persons, but also endosex (i.e., non-intersex) women in general.

In November 2023, Switzerland successfully requested a referral of the case to the Grand Chamber of the ECtHR on the grounds inter alia that Switzerland lacked jurisdiction; that the case did not involve the application of Swiss law; that the Chamber’s ruling would require a fairly fundamental review of the system of judicial review of international arbitral awards requiring alignment with the judicial review of judgments handed down by national courts and this would run counter to the aims of international arbitration and would significantly reduce the attractiveness of this method of dispute resolution.

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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.

Today, the Council of the EU officially adopted the EU Directive on combating violence against women and domestic violence

As 13 civil society organisations¹ which advocate for human rights, gender equality, and the right for all to live free from violence, we welcome this first ever binding EU legislation on this issue as a groundbreaking step.

The Directive adopts a holistic approach to combat violence against women² and domestic violence, incorporating measures relating to prevention, protection, support for victims, access to justice and prosecution of perpetrators. This achievement is the result of long-term advocacy by feminist movements and Members of the European Parliament championing the European Commission’s ambitious proposal. We extend our gratitude to everyone involved in making this Directive as strong as possible.

We applaud the fact that the Directive recognizes the perpetration of female genital mutilation, forced marriage and certain forms of online violence as crimes. Unfortunately, other forms of violence were ultimately not criminalised, including intersex genital mutilation and forced sterilisation. We deeply regret that some Member States managed to derail the unprecedented opportunity to criminalise rape with a consent-based definition at the EU level. Sexual violence against women is endemic across the EU, with widespread impunity. Consent-based definitions of rape allow for all cases of rape to be included and strengthen protection and access to justice for victims of rape. We continue to call on all Member States who have not yet done so, to move towards adopting consent-based laws.

Crucially, the Directive will require Member States to do more to prevent rape, by raising public awareness of the fact that sex without consent is a crime, through awareness raising programmes and educational materials. We encourage Member States to embrace the comprehensive prevention approach outlined in the Directive, in particular primary prevention initiatives, and to provide mandatory comprehensive sexuality education, which includes consent education and challenges harmful gender norms.

The Directive further guarantees comprehensive support to victims of violence against women and girls and domestic violence and access to both general and specialist support services, shelters, support for child victims, as well as access to comprehensive medical care including sexual and reproductive health services. This is the first time that EU law imposes explicit obligations on Member States to provide access to this essential medical care for victims of sexual violence. Member States will also have to provide training for professionals likely to come into contact with victims, on how to provide this support.

The Directive recognises that victims of violence against women and domestic violence who experience intersectional discrimination are at a heightened risk of violence, and obliges Member States to meet their specific needs. Targeting a public figure, a human rights defender, or someone for their personal characteristics will constitute an aggravating circumstance. In the implementation of the Directive, Member States must ensure that all victims and survivors of gender-based violence are protected, no matter their sexual orientation, gender identity, gender expression or sex characteristics.

However, EU lawmakers yet again silenced women impacted by EU migration policies. The only concrete step forward for migrant women is that the text requires Member States to make shelters available to all women experiencing domestic abuse, regardless of their residence status. Nonetheless we condemn that the final text does not retain provisions on protecting undocumented women’s personal data from being transmitted to immigration authorities (neither in the context of accessing shelters, nor in terms of accessing justice). Member States must ensure that women are not deterred from going to the police because of their residence status, by including access to safe reporting in the ongoing revision of the Victims’ Rights Directive.

We call on the European Commission to provide guidelines and training to Member States, based on international standards and in consultation with civil society organisations. We urge Member States to fully implement the Directive as soon as possible. Recalling that the Directive sets minimum standards, we call on Member States to go beyond these and to realise the highest standards across the EU.

We call on the European Commission to review the Directive in the next five years and to work towards comprehensive and inclusive measures to address all forms of sexual and gender-based violence without discrimination.

We, together with our members across Europe, are committed to providing our expertise, and look forward to supporting a strong implementation of the Directive, to progress towards a Europe where everyone is safe from gender-based violence.

1. Amnesty International, Center for Reproductive Rights, EuroCentralAsian Lesbian* Community (EL*C), End FGM European Network, European Sex Workers’ Rights Alliance (ESWA), Human Rights Watch, ILGA-Europe (The European region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association), International Planned Parenthood Federation European Network (IPPF EN), La Strada International, Organisation Intersex International Europe (OII Europe), Platform for International Cooperation on Undocumented Migrants (PICUM), TGEU (Trans Europe and Central Asia), Women Against Violence Europe (WAVE).
   Our organisations work on a diverse range of women’s rights issues. In the drafting of this document, we have been led by the expertise of women’s rights organisations and women human rights defenders from communities most impacted by the specific forms of violence described in each section. Our commitment to the text below represents our coming together as a collective with shared values, even though not every organisation has its own policy or programme of work dedicated to each issue. ↩︎
2. Throughout this statement, the term “women” should be understood as including “women and girls”, as in the definition of “violence against women” proposed by the European Commission in the Directive, which encompasses “violence directed against a woman or a girl”.  ↩︎

ILGA-Europe stands with Kazakhstan’s LGBTI Community amid Russia-style attempts to criminalise LGBTI people and their human rights

ILGA-Europe express solidarity with the LGBTI community in Kazakhstan as they face legislative proposals which will worsen the already exacerbated situation of the LGBTI community in the country. Two concerning anti-LGBTI legislative initiatives that were voiced last week by two separate groups of members of Kazakhstan’s Parliament threaten the fundamental rights and freedoms of LGBTI individuals in Kazakhstan.

The initiative by the Parliament members Aimagambetov and Ashimzhanov (both from Amanat Party) attempt to introduce a legal prohibition for mass media to write about “non-traditional sexual orientation”. In the same week, Parliament members Zhanbyrshin and Musabaev (also from Amanat party) introduced a draft amendment to include so-called “propaganda of non-traditional sexual relations” in the “discord incitement” provision 174 of the Criminal Code and to prohibit peaceful assemblies on the same ground.

