CONSERVATIVE MEP FOR SCOTLAND

EU Referendum: LGBTI

The purpose of this paper is to consider whether membership of the EU provides an advantage to the UK in terms of Lesbian Gay Bisexual Transgender and Intersex issues.

01.06.2016.

The purpose of this paper is to consider whether membership of the EU provides an advantage to the UK in terms of Lesbian Gay Bisexual Transgender and Intersex issues.

I am the Vice President of the European Parliament’s LGBTI Intergroup.  You can see the work which I have done in this area on my website[1].

The EU and LGBTI Rights

Scotland was recently ranked the best nation in Europe for LGBTI rights[2] for the second year in a row. Of the EU Member States, the UK is ranked third, behind Malta and Belgium[3]. By comparison, Germany is mid-table, the Netherlands not far behind and Italy close to bottom.  Six EU Member States do not formally recognise gay relationships in any form[4] and nine have a constitutional interdiction on gay marriage[5]. Differences in LGBTI rights across the EU Member States have been mapped by ILGA-Europe and can be viewed here[6].

The right of the EU to legislate on LGBTI issues is complicated. Family law matters - recognition of marriage, spousal rights, adoption and so on - is reserved to Member States. However, the EU has legislated on employment issues and matters related to the single market, including

Employment Equality Directive[7], which prohibits discrimination on the ground of sexual orientation in employment and vocational training;

Gender Equality legislation which prohibits discrimination on the ground of sex[8].

European Court of Justice (ECJ) case law has also established that discrimination on the basis of gender reassignment would constitute discrimination on the grounds of sex[9]. 

EU asylum law recognises LGBT status as a qualification for asylum[10].

The Victims’ Rights Directive mandates specific assistance and protection to those who suffered hate crime because of their sexuality, gender identity or gender expression[11].

The Parliament’s LGBTI Intergroup regularly writes to governments within the EU highlighting examples of intolerance, discrimination or oppression[12]. As an MEP I have sought to use the platform my role provides to support gay rights activists in the EU and further afield. I have hosted in the Parliament activists from Tunisia[13] and from Turkey[14], providing them with an opportunity to highlight issues in their homelands. I recently met with the Tunisian Prime Minister and pushed for the repeal of Article 230 of the Tunisian Penal Code that criminalises homosexuality[15].

The role of the Commission is more quixotic. In a number of areas, despite the supportive words, the European Commission has been reluctant to match it with action. The failure of the Commission to adopt an LGBTI strategy despite earlier promises, and its later downgrade to a list of ‘actions’, is systematic of a developing disconnect between EU rhetoric and EU reality when it comes to gay rights[16].

No place like home

UK membership of the EU is a positive influence on the European institutions. British voices in Council and Parliament regularly call out the behaviour of less tolerant or less progressive states. However, given the limited competence of the EU outwith employment and trade, progress does depend upon the attitude of the member states.

The UK is LGBTI friendly[17]. With 32 out MPs[18], 10 out MSPs[19] (of the Scottish party leaders, 3 of 5 are gay) and 3 members of the Welsh Assembly[20], the UK has the most elected gay representatives. Gay marriage is legal in every part of the UK save Northern Ireland. The UK Equality Act 2010[21] incorporates (and goes far beyond) the EU Employment Equality Directive 2000 in terms of LGBTI rights, protecting those who identify as gay, lesbian or bisexual from direct and indirect discrimination as well as discrimination by association or by perception.

Progress has been driven by successive UK governments, and by the devolved administrations. It does not depend upon the EU.

Gay rights in the EU neighbourhood and further afield

It is beyond the immediate borders of the EU that the impact of the EU on LGBTI rights is most keenly felt. Before a membership application can progress, applicant states must address deficiencies in the protection of minority rights. The new financial instrument for Pre-Accession Assistance 2014 - 2020[22] includes the declaration that an applicant member state must advance the, ‘promotion and protection of human rights and fundamental freedoms, enhanced respect for the rights of persons belonging to minorities, including LGBTI persons.’ Last year the Parliament[23] urged aspiring member Bosnia & Herzegovina to include not only sexual orientation and gender identity in its hate crime law, but also to ‘implement awareness raising-action on the rights of LGBTI people among the judiciary, law enforcement agencies and the general public’[24].

EU Development aid often links funding with a country’s attitude toward gay rights. In 2014 the EU withdrew funding from Gambia due to its poor human rights record and its adoption of anti-gay laws[25]. However, Member States often act unilaterally in these circumstances too. When Uganda proposed further repressive legislation against homosexuality, Denmark, Norway and the Netherlands each froze aid payments to the country.[26] The UK ended all direct budget aid to Uganda in 2013[27].

