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

Submitted jointly by ILGA-Europe and AIRE Centre

Find here the communicated case.

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

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

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

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

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

Anti-LGBTI bias

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

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

Arbitrary use of COVID-19 regulations

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

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

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

Judgments are not implemented

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

Rise in hate crime and hate speech against LGBTI people

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

Hate crimes are not investigated

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

So, what can be done?

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

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

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

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

A report from the leading LGBTI organisation in Europe finds that amid a rise in official anti-LGBTI rhetoric fueling a wave of hate crime in every country in Europe, there is a growing institutional resolve to tackle hatred and exclusion.

Published today, February 15, 2022, ILGA-Europe’s Annual Review of the Human Rights Situation of LGBTI people in Europe and Central Asia finds that while there was a staggering rise in 2021 of anti-LGBTI rhetoric from politicians and other leaders, fuelling a wave of violence, with anti-LGBTI hate crime reported in every country, the response to this has been an allied determination in many countries, and at the European level, to tackle hatred and exclusion of LGBTI people.

Politicians in countries across Europe, not just in the usually reported Hungary and Poland, have continued to demonise LGBTI people over the past year, leading to a stark rise in anti-LGBTI attacks, burning of rainbow flags, and targeting of young LGBTI people in particular. A particular low point of the year came on June 15, with Hungary’s introduction of legislation which introduced a ban on the “portrayal and the promotion of gender identity different from sex at birth, the change of sex and homosexuality” for persons under 18.

Reported violence against LGBTI people in this context across Europe was rife. Germany, for instance, had a 39% increase in anti-LGBTI hate crime, while a new app in France, where users can report anti-LGBTI hate crimes, collected reports of 3,896 incidents in its first year. In the second year of the COVID-19 pandemic, domestic violence against LGBTI family members continued to take place widely. There were murders, assaults, corrective rapes, and anti-LGBTI police brutality. In many countries where police brutality took place, the police were not held accountable.

Anti-gender and anti-trans rhetoric have remained widespread, often targeting youth in particular. The narrative pitching trans rights against women’s rights also continued apace this year, and in this context there was stagnation in legal gender recognition (LGR) reform in many countries.

According to Executive Director of ILGA-Europe, Evelyne Paradis: “The spread of anti-LGBTI and trans exclusionary rhetoric outlined in this report has a very real negative impact on people’s lives. In country after country, we see how it negatively impacts people’s mental health and their sense of safety, their access to employment and the overall ability to progress much needed legal protection. At this moment in time, it is essential we remind politicians, media, academics  –  and sadly even some civil society actors – that real people’s lives are at stake in every country across the region, because of the political scapegoating of LGBTI people.”

In the context of this political scapegoating, national human rights institutions (NHRIs) and courts in many countries have begun to strengthen their work to protect the rights of LGBTI people. The European Court of Human Rights delivered several positive judgments this year, on hate crimes, freedom of assembly, LGR and family rights.

By far the strongest commitment to LGBTI human rights from European Union level came when the European Commission (EC) in July opened landmark infringement procedures against both Hungary and Poland. The European Parliament also adopted its resolution on LGBTIQ rights in the EU, strongly supporting the EC’s objective to propose legislation in several areas of protecting LGBTI rights, and condemning where member states have not been respecting EU law as regards LGBTI rights.

Said Katrin Hugendubel, Advocacy Director at ILGA-Europe, “This report narrates an unparalleled year in Europe, with regional and national institutions and courts taking their obligations to the human rights of LGBTI people with utmost gravity amid the now crystal clear escalation of the instrumentalisation of hatred against LGBTI people for political gain and expanded power. The advance of using hatred of any minority as an instrument of political gain, which we have seen throughout history, must be addressed and halted with allied determination across the region.”

It is also clear from this report that state-sponsored anti-LGBTI rhetoric and legislation is not matched by public opinion. Support for LGBTI people has never been stronger. In Hungary, for instance, a representative poll commissioned by Amnesty International Hungary and Háttér Society and conducted by polling agency Medián between 13 and 19 July 2021, found that 73% of Hungarians reject the government’s false claim that gay and lesbian people abuse or harm children.

A clear majority of Hungarian society (74,5%) believe that transgender people should be able to change their gender and name in their official document, while 59% support same-sex marriage. Hardly any Serbians know trans people, but 60% think they should be protected from discrimination. 68% of Romanians think all families, including rainbow families, should be protected, while 40% of Bulgarians would support a party that is pro-LGBTI.

According to Soudeh Rad, co-chair of the ILGA-Europe board: “While these numbers and outcomes of similar polls are promising as heartwarming illustrations of the strength and impact of the work carried out by civil society and the LGBTI movement at global, regional, and local levels, we must not forget the struggles activists across Europe and Central Asia face in realising a world where everyone can enjoy their human right to  fully be themselves.”

Check out our Annual Review 2022.

Navigate the Annual Review chapters by country, institution or theme at our Rainbow Europe module!

For further comment, please contact ILGA-Europe’s Communications and Media Officer Ana Muñoz Padrós at ana@ilga-europe.org or +32 493356055.

The Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe and Central Asia between January-December 2021.  

The Annual Review is ILGA-Europe’s annual publication documenting legal, political and social developments in 54 countries and 4 European institutions over the past calendar year. It is a unique report tracking key positive and negative trends in relation to LGBTI equality and human rights in Europe and Central Asia.

This year’s review finds that behind the smokescreen of anti-LGBTI rhetoric in Europe, there’s a groundswell of allied determination to tackle hatred. 

Human rights instruments are evolving to reflect the times we’re living in — and address the current everyday realities that LGBTI people face. 