Such initiatives aim to divert attention from pressing issues like natural disasters that the entire northern and western Kazakhstan has been suffering for the past few weeks, with so many villages and towns affected, and over 100,000 people relocated, as well as the nation’s worsening socioeconomic situation and rising public call for the elimination of domestic violence. We call on the Kazakhstan Government to not arbitrarily target the LGBTI community and violating the principles of non-discrimination enshrined in the Constitution of Kazakhstan.

In the past couple of weeks, according to some media reports and from information spreading in messenger chats, the Law Enforcement of Astana have been illegally raiding nightclubs, specifically targeting LGBTI people. This is demonstrative of how such anti-LGBTI discourse and initiatives directly reflect on the safety of LGBTI people.

Kazakhstan’s current legislation does not protect LGBTI people from bias-motivated crimes, places discriminatory and humiliating barriers for legal gender recognition, bans same sex marriage and adoption by LGBTI persons, among many other pressing issues. The existing provisions restricting human rights of LGBTI people and any further attempts to do so contradict Kazakhstan’s international legal commitments, including the implementation of Recommendation No. 139.48 within the Kazakhstan’s previous reporting under Universal Periodic Review cycle, which calls for creating an enabling environment for LGBTI activist groups and human rights defenders.

We are also deeply concerned about the implications of amending Article 14 of the Law on Peaceful Assemblies, which would restrict the right to peaceful assembly for the LGBTI community and other civil society actors. This move further marginalises an already vulnerable community and threatens the democratic principles Kazakhstan aspires to uphold.

ILGA-Europe denounces any attempts to introduce discriminatory legislation that targets the LGBTI community. The LGBTI community in Kazakhstan deserves legal protection and recognition without discrimination.

We urge the Parliament to refrain from any future attempts of adopting anti-LGBTI legislation, and start to engage in meaningful dialogue with civil society and expert organisations to ensure the protection of LGBTI rights. We call on Kazakhstan to uphold its constitutional duty to protect the rights of all citizens, including on the grounds of sexual orientation or gender identity.

We call upon the International Partners of Kazakhstan to join us in reinforcing the dialogue on asking the Government of Kazakhstan to work towards improving the situation with human rights of LGBTI people.

ILGA-Europe stand in solidarity with the LGBTI community in Kazakhstan and reaffirm our commitment to supporting their struggle for equality, dignity, and respect. We encourage individuals and organisations to join us in speaking out against discrimination and advocating for the rights of all LGBTI individuals in Kazakhstan.

BACKGROUND

On February 11, the Ministry of Information of Kazakhstan blocked the selftanu.kz website which aimed at raising awareness of LGBTI teenagers about their rights and providing them with information on healthcare and reproductive rights, among others. The Ministry justified its decision that the information on the website violates the norm of the legislation on preventing dissemination of information that would cause harm to the health and development of children.

On February 23, Kazakhstan’s President Tokaev signed the law preventing LGBTI people from mentoring orphans. When asked how the authorities would identify LGBTI identity of prospective mentors, the Vice-Minister of Education of Kazakhstan Natalia Zhumadildaeva stated that LGBTI people would be prevented from adopting and mentoring orphans according to these provisions. She claimed that the Ministry had developed a special psychological test for such purposes. Again these are non-scientific and inhumane approaches that contradict common sense and go against Kazakhstan’s national and international commitments to uphold human rights and non-discrimination.

On March 5 the authorities of the Almaty Mayor’s office responded to questions why it had prohibited the women’s inclusive rally dedicated to International Women’s Day marked on March 8. Almaty authorities recalled that over the past few years, representatives of feminist movements have already held authorised rallies on March 8. But officials were unhappy that during the protests the organisers and participants “repeatedly deviated from the stated topic.” They claimed that there had been numerous requests from different citizens not to allow the women’s rally, because reportedly “In appeals to them and in messages on social networks, the organisers of the rally, under the guise of the fight for women’s rights, actually promoted non-traditional values that were alien to Kazakh society such as same-sex relationships, marriages, LGBT symbols and others. And, in order to ensure the safety of participants in peaceful assemblies, in order to avoid violation of the rights of city residents and other persons, and to prevent violation of public safety by the Almaty authorities, a decision was made not to approve the rally of feminist organisations”.

On April 5, within the discussions of amendments to the Law on Mass Media, the first initiative was put forward by Parliament Members Askhat Aimagambetov and Zhanarbek Ashimzhanov (both from Amanat Party) to include provisions that would ban Mass Media from mentioning anything about LGBTI. This was followed by another more restrictive initiative on April 10 by Parliament Members Edil Zhambyrshin and Samat Musabaev (also from Amanat Party). In particular, they proposed an amendment to Article 174 of the Criminal Code (“Inciting social, national, tribal, racial, class or religious hatred”) to include criminal charges for those who break the law and publicly mention about LGBTI. Although, both provisions did not make it to the second reading of the bill and when it was passed to the upper Chamber of the Parliament. However, LGBTI activists fear these amendments may resurface as the initiators made it clear they would not withdraw their attempts to follow through.

For the past couple of weeks, according to media reports and information shared on messenger chats, law enforcement in Astana has been illegally raiding night clubs and specifically targeting LGBTI people under the false pretence of preventing illegal proliferation of drugs. Reportedly the police are also raiding private parties organised in apartments and houses, as well as nightclubs that are not specifically LGBTI-themed.

Last year, Ukraine became a candidate country to join the European Union. But the country’s lack of LGBTI rights threatens to hinder the process

As Ukraine charts its course towards European Union enlargement, it’s vital to focus on improving LGBTI rights in the country. While there’s notable support from society – with 72% of Ukrainians now supporting equal rights for LGBT people – and the international community, hurdles within the Ukrainian Parliament, the Verkhovna Rada, and the Ministry of Internal Affairs threaten to impede progress.

Despite significant strides, resistance persists within the corridors of power. This resistance not only undermines Ukraine’s commitment to EU integration but also poses a threat to the rights and freedoms of LGBTI people.

The leverage of the EU accession process cannot be overstated. The European institutions and EU member states have strength and influence to achieve change. By actively engaging with Ukrainian counterparts and lending their support to legislative initiatives aimed at safeguarding the rights of all individuals, the European Commission and Parliament, but also EU governments play a crucial role in Ukraine’s journey towards EU integration.