The Verdict

The EU was an early adopter of anti-discrimination legislation, and the various directives established a foundation upon which many member states (though not all) have sought to build further supportive measures. Enforcement of the measures still depends upon the commitment of the member states, but where there is discrimination recourse can be sought via the European Court of Justice.  Whilst the EU has a well-established anti-discrimination legislation, so too do states outwith the EU. Certainly in the West it is likely that progress on discrimination would have been made irrespective of the EU. Its time had come.  Whether the same could be said of certain of the member states which joined more recently is debatable, certainly in the area of sexuality.

However on the wider gay rights agenda, the role and actions of the EU are far less clear. Legislative competence prevents the EU from acting across a whole range of family law issues. Furthermore, whilst the Commission (notably Vice President Frans Timmermans) remains supportive of the LGBTI agenda, its failure to adopt an LGBTI equality strategy is disappointing and may indeed be indicative of the limitations of the EU in advancing the greater gay agenda.

Progress on the LGBTI agenda in the UK owes more to successive British (and Scottish) governments than to the EU. Equal marriage, adoption rights and gender identity have all been moved forward (considerably further than by our near EU neighbours) by progressive UK governments.

As the EU continues to grow, its ability to compel applicant states to accept the anti-discrimination measures is a progressive measure, as is the leverage provided by linking development aid with measures of tolerance. These aspects of EU policy will however continue with or without the UK in membership.

The conclusion would appear to be that the UK is a strong voice within the EU helping to secure advances on LGBTI issues. Absenting the UK from the EU, could well have a detrimental impact on the EU in relation to this agenda.

 

 

[1] http://www.ianduncan.org.uk/index.php/site/lgbti

[2] http://www.scotlandnow.dailyrecord.co.uk/news/scotland-best-europe-lgbti-equality-7951787

[3] https://rainbow-europe.org/country-ranking

[4] Bulgaria, Italy (until the civil partnership law enters into force), Latvia, Lithuania, Poland, Romania, Slovakia.

[5] Bulgaria, Croatia, Hungary, Italy, Latvia, Lithuania, Poland, Romania, Slovakia

[6] https://rainbow-europe.org/country-ranking

[7] Directive 2000/78/EC

[8] Directive 2004/113/EC

[9] P.v.S. and Cornwall County Council (1996)

[10] 2011/95/EC

[11] 2012/29/EU

[12] http://www.lgbt-ep.eu/work/

[13] http://www.lgbt-ep.eu/intergroup-documents/meps-call-on-tunisia-to-decriminalise-homosexuality-and-enforce-post-revolution-constitution/

[14] http://www.lgbt-ep.eu/intergroup-documents/upcoming-event-lgbti-rights-in-turkey/

[15] http://www.ianduncan.org.uk/index.php/site/article/meps_call_on_tunisia_to_decriminalise_homosexuality_and_enforce_post_revolu

[16] http://www.ilga-europe.org/resources/news/latest-news/eu-fails-adopt-lgbti-equality-strategy-proposes-list-actions

[17] http://www.ilga-europe.org/sites/default/files/01_full_annual_review_updated.pdf

[18] http://www.dailymail.co.uk/news/article-3080663/Westminster-world-s-gayest-Parliament-Commons-32-openly-gay-lesbian-bisexual-MPs-compared-10-Holland.html

[19] http://www.huffingtonpost.co.uk/entry/scotland-lgbt-jeane-freeman-annie-wells-snp-gay-marriage_uk_5735f852e4b01359f686e596

[20] http://www.bbc.com/news/uk-wales-politics-36230898

[21] http://www.legislation.gov.uk/ukpga/2010/15/contents

[22] (Regulation (EU) No 231/2014 of the European Parliament and of the Council of 11 March 2014 establishing an Instrument for Pre-accession Assistance (IPA II)) 

[23] http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=20150430&secondRef=TOC&language=EN

[24] http://www.lgbt-ep.eu/press-releases/european-parliament-asks-bosnia-herzegovina-and-albania-to-step-up-efforts-on-lgbti-rights/

[25] https://www.euractiv.com/section/development-policy/news/eu-cuts-aid-to-gambia-over-human-rights-concerns/

[26] http://www.euractiv.com/section/development-policy/news/europe-reconsiders-uganda-aid-following-anti-gay-law/

[27] http://www.telegraph.co.uk/news/worldnews/africaandindianocean/uganda/10668278/Keep-your-gays-and-keep-your-aid-Uganda-tells-the-West.html