At ILGA-Europe, we work to ensure that rights of LGBTI people are protected within national constitutional and legal systems, as well as by European and international human rights law, namely by the European Convention on Human Rights, the European Social Charter, the Charter on Fundamental Rights and EU Treaties – and UN treaty bodies. Above all, our goal is to ensure the continuous advancement and protection of the rights of LGBTI people. 

We do this by engaging in strategic litigation and advocacy at European and international levels. We also support national-level advocacy. As a whole, our work focuses on family, legal gender recognition, intersex human rights and anti-discrimination.

Here is how we work with each of these focus areas:

Family

ILGA-Europe works to ensure that LGBTI people’s family rights are recognised and protected. For example, we support cases and initiatives that would bring marriage equality and access to registered partnerships with equal rights for LGBTI people.

We also work towards ensuring freedom of movement and residence rights for LGBTI people across the EU. Family members – including spouses, registered partners and children – should enjoy freedom of movement without discrimination. Moreover, children of rainbow families (biological or adopted) should have access to these same rights – no matter their nationalities.  

Parenting rights are a key area for us, too. We work to help make sure that LGBTI people can have custody of or access to their biological children following the breakup of a previous, different sex relationship or in cases of medically-assisted procreation. Access to assisted reproductive treatment is fundamental, as is access to parental leave for the second parent in a same-gender couple. 

Other aspects of parenting rights include LGBTI people’s access to adopt children, whether they’re single, engaging in second parent adoption or going down the joint adoption route. ILGA-Europe also acknowledges the specific challenges that trans persons face around parenting and we work to combat them.

For example, we try to ensure that the rights of trans persons are still protected if a marriage dissolves that they entered prior to their gender change. And for trans parents, we work to ensure that their right to parenthood is indicated by the correct legal name and gender on their child’s birth certificate, while at the same time protecting their privacy.

We use the following strategies to achieve our goals on ensuring legal protections for LGBTI families.: 

• Offering support to national advocacy 
• Conducting strategic litigation
• Engaging in advocacy at the European level — in collaboration with NELFA, TGEU and NGOs working on family rights and children’s rights
• Raising awareness about the obstacles faced by rainbow families to enjoy their family rights
• Support development of international human rights standards with the EU and Council of Europe
• Creating space for peer learning among legal practitioners and members to share best practices and brainstorm together

Legal Gender Recognition 

Working to ensure legal gender recognition for trans, non-binary and intersex people meets essential minimum requirements. First of all, we strive to enable quick, transparent and accessible procedures based on self-determination for changing names and/or genders on birth certificates, identity cards, passports, educational certificates and other documents. 

ILGA-Europe is firm in our stance that trans people should never be required to undergo sterilisation or any other medical intervention as a prerequisite for legal recognition of their gender.

Last but not least, we argue for abolishing divorce requirements as a precondition of legal gender recognition. 

To achieve all our goals around enabling human rights-based framework for legal gender recognition for trans, non-binary and intersex people, we use the following strategies:  

• Conducting strategic litigation 
• Supporting national advocacy 
• Engaging in advocacy at the European level jointly with TGEU and OII Europe
• Support development of international human rights standards with the EU and Council of Europe
• Creating space for peer learning amongst legal practitioners and members to share best practices and brainstorm together
• Engaging in advocacy with EPATH and WPATH

Intersex Human Rights

Our work to ensure that human rights of intersex people are respected, include helping ensure the right to bodily integrity and the banning of intersex genital mutilation. At ILGA-Europe, we also strive to cement equal access to legal gender recognition for intersex people.

Access to healthcare is a focus area for us, too – according to individual physical needs and separated from the sex/gender markers in their official documents.  

To achieve all our goals around ensuring intersex human rights, we embrace the following strategies: 

• Providing strategic litigation 
• Supporting national advocacy 
• Engaging in advocacy at the European level together with OII Europe
• Developing international human rights standards with the EU and Council of Europe
• Creating space for peer learning among legal practitioners and members to share best practices and brainstorm together

Anti-Discrimination

When it comes to ensuring equality and non-discrimination for LGBTI people, ILGA Europe focuses on a few areas.

Overall, we work to make sure that LGBTI people are not discriminated against based on sexual orientation, gender identity and expression and sex characteristics. That includes tackling hate crime and incitement of violence based on grounds of sexual orientation, gender identity, gender expression and sex characteristic (SOGIESC) – and protection from hate speech. It also entails access to goods and services, socio-economic equality and employment; protection from multiple discrimination; and freedom of movement. 

To achieve our anti-discrimination goals, we use the following strategies: 

• Conducting strategic litigation 
• Supporting national advocacy 
• Engaging in advocacy at the European level 
• Supporting development of international human rights standards with the EU and Council of Europe

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When an EU country recognises a child and its same-sex parents as a family, all EU countries should recognise them as such, so to guarantee their freedom of movement. This is what the EU’s top court ruled in December. But how this case has advanced LGBTI rights in the European Union and what comes next for rainbow families?

At the end of 2021, the Court of Justice of the European Union (CJEU) ruled that if one EU country recognises the child’s parental relationship, then all EU countries should do the same to guarantee the child its freedom of movement across the region, a right of all EU citizens.

The ‘Baby Sara’ case, as it has become known, will have a long-term impact on rainbow families in the EU. Born in Spain to a lesbian couple, baby Sara was denied citizenship there because neither of her Bulgarian and Gibraltarian mothers are of Spanish descendent. Under the British Nationality Act, Gibraltar-born parents cannot transfer UK citizenship.