Recognition of same-sex partnerships

Recently, members of the European Parliament’s LGBTI Intergroup sent a letter to President Volodymyr Zelensky, showing their support for two important draft laws in Ukraine. These laws, if passed, could make a big difference for LGBTI people in Ukraine and bring the country closer to joining the EU.

One of these laws, Draft Law 9103 is the Legal Recognition of Same-Sex Partnerships. Beyond its legal implications, this would symbolise a monumental shift towards equality and non-discrimination, echoing the values espoused by the EU. If passed, it would provide legal protections and rights to same-sex couples, similar to those enjoyed by heterosexual couples, such as inheritance rights, medical decision-making authority, and financial protections – many of these rights reaching a new significance since the onset of the war in Ukraine.

Protection against hate crimes

Another crucial law mentioned in the letter and awaiting the decision of the Ukrainian Parliament, Draft Law 5488, is the Protection Against Hate Crimes – including those motivated by sexual orientation or gender identity. If enacted, it would provide legal protections to LGBTI people and other vulnerable groups who are targeted for violence or discrimination based on their identity.

In its judgment of 11 April 2024 in Karter v. Ukraine, the European Court of Human Rights ruled that Ukraine violated Article 3 (prohibition of inhuman or degrading treatment) in conjunction with Article 14 (prohibition of discrimination) in view of the ineffective investigation of two verbal and physical attacks of the applicant, a gay man, involving homophobic slurs. Further to the first attack, the authorities did not follow up on the applicants’ hate crime allegations and initially classified it as a robbery. The Court noted that the criminal-law classification the national authorities had chosen for the second attack as falling under the ordinary provisions of criminal law undermined their ability to uncover the alleged homophobic motive behind the attack.

The Court specifically considered the lack of explicit recognition of attacks motivated by sexual orientation as an aggravating circumstance in domestic criminal law in general and under Article 161 of the Criminal Code in particular and the difficulty that the absence of such recognition in domestic criminal law causes in the effective investigation of homophobia-motivated attacks. It considers that domestic authorities should “conduct the investigation taking all reasonable steps with the aim of unmasking the role of possible homophobic motives for the attack” as, otherwise, “prejudice‑motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence to or even connivance with hate crimes.”

This court ruling serves as another reason for Ukraine to prioritize and enact legislation aimed at addressing the issues highlighted, further emphasizing the urgency of legal reform in safeguarding the rights of LGBTI individuals. As Ukraine moves forward on its path towards European Union enlargement, the support of EU institutions and politicians is crucial in achieving meaningful change and upholding the principles of equality and non-discrimination. By enacting these laws, Ukraine not only strengthens its position on the path towards EU integration but also reinforces its commitment to human rights.

In order to focus our strategic litigation efforts across Europe to fully protect and advance LGBTI rights, with this inventory ILGA-Europe wants to support members and partners across the region to identify trends and gaps in protection at the European level, which can commonly be tackled through litigation. The inventory can further strengthen cooperation and help guide our work and efforts by others in bringing forward and supporting strategic cases.

This inventory and continuous assessment of the European landscape informs ILGA-Europe’s ongoing engagement in strategic litigation through identification and support of strategic opportunities.

This inventory covers relevant SOGIESC cases from 2010 up until December 2023.

We welcome and celebrate with local activists the news that the Greek parliament has adopted an historic bill introducing marriage equality, granting marriage and adoption rights to same-sex couples, as well as fully recognising marriages that took place in other countries, and family ties of children who were born abroad to same-sex parents.

ILGA-Europe and NELFA welcome the news from yesterday, 15 February 2024, that the Greek Parliament  adopted a bill introducing marriage equality.

This vote reflects the trend in Greek and European societies towards increasing equality for same-sex couples. The new marriage equality law will grant marriage and adoption rights to same-sex couples, as well as fully recognise all marriages and family ties of children who were born abroad to same-sex parents, and comes as a result of clear political leadership from the current Greek government.

The adoption of this law comes at a time when public acceptance of LGBTI people is on the rise in Greece and across Europe. In fact, an EU survey conducted in 2023 shows that public opinion in Greece as regards same-sex marriage is at an all-time high, marking also the largest increase in approval across all of the EU since the last iteration of the survey in 2019.

The law also follows a number of important legislative steps taken by the current Greek government to improve the access of LGBTI people to their rights and dignity, such as becoming the fifth European country to ban intersex genital mutilation (IGM) in July 2023, lifting the ban on men who have sex with men to donate blood in January 2023 and banning so-called ‘conversion practices’ against LGBTI minors and ‘vulnerable’ LGBTI people in May 2023.

Despite this important step towards equality for LGBTI families, the law does not remove all discrimination as:

• The law does not allow for access to in-vitro fertilisation (IVF) for same-sex couples of two women, meaning that the current discriminatory practice of only single women unable to conceive a child being able to access IVF in a Greek clinic, persists. This should also be made possible for same-sex couples made of two women, who also cannot conceive a child otherwise. Of the 19 EU countries which allow access to IVF for single women, the vast majority of them also allow access to IVF for female couples, coming to a total of 15. This reflects trends across the EU to ensure more equitable access to family and reproductive rights.
• Currently in Greece, altruistic surrogacy is available to opposite-sex couples only, creating a discrimination on the basis of sexual orientation i.e. gay men do not have equal access to the ability to have a child and form a family. The new law has not addressed this.

Greece’s adoption of marriage equality is a hugely important step for the recognition of equality of all couples, and a first step in achieving equality for all parents and people who wish to form a family. We encourage the Greek government to look at the remaining gaps in legislation and to propose measures to bring full equality for rainbow families in Greece.

Join statement by:

• ILGA-Europe
• NELFA – Network of European LGBTIQ* Families Associations

The European Court of Human Rights has issued a judgement against Poland in a case taken by five same-sex couples in the country, seeking to have their relationships legally protected.

Today, in the case of Przybyszewska and Others v. Poland, the European Court of Human Rights (ECHR) ruled that the Polish State is in violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, having failed to comply with its duty to ensure that the applicants had a specific legal framework providing for the recognition and protection of their same-sex unions.

That failure had resulted in the applicants’ inability to regulate fundamental aspects of their lives and amounted to a breach of their right to respect for their private and family life.

The case was taken to the ECHR in 2017 and 2018 by five same-sex couples in stable relationships who live in the Polish cities of Lodz, Cracow and Warsaw.

