Over the decades, EU institutions have increasingly integrated the support for LGBTIQA+ legal claims into various areas of EU law. The current legislative term (2019-2024) has seen heightened commitment through numerous resolutions by the European Parliament and several political and legislative initiatives addressing fields relevant to LGBTIQA+ individuals. However, most EU law scholars focus narrowly on non-discrimination in employment and the free movement of same-sex couples, often treating LGBTIQA+ issues as incidental. This summary provides a comprehensive overview of the EU’s direct commitment to the LGBTIQA+ community during this term, highlighting political, legislative, and judicial developments and contextual challenges in EU law regarding LGBTIQA+ matters.
The Strategy
The EU LGBTIQ Equality Strategy, adopted by the European Commission on 12 December 2020, marks a significant step towards LGBTIQA+ equality. This adoption coincided with the appointment of the first-ever Commissioner for Equality and the establishment of a dedicated unit for ‘non-discrimination and LGBTIQ’ matters. Although the EU had existing legal bases for non-discrimination and equality, such as Article 19 TFEU and Article 81(3) TFEU, there was a lack of a coherent approach, which the Strategy aims to address.
The Strategy is significant for its symbolic value, comprehensive approach across four main areas (tackling discrimination, ensuring safety, building inclusive societies, and promoting equality globally), and detailed action plan with legislative and non-legislative initiatives. Despite progress, discrimination remains high, as shown by surveys and reports. With the Strategy’s end date approaching and EU elections upcoming, it remains uncertain if the next European Commission will develop a new instrument for LGBTIQA+ equality or attempt to fulfill the current Strategy’s unmet objectives.
Recognition of same-sex parents and their children
On 7 December 2022, the European Commission proposed the Equality Package to harmonize parenthood rules in cross-border situations. It mandates that once parental bonds are established in one Member State, they must be recognized throughout the EU. This follows the 2021 CJEU ruling in the Pancharevo case, which required Member States to acknowledge same-sex parenthood for free movement purposes, although they can still choose whether to recognize it domestically. Despite this, same-sex parents often face lengthy and costly legal processes. The proposed regulation aims to streamline these processes but faces challenges due to the need for unanimous approval from all Member States, with some, like Italy, already opposing it.
A word on hate speech and hate crimes
Currently, EU law criminalizes hate crime and hate speech only on grounds of race and ethnic origin. To enhance LGBTIQA+ safety, the European Commission proposed including hate crimes and hate speech against LGBTIQA+ individuals within EU crimes in December 2021. This requires updating the list of serious crimes in Article 83(1) TFEU, which necessitates unanimous Council approval and subsequent legislation. Although the European Parliament supports this initiative and many Member States favor it, unanimity remains a significant obstacle, as progress has stalled since the initial discussions.
What the European Union values
In December 2022, the European Commission referred Hungary to the Court of Justice over a 2021 law restricting minors’ access to LGBTIQA+ content. This marked the first time the Commission directly invoked Article 2 TEU, linking LGBTIQA+ equality with EU’s founding values. The move prompted political and judicial mobilization, with the European Parliament and fifteen Member States, including first-time interveners France and Germany, supporting the Commission. However, the predominantly Western support highlights an ongoing East-West divide on LGBTIQA+ rights, complicating the achievement of cohesive EU-wide action due to unanimity requirements.
The way forward
EU institutions, particularly the Commission and Parliament, are increasingly dedicated to enhancing protections for LGBTIQA+ individuals through initiatives like the EU Strategy and related legislative proposals. Despite positive visibility and support from Parliament, legislative progress is stymied by Council unanimity requirements. Legal advancements primarily stem from CJEU rulings, such as Pancharevo, due to procedural challenges and divergent Member State views. With upcoming elections potentially shifting Parliament’s composition towards conservatism, the future of EU commitment to LGBTIQA+ rights remains uncertain, possibly leaving the CJEU as the community’s main recourse.