So, Bulgaria was the one reasonable option left for the family. But same-sex unions are not recognised in Bulgaria and two persons of the same sex cannot be registered as the parents of a child. The Bulgarian authorities thereby refused to issue a birth certificate on which the parents are two women, choosing to not recognise a valid EU birth certificate from another member state. This left baby Sara at risk of statelessness. She had no identity documents and could not leave Spain.

After December’s CJEU judgment, the Bulgarian authorities are obliged to issue an identity card or a passport to baby Sara, a ruling that all other EU countries should recognise.

So, what are the real implications for rainbow families?

Following the CJEU ruling, Baby Sara and her mothers must be recognised as a family for the purposes of EU law, and must be able to enjoy freedom of movement in all EU countries. Freedom of movement, the right of persons to move and reside freely within the territory of EU member states, is a right of all EU citizens.

This is the first case where the CJEU has ruled on cross-border recognition of parental ties in rainbow families. It stated that it is against the fundamental rights of the child to be deprived of the familial ties established in an EU country when traveling in the EU. The family ties were not recognised in baby Sara’s birth cert application because the parents are two persons of the same sex.

The court also clarifies that national identity cannot be used as an argument to deny freedom of movement to rainbow families. This means that it does not undermine Bulgaria’s national identity to recognise parenthood established in Spain, another EU country, an argument often brought by those countries that do not recognise same-sex families.

In other words, the Court has not obliged Bulgaria to allow and recognise same-sex couples in its territory as the parents of a child. Rather, it simply requires Bulgaria to recognise the familial ties among the members of rainbow families — as these have been established in another EU country — when the family moves to its territory.

Finally, the ruling gave legal endorsement to European Commission’s President Ursula von der Leyen 2020 State of Union address, when she affirmed that “If you are parent in one country, you are parent in every country”.

Will the Baby Sara judgement immediately free up movement for rainbow families in the EU?

Implementation is the crucial part of any European court ruling, and often this is fraught with difficulties and time consuming.

The work of the CJEU has finished for now. The Bulgarian authorities must find a solution and decide on the type of identity documents for Sara. This might take time, and considering the situation of LGBTI rights in the country (Bulgaria is in 37th position out of 49 in our 2021 Rainbow Map of legal rights for LGBTI people in Europe), it may mean additional hurdles for baby Sara’s family and further litigation. For example, the Coman case, also related to same-sex unions and freedom of movement, has not been implemented by Romania after three years since the judgment.

However, if Bulgaria or other countries that do not recognise rainbow families refuse to implement the CJEU judgment, the European Commission can start infringement procedures, as these countries would breach EU law. If carried to their last step, this can mean financial penalties against Bulgaria.

So, it’s not as easy as a judgement being made and every country in the EU suddenly opening its borders to rainbow families. But, the world watched the judgement in the Baby Sara case closely, and it was a major step forward in the recognition of the children of same-sex parents across the European Union. We will be watching the implementation of this case very closely too, and will report on how it is progressing.

At the same time, the European Commission is in the process of working on new legislation on the EU-wide recognition of parenthood as well as on guidelines on ensuring freedom of movement for all. We will work hard to ensure that the judgment will be fully reflected and respected there, with the hope that one day soon, all rainbow families will be able to enjoy the rights that every other family in the EU take for granted.

A survey of LGBTI organisations across Europe and Central Asia finds they face significant challenges in the face of growing anti-LGBTI forces, and the ongoing COVID-19 crisis.

A report launched today by Europe’s leading LGBTI organisation, ILGA-Europe indicates that LGBTI activists are struggling to resource their work amid a number of challenging factors.

The report, entitled, “Funding To Meet Changing Realities – LGBTI Organisations on the State of Funding in Europe and Central Asia, Survey 2021”, based on survey responses from 300 LGBTI organisations across Europe and Central Asia finds that:

• About one third of LGBTI organisations operate on yearly budgets under 20,000 Euro, whilst engaging in a wide variety of activities to simultaneously serve their communities and advance laws and policies to protect LGBTI people’s human rights
• Amidst the COVID-19 pandemic, organisations across the region stepped up to fill the gaps by providing services to LGBTI people that should have been provided by public authorities
• Every second LGBTI organisation in the region experiences stress and burnout due to not being able to meet the needs of LGBTI people coming in for help

Overall, 84.9% of organisations say that they have been faced with burnout issues. The most common cause of stress and burnout across was not being able to meet the needs of LGBTI people coming in for help (49.7%), responding to COVID-19 (46.1%) and having to respond to external threats from right wing, anti-LGBTI or “anti-gender” groups or individuals (43.6%).

The report further assesses challenges that LGBTI organisations face and maps the diversity of work done and communities served by organisations. About three-quarters of LGBTI organisations identified a lack of funding for the activities that are most important to their organisation as a barrier to implementing projects. They often do the most important work for them without funding, or without dedicated funding.

The report also indicates that the despite mounting workloads, burnout and growing threats and attacks, LGBTI organisations continue to widen their work, focusing on a variety of highly vulnerable groups within the LGBTI community, such as migrants, young people, and trans and gender and non-conforming people, and are in dire need of additional resources to ensure that they can strengthen these efforts.

Amongst the good news is that LGBTI organisations across the regions have grown the proportion of their own resources to support their work, for instance by getting more donations from companies and private donors.

Launching the report, ILGA-Europe Programmes, Director Björn van Roozendaal said: “Behind the rich data contained in this report there is a powerful story of LGBTI activists who amidst growing opposition, rising oppression and an unfolding pandemic have continued to stand up for their communities, reached out to those who are most affected and continued to undertake new work and build partnerships to meet today’s challenges. But resources continue to be scarce. The stark findings of this report should be a call to action to anyone who can and wants to support or step-up their commitment to support LGBTI organisations.”