Since marriage is the only way to formalise a relationship in Poland, the couples independently decided to marry a few years ago and approached their local civil registry offices in order to carry out the necessary formalities to get married. The authorities refused to marry them, as under Polish law marriage can only be between a man and a woman.

One of the Polish Government’s arguments was that the traditional concept of marriage as a union of a man and a woman constituted Poland’s social and legal heritage, but the Court noted that the present case did not concern same-sex marriage. Member States, it said, are able to determine the exact nature of the legal regime to be made available to same-sex couples, but have significantly less discretion when it comes down to legal recognition and protection in general.

The Court therefore concluded that the Polish legal framework could not be said to provide for the core needs of recognition and protection of same-sex couples in a stable and committed relationship. Same-sex partners are unable to regulate fundamental aspects of their life together, such as those concerning property, maintenance, taxation, and inheritance. Also, in the majority of situations, their relationship holds no weight in dealings with the judicial or administrative authorities.

The Court took note of the applicants’ and third-party interveners’ submissions indicating the increasingly hostile and homophobic attitudes towards sexual minorities displayed by high-ranking politicians from the then ruling party in Poland, including resolutions “counteracting LGBT ideology” passed by some local government bodies in Poland. Hateful statements had also apparently been made by one of the current judges of the Constitutional Court about the LGBTI community.

The case was supported by the Coalition for Civil Unions and Marriage Equality, which includes the NGO’s: Love Does Not Exclude, the Campaign Against Homophobia, the Polish Society for Anti-Discrimination Law, and the Helsinki Foundation for Human Rights.

According to coordinator for the Coalition, attorney Paweł Knut: “As of today, we start living in a new reality in which the roles have reversed. Same-sex couples no longer have to ask to be recognised in court or in an office. Thanks to the Court’s verdict, it is the state that has to start justifying why it has not yet put proper legal protection in place.”

ILGA-Europe were one of nine groups who intervened in the case. According to our Head of Litigation, Arpi Avetisyan: “Today’s judgment from the European Court is a crucial stepping stone in ensuring the rights of same-sex couples in Poland are duly recognised and protected.  No more ‘if’s’ and ‘but’s’ can justify delays in putting in place a framework for legal recognition of rainbow families.”

On Monday this week, Donald Tusk secured the support of the Polish parliament to head a new government, bringing to an end eight years of right wing government under the nationalist Law and Justice (PiS) party.

Mirka Makuchowska of the Polish LGBTI NGO, Campaign Against Homophobia has called on the new prime minister to meet with NGO’s in the light of the ruling. “After eight years of humiliation, a campaign of hatred against LGBT+ people by the government and the state apparatus, a face-to-face meeting with the Prime Minister is badly needed, not least so that Polish women and men can see that there is no longer a better and worse class of citizens, only one nation that we, LGBT+ people, are a part of,” she said.

Welcoming the judgement, one of the litigant couples, Michał and Wojciech, said: “We are hopeful that we may live to see the moment when the state finally acknowledges our 20-year relationship. This is important to us for practical reasons – security in our daily lives – but also for symbolic reasons, so we can finally feel that the state treats us on an equal footing with other citizens. Of course, we hope that the ruling coalition will take the verdict seriously and quickly fulfil the promises they made during the election campaign.”

The Polish government must now report to the Council of Europe Committee of Ministers on the implementation of the judgment.

LGBTI activists from new EU enlargement countries, Ukraine, Moldova and Georgia have gathered in Brussels to call on EU representatives to live up to the promise that comes with the accession process

Today, LGBTI activists from Ukraine, Moldova and Georgia met with EU representatives in Brussels to explain serious challenges facing lesbian, gay, bisexual, transgender and intersex (LGBTI) people in their countries, and urge European institutions and Member States to live up to the hope they have given in granting all three countries prospects of becoming members of the EU.

In the wake of Russia’s invasion of Ukraine, the EU has made enlargement a priority in the eastern neighbourhood region, recently opening the path for Ukraine, Moldova and Georgia to join the EU. Ukraine and Moldova were granted candidate status by the EU Council in June 2022, and just last month the European Commission advised that Georgia should also receive candidate status at the upcoming December Council.

The prospect of joining the EU is an important motivation for governments to make reforms on advancement of rule of law and protection of fundamental rights. It is especially important in this context that the EU insists that the protection of LGBTI people’s human rights are a core part of those requirements, as governments are often falling behind the requirements. Recommendations from the EU regarding the human rights of LGBTI people are key tools supporting LGBTI organisations to engage with their governments and hold them accountable to the commitments made.

In all three countries hate crime and hate speech against LGBTI people remains a serious issue. While both Moldova and Georgia have legislation protecting against hate crime on the grounds of sexual orientation and gender identity, hate crimes are consistently not registered and prosecuted. Ukraine still needs to adopt such legislation, which is currently being debated in parliament. Despite the international obligations of these countries to provide a legal framework for the recognition of same-sex couples, none of them have adopted such legislation. The inequality this creates is particularly highlighted in Ukraine at this time, where the lack of rights of same-sex partners of soldiers wounded or killed are laid bare. International standards as regards legal gender recognition are that the procedure should be quick, transparent and accessible without abusive requirements. Currently all three countries fail to live up to this for different reasons.

Says Rina Rybalko from Gender Stream, Ukraine: “We believe that Ukraine being an EU candidate country shows bilateral willingness to cooperate and integrate, especially in terms of common values, human rights standards and opportunities. This is an important step towards strengthening democratic values and supporting civil society in Ukraine, where freedom, diversity and human rights are a priority.”

Leo Zbancă from GENDERDOC-M in Moldova says: ”The LGBTI community in Moldova faces risks due to growing anti-LGBTI narratives promoted by pro-Russian forces. We see Moldova’s move to join the EU as vital for protecting LGBTI rights and ensuring the dignity and safety of the community.”

According to Mariam Kvaratskhelia from Tbilisi Pride: “Georgia should be granted candidate status and should move further on the EU integration path without sacrificing LGBTI rights and equality, which is unfortunately what the government is currently doing.”

The accession process comes with hope in candidate countries that the prospect of EU membership will help secure a better life for LGBTI people through the implementation of EU law and standards. However, the road to EU accession can be long, and hope and ambition can turn into disillusionment and disengagement if reforms are not seen through and the efforts of people and governments are not supported and awarded by the EU.

According to Executive Co-director at ERA, Danijel Kalezić from Montenegro, which became a candidate country in 2010: “In the last 15 years in the Western Balkans, we saw how the EU enlargement process can highly contribute to the legal protection and advancement of human rights for LGBTI communities. Unfortunately, we have also seen how a lack of direct and visible political support from the EU to grassroots movements in crucial moments can result in providing a space for anti-democratic movements to stop progress achieved and push the backsliding that is currently ongoing in our region.”

The meetings between activists and EU representatives in Brussels this week were facilitated by ILGA-Europe, the largest umbrella organisation for the LGBTI movement in Europe. According to ILGA-Europe’s Advocacy Director, Katrin Hugendubel, “These meetings are essential because we need to ensure that all EU institutions engaged in the enlargement process understand what is at stake – the huge potential to work for better respect of LGBTI people’s human rights through the process, but also the big risk of backlash in case the EU is not following through the accession promises.

“We see in the Western Balkans after years of active engagement on advancing human rights and fulfilling accession conditions, people are now disillusioned and the influence and leverage of the EU is quickly diminishing. Tensions in the region are high and the influence of other global forces is very real and worrying. In Georgia, Moldova and Ukraine, people want to move towards the EU and democratic reforms are undertaken to do so. The EU needs to support these efforts and stand clear on its promise of accession.”

Today, November 20, we celebrate UN World Children’s Day, and feel compelled to draw attention to the recent developments in Italy where some children no longer have their parents recognised.

Earlier this year, Italy’s Minister of Interior of Meloni’s government announced that registrars should no longer register the children of same-sex couples. The government’s intimidation resulted in a series of administrative and legal attacks against LGBTIQ* families throughout the country. In Padua, at least 33 mothers of 37 children received notification that their child(ren)’s birth certificates, in which two women’s names appeared, were illegitimate. On Tuesday 14 November 2023, the first hearings possibly leading to the retroactive removal of the non-biological mothers’ names from their respective birth certificates, effectively erasing the legal motherhood of the non-biological mothers, took place before the Court of Padua. The public prosecutor’s office and the lawyer of the mothers in question, claim that removing one mother is unconstitutional.

In many cases, the deregistration comes after many years, and the children thus ‘lose’ one mother, and sometimes their family name, from one day to the other. The deregistration of a parent marks a clear breach of human rights, with significant negative impacts on the well-being and day-to-day lives of the parents and the children, and is clearly not in the best interests of the child.

These attacks are possible due to the fact that Italy lacks a national law ensuring recognition at birth or through the adoption of the children of same-sex couples. A few courageous mayors have in the past agreed to register the birth certificates of children with two mothers or transcribe the birth certificates of children with two fathers to ensure the children are not exposed to discrimination. The order to deregister one of the parents ultimately amounts to orphanage by decree, instigated by the prosecution and in line with the Meloni government’s clear stance of not recognising the parental rights of LGBTIQ* individuals.

This is a reminder that only legal protections such as adoption rights for same-sex couples can ensure that the fundamental rights and the best interest of all children to have their parents recognised are guaranteed.

These attacks on rainbow families are happening in the context of broader attacks on the LGBTIQ* community in Italy and their fundamental rights by the government. Similar to the guidelines to deregister parents, schools have been called upon to no longer accept the gender identity of trans children in education, and a draft law proposes to withdraw the possibility of seeking asylum based on prosecution based on sexual orientation and gender identity. LGBTIQ*-phobic hate speech, also from politicians, has been on the rise. The Meloni government is proposing to criminalise surrogacy arrangements made by Italian couples abroad, another move that might leave children without parents and thereby extremely vulnerable. 

The European Court of Human Rights clearly ruled that states need to establish a mechanism to allow for recognition of the parent–child relationship for non-genetic parents, such as through adoption, and that children should not be blamed for their parents’ decisions, including regarding conception. Children have an undeniable right to the protection of their private and family life. World Children’s Day serves as a reminder of our collective responsibility to ensure every child’s right to a stable and loving family environment. 

We condemn the recent attacks on rainbow families and urge the Italian government to reconsider the current anti-LGBTIQ* actions and decisions. All families need to be recognised and respected, without discrimination, in order to protect the best interest of the child and make sure they are not exposed to discrimination.

• NELFA – Network of European LGBTIQ* Families Associations
• Famiglie Arcobaleno, ItalyArcigay Nazionale, Italy
• ILGA-Europe
• EL*C – Eurocentralasian Lesbian* Community
• Društvo kulturno, informacijsko in svetovalno središče
• Legebitra, Slovenia
• Familles-arc-en-ciel/Regenbogenfamilien/famiglie_arcobaleno/famiglias_a’artg, Switzerland
• Sateenkaariperheet ry / Rainbow Families Association Finland 
• ILGA World

Every year since 2009, ILGA-Europe’s Rainbow Map has been ranking the 49 countries that make up Europe based on the legal and policy situations of LGBTI people.

While during this time there has been much movement at the top of the map, with Spain, Finland, Greece and Moldova making big jumps this year, the countries at the bottom have largely been the same since the very first map, namely Russia, Armenia, Turkey, and at the very bottom Azerbaijan.

In this episode of our podcast, The Frontline, we ask the question, if a country stays at the bottom of the Rainbow Map ranking, does it mean there’s no queer activism happening there? In countries where advocacy is not possible, and where daily life for LGBTI people is often extremely challenging, what’s happening in the work towards LGBTI rights and equality? And is this mostly invisible activism bringing about change for LGBTI people in the countries where it seems life is getting worse rather than better?

 

Alongside the Hungarian LGBT organisation Háttér Society, we have written to the President of the EU, Ursula von der Leyen, alerting her to the recent introduction of a new bill to further curtail the rights of transgender people in Hungary and of the intensification of the enforcement of the so-called “child protection law”. Read the letter below.

Dear President of the European Commission,

We are writing concerning the recent introduction of a new bill in the Hungarian Parliament to further curtail the rights of transgender people in Hungary and of the intensification of the enforcement of the so-called “child protection law”.