Further information:

The report Funding To Meet Changing Realities – LGBTI Organisations on the State of Funding in Europe and Central Asia, Survey 2021 is written by Erin Howe and Somjen Frazer from Strength in Numbers Consulting Group for ILGA-Europe. It is based on a survey to which nearly 300 LGBTI organisations responded, as well as interviews with 21 activists.

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

It was a year of further lockdowns, of new strains of the COVID virus, and the uncertainty they have brought, and most of all, enormous reverberations of the unprecedented events of 2020 on people’s lives.

At ILGA-Europe, when the pandemic first kicked in, our motto was ‘the work goes on’, and that work most certainly continued apace throughout 2021, with the growth of a perceived east-west divide in Europe over LGBTI rights; infringement procedures taken by the European Commission against Hungary and Poland because of their anti-LGBTI laws and programs; a sharp rise in the demonisation and isolation of trans people from the women’s movement; and an overall rise in authoritarian regimes seeking to instrumentalise LGBTI lives to limit the rights of others.

So, it’s perhaps strange that our guest in this episode, ILGA-Europe’s Executive Director, Evelyne Paradis finds great hope for the LGBTI movement amid the storm. Listen now, and find out why.

Child, being a minor and a Union citizen, whose birth certificate was drawn up by the host Member State and designates as parents two persons of the same sex: the Member State of which the child is a national is obliged to issue an identity card or a passport to that child without requiring a birth certificate to be drawn up beforehand by its national authorities.

In a landmark judgement, the Court of Justice of the European Union has ruled that a child and its same-sex parents must be recognised as a family, the child should be issued a Bulgarian passport, and the family should have free movement in all Member States of the European Union.

Today, December 14, the Court of Justice of the European Union (CJEU) ruled that if one EU member state recognises a parental relationship between a child and its parents, then all member states should, in order to give the child it’s right to freedom of movement.

The case ‘Stolichna obshtina, rayon Pancharevo’ arose when a same sex couple were refused a birth certificate in Bulgaria for their infant daughter, who was born in Spain. The Bulgarian authorities asserted that the couple, one of whom is Bulgarian, could not be registered as parents on the child’s birth certificate, leaving the family in legal limbo.

Bulgarian born Kalina Ivanova* and Gibraltar-born Jane Jones* are the mothers of Sara, who was born in Spain in 2019. Under current Spanish law, the child could not acquire Spanish citizenship because neither Kalina or Jane is a Spanish citizen. The child was also denied British citizenship because Jane was born in Gibraltar of British descent, and under the British Nationality Act (1981), cannot transfer citizenship to her daughter.

Therefore, Kalina requested Bulgarian citizenship for their daughter. Bulgarian authorities rejected a request for citizenship of the child, the application, arguing that a child cannot have two mothers, and refused to issue a birth certificate in which the parents are two persons of the same sex.

Sara was therefore deprived of Bulgarian, and therefore European citizenship, and was at risk of statelessness. Currently, the child has no personal documents and cannot leave Spain, the country of the family’s habitual residence. The lack of documents restricts Sara’s access to education, healthcare, and social security in Spain.

In Bulgaria, same-sex marriages and same-sex registered partnerships are not recognised.

Today the CJEU ruled that it is contrary to the fundamental rights guaranteed by Articles 7 and 24 of the Charter for the child to be deprived of the relationship with one of her parents when exercising her right of free movement or for her exercise of that right to be made impossible or excessively difficult on the ground that her parents are of the same sex.

The ruling asserts that the Bulgarian authorities are obliged to issue an identity card or a passport to Baby Sara, which all other EU Member States are obliged to recognise.

Welcoming the ruling, Baby Sara’s parents said: “We are thrilled about the decision and cannot wait to get Sara her documentation and finally be able to see our families after more than two years. It is important for us to be a family, not only in Spain but in any country in Europe and finally it might happen. This is a long-awaited step ahead for us but also a huge step for all LGBT families in Bulgaria and Europe.

“Thank you so much to the LGBT Deystvie organisation in Bulgaria and especially to our legal representation, Denitsa Ivanova and Veneta Limberova for fighting for our family and countless others in our position. Thanks too all the people and organisations who supported us in this process: ILGA-Europe, NELFA, ACCEPT Romania and many others.”

According to Arpi Avetisyan, Head of Litigation at Europe’s leading LGBTI rights organisation, ILGA-Europe, which intervened in the case: “We are very pleased with CJEU’s judgment this morning. It gave legal endorsement to the EC President Ursula von der Leyen DL’s words, delivered during last year’s State of the Union address: ‘If you are a parent in one country, you are parent in every country’. The judgment has brought long-awaited clarification that parenthood established in one EU Member State cannot be discarded by another, under the pretence of protecting the “national identity”. This is a true testament to the EU being a union of equality and we look forward to seeing rainbow families enjoying their right to freedom of movement and other fundamental rights on equal footing to anyone else. It is important that the judgment is implemented imminently, not only for baby Sara and her family, but also for other families facing similar struggles across the EU.”

*Names have been changed.

For comment, contact Ana Muñoz media officer at ana@ilga-europe.org and +32493356055

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

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

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

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

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

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

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

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

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

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

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

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

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

Find here the communicated case.

Recently, the European Court of Human Rights ruled in favour of a trans woman in Russia who was denied access to her children because of her gender identity and transition. Read on to find out how this may benefit all trans and LGBTI parents in Europe.

For four long years, A.M. did not see her own children. This was not her decision. She was denied her right to love, care for and nurture the bond with her children because of her gender identity and her transition, after her ex-spouse obtained a court order. Now, the European Court of Human Rights has ruled in her favour in a landmark judgment. This is the first time the court has found a violation of the prohibition of discrimination (Article 14) because of a person’s gender identity. It also found a violation of the applicant’s right to private and family life (Article 8).