On July 13, 2023 two Members of Parliament from the FIDESZ and KDNP parties (both Ministers in the Cabinet of PM Orbán) submitted a new bill in Parliament^[1] to exclude trans women from accessing pension benefits available only for women. The bill was a direct response to a court case in which the Veszprém Regional Court ruled that a transgender woman who had her gender legally recognized in 2013 is to be entered into the pension registration system as a woman and shall be entitled to the “Women 40” pension benefit.^[2] The “Women 40” pension benefit was introduced in 2011, and allows women to retire after 40 years of employment even if they have not reached the general pension age. The court decision relied on a case of the Court of Justice of the European Union from 2006^[3] which found that a transgender women – who in accordance with the conditions laid down by national law – have undergone male-to-female gender reassignment are entitled to retire under the same conditions as women whose gender identity corresponds to their sex at birth. The European Court of Human Rights arrived at the same conclusion.^[4]

The new provisions proposed in the bill would apply to pending and repeat procedures as well. The explanatory memorandum of the bill is not only blatantly transphobic, but it distorts the text of the Fundamental Law to support the legislative agenda: it claims that the Fundamental Law mandates the registration of the sex at birth (or the so-called “biological sex”) only, whereas this rule is actually contained in the Act on Registry Procedures, not in the Fundamental law. It goes further, arguing that such solutions – i.e. that trans women enjoy the pension benefits reserved for women – would be unimaginable even in the most liberal countries.

The new legislation would apply only to a few trans women, since the Hungarian Parliament banned legal gender recognition for trans and intersex people in May 2020. A preliminary ruling was requested by a Hungarian judge on the compatibility of the resulting lack of legal gender recognition with GDPR, the court case is currently pending.^[5]

The Hungarian Parliament is again reacting with brute force to a court decision that goes against their ideological narrative: instead of simply complying with it, the Parliament overrides the judgment of a court by passing amendments that will close the path for similar future decisions. This reactionary law-making defeats the principle of separation powers, and seriously violates the rule of law and the standards deriving from it. Furthermore, the new provision applies to trans women who had their gender legally recognized years, even decades ago in any future pension procedures, as well as in any pension procedures currently pending or being repeated due to court decisions. This is retroactive legislation which also violates the rule of law. The bill would not only go against international human rights standards, but is a clear violation of the case law of the Court of Justice of the European Union.

We ask the Commission to call the attention of the Hungarian Government to the uncontested case law of the Court of Justice of the European Union, and warn the Hungarian Government that the adoption of such a legislation would have serious consequences with regards to the Commission’s assessment of the Government’s commitment to improve the rule of law in Hungary. We also ask the Commission to closely monitor the Parliamentary debate of the legislation, and in case the legislation is adopted, initiate promptly an infringement procedure.

We would also like to call your attention to the intensification of the enforcement of the so-called “child protection law”^[6] in recent months. Act no. LXXIX of 2021 amended several legislations with provisions to ban access of minors to content that “propagates or portrays divergence from self-identity corresponding to sex at birth, sex change or homosexuality”. Its implementing legislation^[7] was also amended to require that “products intended for children that (…) propagate or portray divergence from self-identity corresponding to sex at birth, sex change or homosexuality shall be only sold separately from other products only in closed packaging.” The Commission launched an infringement procedure concerning the legislation; the case is currently pending before the Court of Justice of the European Union.^[8]

In response to a freedom of information request, the Budapest Government County Office informed Háttér Society in February 2023 that there are 14 investigations pending regarding the enforcement of the above legislations.^[9] Based on media information, Libri-Bookline Zrt. was fined for 1 million HUF (c. 2,700 EUR), and on July 13, 2023 LÍRA Kiskereskedelmi Kft. was fined for 12 million HUF (c. 32,000 EUR).^[10] It is worth noting that Libri-Bookline Zrt. has recently been bought by Mathias Corvinus Collegium, a pro-government educational institution operating as a public interest asset management foundation receiving hundreds of billions of HUFs of public funding. Its president is Balázs Orbán, Political Director of PM Orbán. LÍRA Kft., which received a fine 12 times as high, is an independent chain of bookshops, whose leaders strongly criticized the adoption of the so-called “child protection law”. The imposition of such high fines runs the risk of bankrupting bookshops already under immense market pressure from a government-backed competitor. In the specific case concerning LÍRA Kft. the fine amounts to 56% of the company’s 2022 annual profit after taxation.

The intensified enforcement of the legislation is not limited to commercial activities, but is observable in the field of the media as well. Háttér Society is aware of at least 16 cases where the Media Council reached out to media authorities in other Member States concerning content that portrayed same-sex couples or transgender persons. Furthermore, upon request from the broadcaster M-RTL Zrt., the Media Council decided that a 30 second animated spot of the Budapest Pride Festival cannot be aired as social service advertisement as a substantial part of the spot features a lesbian couple, and thus depicts and propagates homosexuality. A regularly updated report about the enforcement of the so-called “child protection law” is available on the website of Háttér Society. Háttér Society is happy to provide access to English translation of the relevant decisions.

We ask the Commission to continue closely monitoring the enforcement of the legislation, apply for an interim measure at the Court to suspend the enforcement of the law, clarify with the Hungarian government that the not only the so-called “child protection” law, but also its implementing government decree violates the Charter horizontal enabling conditions, and increase the rate of funding withheld with reference to these legal developments.

We look forward to hearing from you. Sincerely,

Evelyne Paradis, Executive Director, ILGA-Europe

Hella Zsirka, Executive Board Member, Háttér Society

---

^[1] Bill no. T/4659

^[2] Case no. 101.K.701.331/2022/7.

^[3] Sarah Margaret Richards v Secretary of State for Work and Pensions, Case no. C-423/04. The case is founded on the interpretation of Article 4(1) of Council Directive 79/7/EEC of 19 December 1978.

^[4] Christine Goodwin v. the United Kingdom, Application no. 28957/95.

^[5] Deldits-case, Case no. C-247/23

^[6] Act no. LXXIX of 2021

^[7] Government Decree 210/2009. (IX.29.) on the conditions governing commercial activities

^[8] Case no. 769/22

^[9] Letter no. BP/2200/01194-2/2023

^[10] Decision no. BP/2200/03940-5/2023

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ILGA-Europe issue this public statement to express our support to and solidarity with trans and gender diverse people in Russia in the light of the recent legislative developments that severely infringe upon their human rights.