A.M., the applicant in the case, is the parent of two children born in 2009 and 2012. After seven years of marriage, in 2015 she separated from her wife and began her legal gender recognition process to live in the gender she identifies with. She continued to see her children for over a year, until a district order obtained by her ex-partner cut off visitation in 2017.

The Russian courts argued that the decision to restrict the applicant’s parental rights was necessary, as contact with the trans parent would have a “negative impact on the mental health and psychological development” of her children. It also claimed that visitation could violate so-called propaganda law, which bans public statements in relation to LGBTI people in Russia.

However, the European Court of Human Rights noted that the domestic courts made their decision “in the absence of any demonstrable harm to the children,” failing to demonstrate that the restriction was justified and well-substantiated. Notably, the court found that the applicant had been discriminated based on her gender identity in comparison to other cis parents, saying that she has been “treated differently from other parents who also seek contact with their estranged children, but whose gender identity matches their sex assigned at birth.” It also added that depriving A.M. of any contact with her children could “have irremediable consequences for relations between the child and the parent with whom that child does not live.”

The court awarded the applicant €9,800, even though she had not asked for pecuniary compensation, concluding that “such damage cannot be compensated for solely by the finding of a violation.”

Every fourth trans person in Europe is a parent and this judgement gives legal security to many of them. Now it has been confirmed that discrimination based on gender identity, prohibited under the European Convention, applies in parental rights cases. If you are a good parent, that’s what matters, irrespective of your gender identity

From a children’s rights perspective, when someone tries to limit parental rights for trans and LGBTI parents more broadly, the main argument used is that it is has detrimental effect on children. In other words: they say children would suffer because of their parent’s gender identity. The court has made clear that it is in the best interest of the child to have a loving parent and that to restrict visitation just because a parent is trans is not a good enough reason.

The European Court of Human Rights is the court of law of the Council of Europe, of which Russia is a member. Judgments of the European Court of Human Rights are binding on all Council of Europe Member States; however, Russia has ignored the rulings several times. In 2020, draft amendments to the Russian Family Code would have seriously negatively affected legal gender recognition procedures. In November these amendments were withdrawn.

“We call upon the Russian authorities to respect the court’s decision and immediately end the discrimination of trans families,” said ILGA-Europe’s Executive Director, Evelyne Paradis.

The European Court of Human rights has ruled that the refusing a mother custody of her youngest child on the grounds of her sexual orientation to be discriminatory and a violation of her right to private and family life.

In a judgement released today on the case of X. v Poland, the European Court of Human rights found the refusing a mother custody of her youngest child on the grounds of her sexual orientation as discriminatory and a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the applicant.

The case concerned custody arrangements of applicant’s youngest child following her divorce. The main consideration of the courts was that the applicant, the mother of the child, was in a relationship with another woman. She alleged that the courts had acted in her former husband’s favour because of her same-sex relationship.

The Court found that there was “a difference in treatment between the applicant and any other parent wishing to have full custody of his or her child”.  Moreover, the Court considered that the discriminatory reference to the importance of a male role model for the boy’s upbringing, which was one of the decisive factors in the dismissal of the applicant’s requests for custody, had outweighed the other arguments: child’s young age, strong bond with the applicant and wellbeing while living with his mother. This reliance on the male role model was discriminatory.

Taking into account that throughout court proceedings, applicant’s sexual orientation and relationship with another woman had been repeatedly referred to as a ground for refusal,  the Court concluded that, in “refusing to grant the applicant full parental rights and custody rights in respect of [the youngest child], the domestic authorities made a distinction based solely or decisively on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention.”

ILGA-Europe had intervened in this case jointly with the International Court of Justice (ICJ), the International Federation for Human Rights (FIDH) and Network of European LGBTIQ* Families (NELFA).

According to Arpi Avetisyan, ILGA-Europe’s Head of Litigation, “Today’s judgment confirms the rights of LGBTI parents to their children on an equal footing as everyone else. The best interests of children to receive parental love and be cared for should prevail in custody considerations, irrespective of parents’ sexual orientation.”

The applicant was awarded EUR 10,000 in respect of non-pecuniary damage. 

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

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

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

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

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

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

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

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

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

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

Background to infringement on Poland:

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

Further information:

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

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

Today, in a landmark judgement strongly welcomed by TGEU and ILGA-Europe, the European Court of Human Rights has ruled in favour of a woman in Russia who was denied access to her children because of her gender identity and transition.

Today, in the case of A.M. and Others v. Russia, the European Court of Human Rights unanimously found a violation of Article 8 (right to private and family life) and Article 14 (prohibition of discrimination).

The case concerns a trans woman from Moscow who was prevented from having contact with her children because of her gender identity and transition. The Court found that the domestic courts did not sufficiently take into account the best interest of the child when restricting the applicant’s parental rights, and observed that, contrary to the established practice, they failed to conduct a comprehensive assessment and scrutiny to evaluate a potential danger to the children’s wellbeing.

The Russian courts argued that the decision to restrict the applicant’s parental rights was necessary, as contact with the trans parent would have a “negative impact on the mental health and psychological development” of her children. The European Court however noted that the domestic courts failed to demonstrate that the restriction was justified and well-substantiated.

Reacting to the judgement, Executive Director of TGEU, Masen Davis said: “The kids are alright – there is nothing wrong with being a trans parent! Today, we celebrate this important message together with all trans families. Every fourth trans person in Europe is a parent. Today’s judgement gives legal security to many of them. We congratulate the applicant for having gone all the way to Strasbourg to defend her right to be the best possible parent to her children.”

Evelyne Paradis, Executive Director of ILGA-Europe added: “Too often we are hearing the best interest of the child being abused as an argument to limit the rights of LGBTI people. We are glad to see the Court clearly rejecting such an abusive argument, and instead naming very concrete responsibilities for state authorities in ensuring the best interest of the child. Spreading hatred, misinformation and splitting loving parents from their children is not in the best interest of children.”

This is the first time the European Court of Human Rights has found a violation of the prohibition of discrimination (Article 14) because of a person’s gender identity. Notably, the Court found that the applicant had been discriminated based on her gender identity in comparison to other cis parents, saying: “[the] applicant has… been treated differently from other parents who also seek contact with their estranged children, but whose gender identity matches their sex assigned at birth.”

The Court awarded the applicant €9,800, even though she had not asked for pecuniary compensation. The Court held that “such damage cannot be compensated for solely by the finding of a violation.”

TGEU and ILGA-Europe had submitted written comments to the case, which the Court took into consideration in its analysis. The comments presented information dispelling myths about trans parenthood, international developments recognising increased rights recognition and requirements for a “best interests of the child” standard.

“We call upon the Russian authorities to respect today’s decision and immediately end the discrimination of trans families,” Evelyne Paradis concluded.

Further information:

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

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

On 5 June 2018, the Court of Justice of the European Union (CJEU) issued a landmark judgement against Romania, recognising that the term spouse includes same-sex spouses under EU freedom of movement laws. Three years later, Clai Hamilton, spouse of Romanian citizen Adrian Coman, has not been granted residency yet. Now they’ve brought the case to the European Court of Human Rights (ECHR). Here, Adrian Coman talks about the original case, and his hopes with this latest development.

When Adrian Coman and Clai Hamilton first met, they did not know that the love they’d found would ultimately change the lives of rainbow families in the European Union. In 2010, while working at the European Parliament in Belgium, Adrian married Clai, a US citizen living in Brussels. Two years later, they decided to move and settle together in Adrian’s home country of Romania.

However, the Romanian authorities chose not to follow EU laws and refused to recognise their marriage, so Clai was not able to apply for a residence permit. Almost a decade on, the situation remains the same.

“I’m sorry to say that change in Romania has always come from abroad,” Adrian Coman told us in an interview for The Frontline, ILGA-Europe’s podcast. It was a decade ago, in 2001, that Romania repealed Article 200, which criminalised homosexual relationships, after receiving pressure from the EU with whom accession talks were taking place. Since then, the one relevant LGBTI related legal change in Romania has been an amendment to the Civil Code, prohibiting same-sex marriages and partnerships, and the recognition of those if they happened abroad.

“What I see is a resistance to change,” says Adrian of his home country. “Some governments think that a majority of Romania is against anything that has to do with LGBT people, therefore resist been seen as operators of change.”

A landmark court case

In 2012 the couple turned to courts to have their marriage recognised for Clai to be able to have residence rights. Six years later, on 5 June 2018, the Court of Justice of the European Union (CJEU) delivered a judgment in favour of Adrian and Clai. It said that the definition of ‘spouse’ in EU law on freedom of movement includes same-sex couples. EU citizens and their families have the right to travel and reside freely within the territory of Member States.

The CJEU’s judgment meant that all EU countries must treat same-sex couples in the same way as different-sex couples when they exercise freedom of movement rights.

“This was a huge achievement,” says Arpi Avetisyan, Head of Litigation at ILGA-Europe. Arpi remembers celebrating when the judgement was published. It was great news for Adrian, Clai and all rainbow families in the EU. There was a sense of happy ending, not only with the case, but also with the positive media exposure it received. Other couples in a similar situation began to tell their stories.

A rollercoaster struggle

However, it’s 2021 and Romania still has not implemented the EU judgment. Adrian and Clai’s marriage has not been recognised in the country and Clai remains unable to apply for residency.

“This case has been like a rollercoaster in a way,” says Arpi Avetisyan. “The struggle continues to ensure the judgment come a reality.”

Now, Adrian and Clai, with the help of ACCEPT , have submitted their case to the European Court of Human Rights (ECHR). “We are very optimistic,” says Adrian about the forthcoming decision. “While we never know how courts will decide, I think all the measures from the higher courts have been favourable. And it’s not surprising because I think the law [in Romania] has not been keeping up with the reality in society. We’ve only seen support and that’s the real change.

“One reason why we’ve stayed in it for so long it’s because we realised it’s no longer about the two of us. Clai and I are very lucky. We live in New York. I happen to be an American citizen at the same time, and we are here, recognised as spouses. We have the choice of not going to Romania now, of waiting… but other people don’t. We recognise the privileges that we have and we have to use them for those who are not in the same situation.”

Watch this space for the European Court of Human Rights decision on Adrian and Clai’s case, and listen to our full podcast below.

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

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

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

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

• You can download the judgment here. 

Every year, Rainbow Europe ranks all 49 European countries based on the laws and policies in each to ensure equal rights and protection for LGBTI people. Countries are ranked from zero percent to one hundred, with zero representing gross violations of human rights and discrimination and one-hundred representing full respect for human rights and equality.

The past 12 months have marked an unprecedented year in the map’s 12-year history, with almost no positive legislative change for LGBTI people in Europe. With us to discuss this disturbing stand-still, on both European and national levels, and the ways forward both at  European and national levels, are ILGA-Europe’s Executive Director, Evelyne Paradis, our colleague, Bjorn Van Roozendaal, Alexa Moore from Transgender NI in Northern Ireland, Alexa Moore, and Kaspars Zalitis from Mozaika in Latvia.