A proposed bill, passed in the third reading at the Russian Duma on July 14[1], introduces a comprehensive ban on trans-specific healthcare and legal gender recognition, effectively limiting individuals’ autonomy over their own bodies and identities.

We firmly assert that such legislation flagrantly violates fundamental human rights standards and principles.

ILGA-Europe firmly believe in the inherent dignity and equal rights of all individuals, regardless of their gender identity or expression. International human rights standards, including the Universal Declaration of Human Rights, emphasise that everyone has the right to self-determination, privacy, and the highest attainable standard of physical and mental health. Denying trans and gender diverse individuals access to trans-specific healthcare and legal gender recognition blatantly disregards the international human rights framework.

We stand in solidarity with the trans and gender diverse community in Russia, whose rights and wellbeing are under attack. The denial of trans-specific healthcare, including hormone therapy and surgeries, not only disregards the human rights of trans and gender diverse people but also perpetuates discrimination, stigmatisation, and marginalisation. It is essential to recognise that trans-specific healthcare is a critical component of comprehensive healthcare, promoting the well-being, mental health, and social integration of trans and gender diverse people.

Furthermore, the bill invalidates all certificates of legal gender recognition for individuals who have undergone transition-related surgery but not yet changed the gender marker in their passport. This is a violation of their right to privacy, places trans people in legal limbo, and creates unnecessary burdens on trans people, forcing them to disclose their private and medical history and exposing them to discrimination, harassment and violence.

Additionally, the prohibition on adoption and guardianship for trans and gender diverse people is a denial of their right to form a family and care for children in need. This discriminatory provision perpetuates harmful stereotypes and prejudices against trans and gender diverse parents.

This bill not only violates the rights of trans and gender-diverse people but also raises concerns about the wellbeing and bodily autonomy of intersex children and people, particularly in relation to intersex genital mutilation. International human rights bodies have repeatedly classified non-vital or cosmetic medical interventions against intersex infants and children without the child’s full personal, informed consent, otherwise known as “intersex genital mutilation” or “IGM”, as constituting cruel, inhuman, or degrading treatment or harmful practices. These practices violate the principles of bodily autonomy, non-discrimination, and the best interests of the child. They have been recognised as human rights violations that require urgent action and protection for intersex people. 

The bill will now be voted in the Federation Council on July 19 and then needs to be signed by the President to come into force.

We stand united and in solidarity with our allies and partner organisations in demanding justice, equality, and dignity for trans, gender-diverse and intersex people in Russia. We will continue to advocate tirelessly for the full recognition of their human rights, including bodily autonomy, access to comprehensive healthcare, legal gender recognition based on self-determination, and the right to form families of trans and gender diverse people in Russia.

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[1] http://duma.gov.ru/news/57524/

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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.

Despite intense anti-LGBTI attacks in several countries, equality is still advancing across Europe, ILGA-Europe’s annual Rainbow Map and Index shows.

The latest Rainbow Map and Index from Europe’s leading LGBTI organisation, ILGA-Europe, finds that while the public discourse is becoming more polarised and violent, particularly against trans people, political determination to advance LGBTI rights is paying off. The largest gains on the map are for countries that introduced legal gender recognition (LGR) using a self-determination model.

Published on Thursday, May 11, 2023 at the IDAHOT+ Forum in Iceland, ILGA-Europe’s annual Rainbow Europe Map and Index, ranking the legal and policy situation of LGBTI people in 49 European countries, finds that over the past 12 months bans on intersex genital mutilation (IGM) are also bringing countries up in the ranking. Spain jumped six places to number four with its introduction of LGR with self-determination, alongside a ban on IGM, while Finland entered the top ten, again up six places, again with LGR based on self-determination. Greece has also moved up four places with its ban on IGM.

Gender identity and sex characteristics are included in anti-discrimination and/or hate crime legislation, moving Belgium, Iceland and Moldova up the chart alongside Spain.

While the advancement of legislation recognising gender identity marks a major shift forward this year, there is more positive movement on the Rainbow Map and Index, notably:

• Moldova has jumped 14 places because sexual orientation and gender identity have been positively included in legislation covering employment, education, provision of goods and services, health, hate crime and hate speech.

• Slovenia and Switzerland switched positions. Both countries introduced same-sex marriage and joint adoption. Switzerland also allows medically assisted insemination for couples. Croatia too moved up one spot with its introduction of adoption for same-sex couples.

According to ILGA-Europe’s Executive Director, Evelyne Paradis: “As powerfully evidenced in this year’s Rainbow Map, the rise of anti-LGBTI rhetoric from anti-democratic forces, particularly instrumentalising false anti-trans narratives, is being fought back by politicians in Europe who have the courage to make a stand for the fundamental human rights and equality of every citizen. The map highlights the clear fact that progress for LGBTI people is still possible, and more important than ever, with the need for more leaders to push back on attacks on democracy for all by pushing forward. We commend those politicians who have taken the stance that needs to be taken for the good of everyone in our society, and we encourage more to step up to the plate as across Europe democracy and human rights are under threat from the far-right.”

Katrin Hugendubel, Advocacy Director at ILGA-Europe adds: “Governments, but also other political actors and institutions can and have been making a positive difference this year. A lot of progress relies on the Courts, for instance, at local, national and European level. Poland remains the country in the EU with the lowest ranking at 43rd place, but the country gained points in the index this year because of the courts ensuring that no surgical interventions are needed for legal gender recognition and the equality body extending its work to include intersex people. In a very hostile global climate, we are seeing different actors coming together, and weighing in more actively for LGBTI rights, which is crucial to counter the pushback.”

That pushback can also be seen in the challenge to freedom of assembly amid the rise of anti-democratic forces. Markedly, Serbia, which hosted a seriously compromised EuroPride march after last-minute attempts by the Serbian President and Minister of the Interior to ban the event, went down three places, while Turkey remains almost at the very bottom of the ranking after another year of crack-downs on Pride gatherings, showing that in 2023 the basic right to gather in a public space still cannot be taken for granted.