Listen below or click here to listen and subscribe to The Frontline on your favourite podcast platform.

As the 2021 Rainbow Europe Map reveals widespread and almost complete stagnation on human rights of LGBTI people, we are at a juncture when governments can actively choose the right way forward, says leading LGBTI rights organisation, ILGA-Europe.

Published on Monday, May 17 2021, 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 advances in LGBTI rights have come to almost a complete standstill. But, with legislative proposals and action plans on the table in some countries, governments now have the opportunity to ensure the Rainbow Map will look very different this time next year.

Released every year since 2009 on 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). The past 12 months have marked an unprecedented year in the Map’s 12-year history, with almost no positive legislative change for LGBTI people in Europe.

Among the broad findings from this year’s Rainbow Europe Map are:

• Against a background of hardly any positive change at all, countries such as Albania, Finland and Portugal have moved up in the ranking, but only because of very small changes implemented.
• Despite clear commitments on rainbow family recognition, not one country has moved on partnership or parenthood recognition.
• After reporting positive changes in bodily integrity or legal gender recognition for many years, there is no change this year for intersex and trans rights apart from Iceland.
• On a positive note, some countries (Bosnia and Herzegovina, North Macedonia) now have points on freedom of assembly, reflecting improvements of safety for public LGBTI events

Executive Director of ILGA-Europe, Evelyne Paradis said: “It is deeply worrying to report an almost complete standstill on LGBTI rights and equality, especially at such a critical time for LGBTI communities. In the past year, we’ve seen increased political repression against LGBTI people, a stark rise in socio-economic hardship, and the spreading of LGBTI-phobic hatred on the streets and online across the region. Against this backdrop, the response from governments has to be more and better concrete action, to make sure people are more protected, not less. The human rights of LGBTI people simply cannot be something that you drop when circumstances are challenging.”

Katrin Hugendubel, ILGA-Europe’s Advocacy Director added: “So many legislative processes have been stalled in Europe over the past 12 months, in countries including Cyprus, Czechia, Denmark, Finland, France, Italy, Kosovo, Lithuania, Moldova, Montenegro, the Netherlands, Sweden, and the United Kingdom. We also see the implementation of existing procedures, for example on legal gender recognition, worsening, including in Georgia, Spain, Serbia and Northern Ireland”.

“It would be easy to blame it all on political attention being immersed in the public health response to COVID-19 and the ensuing economic fall-out, but the reality is a lot more complex. In too many countries, progress is stopped because there’s increased political polarisation on LGBTI issues, because some elected officials no longer see gains to be made by supporting LGBTI equality, and because governments don’t see it as a priority issue. We do really need governments across Europe to relaunch their political commitments to see legislative processes through, and to give everyone the means to ensure full implementation.”

Evelyne Paradis concluded: “There is a silver lining in this story: if governments actively choose to do the right thing and take real action, our Rainbow Map can look positively different by this time next year. At least 15 countries, including France, Kosovo, Bosnia & Herzegovina, Czechia and Ukraine, have legislative proposals, action plans and policy discussions already on the table. Others, such as Montenegro, have to make sure the laws they adopted effectively come into force, while many more know what they can and need to do to make sure their laws and policies have the desired impact for LGBTI lives.

“At a juncture in history when anti-LGBTI forces are rife, not only in headline-grabbing countries like Poland and Hungary, but across Europe, LGBTI people need all governments to seize this moment and make sure Europe remains a committed and active leader in the arena of human rights for everyone.”

Further information:

• Check out ILGA-Europe’s Rainbow Europe Map and Index here.
• Check out the Country Ranking here.

Executive Summary – Rainbow Europe Map & Index 2021

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 a set of criteria. From May 2021, the number of individual criteria used has risen to 71, divided between six thematic categories: equality and non-discrimination; family; hate crime and hate speech; legal gender recognition and 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 

Rainbow Europe 2021 categories and the percentage ‘weight’ assigned to them remain exactly the same as the 2020 version. ILGA-Europe started assessing two new indicators: “Non-binary recognition” and “Legal gender recognition procedures exist for minors”. They are included under the category of legal gender recognition and bodily integrity; and the percentage ‘weight’ has been altered to accommodate these two new criteria.

Alterations to our criteria make year-on-year comparisons difficult, but certain lessons are clear – countries that are expanding their legislative horizons are moving up in the ranking.

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 sixth year in a row, Malta continues to occupy the number one spot on the Rainbow Europe Map, with a score of 94

Belgium comes second place for the fourth time with a score of 74%.

Luxembourg receives 72 points and occupies the third spot on the ranking for the third year in a row.

The three countries at the other end of the Rainbow Europe scale are Azerbaijan (2%), Turkey (4%), and Armenia (8%), exactly the same as last year.

Denmark is the country with the most dramatic drop in its score, losing 3.80% points in relation to the irregularities for the criterion on depathologisation, with access to trans-specific healthcare still linked with a mental health assessment in the country.

Georgia has also dropped by 3.73% due to the lack of clear procedure for legal gender recognition and the risky situation of LGBTI human rights defenders in the country.

Another important deduction happened, with Ukraine losing 3.5% points due to the expiration of the government’s action plan.

Malta, North Macedonia, and Bosnia & Herzegovina are the three countries with the biggest jump in scores. Malta added sex characteristics under protected grounds in the Refugees Act and published new policy guidelines for LGBTI asylum claims. Malta also received points in relation to ILGA-Europe’s new indicators (“Non-binary recognition” and “Legal gender recognition procedures exist for minors”).

North Macedonia and Bosnia & Herzegovina had a big jump in their scores and rankings, due to the fact that freedom of assembly has been improving in both countries.