Released every May since 2009, marking International Day Against Homophobia, Transphobia, Biphobia, and Intersexphobia (IDAHOBIT), the ILGA-Europe Rainbow Map ranks all 49 European countries on a scale between 0% (gross violations of human rights, discrimination) and 100% (respect of human rights, full equality).

Executive summary 2023

Rainbow Europe – ILGA-Europe’s annual benchmarking tool – comprises the Rainbow Map and Index and national recommendations. ILGA-Europe have produced the Rainbow Map and Index since 2009, using it to illustrate the legal and policy situation of LGBTI people in Europe.

The Rainbow Map and Index ranks 49 European countries on their respective legal and policy practices for LGBTI people, from 0-100%.

In order to create our country ranking, ILGA-Europe examine the laws and policies in 49 countries using 74 criteria, divided between seven thematic categories: equality and non-discrimination; family; hate crime and hate speech; legal gender recognition; intersex bodily integrity; civil society space; and asylum. More information on the list of criteria and their weight on the total score can be found at www.rainbow-europe.org/about

Policymakers, researchers and journalists are able to go ‘behind’ the points and see the original information sources that we base our Map and Index ranking on. This additional layer of information is available through our updated Rainbow Europe web module, www.rainbow-europe.org.

The Rainbow Map and Index presents a picture of what the policy landscape is like currently, while our country-specific recommendations attempt to answer the question “what’s next?” These recommendations are intended to encourage policymakers to address the most pressing legal and policy priorities within the framework of our Rainbow Map and Index.

The recommendations were gathered following an online consultation with a wide range of LGBTI organisations in the various countries. As a result, the recommendations are tailored to the needs of activists working on the ground.

• For the eighth year in a row, Malta continues to occupy the number one spot on the Rainbow Europe Map, with a score of 89%.
• With 76 points, Belgium now occupies the second place with a rise of four points due to the inclusion of gender identity and sex characteristics as aggravating factors in the country’s penal code.
• Denmark comes third place with a score of 76 with the rise of two points due to its new equality action plan, which includes specific measures on sexual orientation and gender identity but falls short of inclusion of projects on sex characteristics.
• The three countries at the other end of the Rainbow Europe scale are Azerbaijan (2%), Turkey (4%), and Armenia (9%), exactly the same as the last three years. Among them, only Armenia increased an index point after revoking its ban on blood donations from men who have sex with men.
• Spain, Iceland, Finland, Moldova, Switzerland, and Croatia are the countries with the biggest jump in scores. Spain introduced a comprehensive law that regulates legal gender recognition (LGR) based on self-determination, banned genital mutilations on intersex minors, prohibited so-called “conversion” practices and outlawed discrimination based on sexual orientation, gender identity, and sex characteristics.
• Iceland adopted an equality action plan, included gender identity and sex characteristics in their equality law, and added sex characteristics protection in the penal code. Moldova also amended its equality law and penal code to include sexual orientation and gender identity.
• Finland adopted its Trans Law which regulates LGR based on self-determination.
• Switzerland’s legislation on marriage equality came into effect, which also gave the right to joint adoption and medically assisted insemination for same-sex couples. In Croatia, same-sex couples can now apply for joint adoption and second-parent adoption after a court decision.

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

ILGA-Europe are calling on the EU co-legislators to take a strong stance against intersex genital mutilation as a form of violence against intersex women and girls

ILGA-Europe are urging the EU to criminalise the practice of IGM against intersex people, particularly intersex women and girls, as part of the proposal for a Directive combatting violence against women and domestic violence.

This call to action stems from the fact that IGM is a harmful practice that violates the human rights of intersex individuals. It is a non-vital or cosmetic medical intervention performed on intersex infants and children without their full, prior, personal, informed consent. International human rights bodies have repeatedly classified IGM as cruel, inhuman, or degrading treatment, or harmful practices[1].

IGM is often performed on intersex women and girls with the aim of creating bodies that are capable of heterosexual penetrative sex, frequently long before the individual has the opportunity to express either a gender identity or sexual orientation. This presumption that intersex women and girls will need bodies that look and function in the same way as the bodies of heterosexual endosex[2] women and girls is enforced without the individuals’ consent, frequently irreversibly.

Procedures and treatments performed on intersex infants and children assigned female, such as labiaplasties, vaginoplasties, clitoral “recession” and other forms of clitoral cutting or removal, and gonadectomies, are specifically based on misogynistic beliefs and are aimed at exerting control over their physical appearance and sexuality, which is a form of violence against intersex women and girls.

Moreover, intersex women and girls can also experience “corrective rape” in similar ways to LBT women, because of their physical appearance, which can lead to targeting by perpetrators who believe they do not look “female enough.” Rape of intersex persons inside families or by relatives can take the form of punishment, especially in families where the existence of the intersex family member is considered shameful for the family.

The criminalisation of intersex genital mutilation is an important step towards protecting the rights and well-being of intersex individuals, particularly intersex women and girls, who are disproportionately affected by this harmful practice.  

•  By criminalising IGM, the EU would send a strong message that this practice is not acceptable and will not be tolerated.
• It would provide a legal framework for prosecuting those who perform these procedures, as well as those who facilitate or encourage them.
• It would help to hold accountable medical practitioners who perform IGM, as well as parents or guardians who consent to the procedure.
• Criminalising IGM would also help to raise awareness about the harms of this practice and promote a broader understanding of the rights and experiences of intersex individuals.
• It would demonstrate the EU’s commitment to upholding the rights of all individuals, regardless of their sex characteristics.

Incorporating criminalisation of IGM into the proposed directive combatting violence against women and domestic violence is a logical step, as IGM is a form of violence against women and girls. It is consistent with the broader goals of the directive, which seeks to prevent and combat violence against women and girls in all their diversity, and to promote gender equality.

Overall, criminalising IGM is vital to protecting the rights and well-being of intersex individuals and promoting a more inclusive and just society.

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[1] E.g. CAT/C/AUT/CO/6, CAT/C/DEU/CO/5, CCPR/C/AUS/CO/6, CRC/C/GBR/CO/5, CEDAW/C/CHL/CO/7

[2] Endosex, or diadic, are terms that refer to non-intersex people, or people who do not have variations of their sex characteristics.

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.