Equality and non-discrimination

Equality action plans have expired in Albania, Norway, and Ukraine, while France and Kosovo have shortcomings and implementation problems with their action plans. Finland, Ireland, Sweden, and Germany’s Saarland region’s action plans were the only new ones that received points this year. Governments in Bosnia & Herzegovina, Czechia, and Ukraine are in the process of preparation of their next action plans.

Albania included sex characteristics protection in anti-discrimination legislation. The region of Cantabria in Spain introduced a new anti-discrimination law protecting on the ground of sexual orientation, gender identity, and sex characteristics. A court in Poland clarified that law prohibits discrimination based on gender identity at workplace.

Portugal and Northern Ireland (UK) revoked all restrictions on LGBTI people for blood donation, making it possible for everyone to donate blood safely and equally. Ukraine announced a similar change, but it hasn’t been enacted yet.

Family

Recognition of family legislation is stagnating across Europe. This year, there was no single legal or policy change affecting LGBTI people.

Hate crime and hate speech

Norway was the only country to extend legal protection from hate crime, amending its Penal Code to add gender identity ground.

Legal gender recognition and bodily integrity

Since 6 January, 2021, legal recognition for non-binary people has been implemented in Iceland, making it the only country in Europe to advance trans rights in the last 12 months.

Trans-specific healthcare became almost impossible to access in Northern Ireland. Activists’ reporting has revealed that trans people are unable to access the medical reports required to go through these processes without paying for private care, thus creating a class barrier to accessing LGR.

Civil society space

North Macedonia and Bosnia & Herzegovina have had no state obstruction of freedom of assembly within the past three years and Pride events were adequately protected by police.

Poland’s civil society space has shrunk more this year, because people are being actively attacked by the police during public events, instead of being protected. Poland also lost points related to freedom of expression, due to the anti-LGBT resolutions that have been passed by local governments.

The other country with a negative trend in this regard is Georgia, which lost points with LGBTI human rights defenders at risk, due to a large number of attacks over the last 12 months.

Asylum

Malta introduced new amendments to the Refugees Act and published new guidelines on asylum claims. This was only development regarding protection of LGBTI asylum rights in the last 12 months.

Finland’s policies regarding LGBTI asylum seekers were criticised by LGBTI civil society for being only project based and not creating any systematic approach or policy. Points were deducted by ILGA-Europe from Finland, based on this report.

Across Europe, the rights of rainbow families are divergent, yet every European country has one thing in common: legal protection for LGBTI parents and their children is stalling. To mark International Day of Families 2021, we look at the situations and challenges for rainbow families across the region.

“Rainbow families exist whether you like it or not,” says Bjorn Sieverding from the Network of European LGBTIQ Families (NELFA) in one of our latest podcast episodes, from a season we created about rainbow family rights in Europe. Over the last 30 years, legal recognition of rainbow families has hugely advanced, but usually in the face of strong opposition. More recently, rainbow families across Europe are experiencing serious backlash: Poland and Serbia banned fertility treatments for single women, Russia confirmed the ban on same-sex marriage with a constitutional amendment and in Hungary non-married couples do not have access to adoption anymore.

As rainbow families and LGBTI people’s rights continue to be under attack in several European countries, here are six facts and trends affecting rainbow families in Europe today:

1. Only ten countries in Europe allow automatic co-parent recognition.

Children should have legal protection and equality from the moment they come into the world. Through automatic co-parent recognition, children born to couples, regardless of the partners’ sexual orientation and/or gender identity, do not face any barriers to have a legal right to both of their parents. The countries currently providing automatic co-parent recognition are: Austria, Belgium, Denmark, Ireland, Malta, the Netherlands, Norway, Portugal, Spain, and the UK.

2. Ten European countries do not recognise children of non-biological parents

In Bulgaria, Cyprus, Czechia, Greece, Hungary, Latvia, Lithuania, Romania, Poland and Slovakia, rainbow families do not exist, legally speaking. Therefore, the children of LGBTI couples are left unprotected. This lack of protection dismisses families that don’t follow traditional models, while obstructing their access to basic rights and preventing their normalisation and acceptance in society.

3. Educational curricula and healthcare protocols have not been adapted to include rainbow families

Across Europe, LGBTI parents remain invisible, especially when it comes to education and health. At school, children don’t learn about diverse family structures and there are no health services that take in account different types of families. When there is no inclusive education and health services, rainbow families depend on individual teachers and health workers choosing to do the right thing. Many times, it is the child who in class has to correct the teacher on occasions such as Mother’s Day, instead of having a space to celebrate all families, whoever their members are.

4. There’s a major gap between legislation and societal acceptance of rainbow families

Even in countries where rainbow families are protected, legislation and public opinion don’t always go hand-in-hand. According to NELFA, public opinion is advancing positively, but the speed varies widely. Many people have never encountered rainbow families and therefore are inexperienced with them. However, although in almost every country there are gaps for certain provisions, in some, like Poland and Hungary, there’s no only blatant ignorance but state-fostered hate posing threats to LGBTI parents and their children.

5. LGBTI couples face obstacles when trying to access assisted reproduction

In many European countries, discussions on reproductive rights are on the table, however, while cisgender heterosexual couples have easy access to medically assisted insemination, LGBTI people continue to face reluctance from service providers across the board. Another barrier is arising, following the Council of Europe’s recommendation from 2019, which has seen a shift from anonymous gamete donation towards a known-donor concept.

6. A child cannot have more than two parents

At this point in history, multi-parenting is not recognised in any European country. People who take care of children, who are not their legal parents, do not exist in the eyes of laws across the region. However, it is becoming clear that people raising a child should be protected and supported, and this is in the best interests of the child.