Sexual Orientation in EU Law Helena Pereira de

Sexual Orientation in EU Law Helena Pereira de Melo Helena. melo@fd. unl. pt November 2013 1

Oscar Wilde (1854 -1900) 2

Lord Alfred Douglas (1893) 3

The Crown vs. Wilde (1895) n arrested for "gross indecency" under the Criminal Law Amendment Act 1885 - An Act to make further provision for the Protection of Women and Girls, the suppression of brothels, and other purposes n convicted of gross indecency and sentenced to 2 years' hard labour 4

“’Th lovethat darenot speakits name’ this century e in is sucha greataffection an elderfor a younger as there of man was between Davidand Jonathan, as Platomadethe such very basisof his philosophy, suchas you find in the and sonnets Michelangelo Shakespeare. is that deep of and It spiritualaffection is as pure as it is perfect. is that It beautiful, is fine, it is thenoblest ofaffection. it form There is nothing unnatural aboutit. Thatit should so, theworld be does understand. worldmocks it, andsometimes not The at puts one in the pillory for it”. 5

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The Ballad of Reading Gaol (1989) Some love too little, some too long, Some sell, and others buy; Some do the deed with many tears, And some without a sigh: For each man kills the thing he loves, Yet each man does not die. 7

Alexandrina Vitoria (1819 – 1901) 8

“Female homosexuality d not exist " “ladies would never engage in such despicable acts…” 9

Lady Gough's Book of Etiquette (1863) n n n one should not place books by male and female authors side by side, but rather on segregated bookshelves The only time books of male/female opposition should touch is when the authors had been known to be married The word "cock" is removed from the English language "Cockroaches" become "roaches". And male chickens. . . yes, those big, delicious cocks; become big, delicious GENTLEMEN BIRDS! 10

A gentleman bird 11

Sexual orientation: 1. 2. 3. 4. Heterosexual – “opposite” sex Homosexual – same sex Bisexual – both sexes Gender-transgressing identity or expressions 12

Anne Fausto-Sterling The Five Sexes: Why Male and Female Are Not Enough 13

Sexing the body: a) b) c) d) Male Female Intersexed - hermaphrodites Gender reassignment – transsexuals – the third sex? 14

Feb. , 3, 2010 California congressman Duncan Hunter is raising a unique argument against repealing the ban on ‘Don't Ask, Don't Tell’. He thinks allowing openly gay soldiers will destroy the "special bond" among soldiers by opening the military to "transgenders, to hermaphrodites, to gays and lesbians. " 15

Sexual orientation - law: n Bulgaria – “heterosexual, homosexual or bisexual orientation” n Britain – “a sexual orientation towards: (a) persons of the same sex, (b) persons of the opposite sex, or (c) persons of the same sex and of the opposite sex” n Germany – “sexual identity” 16

Matt Dallas of Kyle XY is dating that guy from Mean Girls, Jonathan Bennett 17

Homosexuality - characteristic: n Invisible n Not chosen (? ) n Genetically determined (? ) n Leads to negative discrimination in Europe. 18

Physical manifestation of a gay gene “Did you know that gay men's hair is more likely to grow in a counterclockwise pattern while straight men grow clockwise? Or that a gay man's index finger is likely to be longer than his ring finger - something rarely found on straight men? ” New York Magazine, 2008 19

What if you could know whether your baby is gay? 20

Medieval ages: 21

Legal history of homosexuality - 2 rules: 1. 2. Criminal rule – sexual activity is between man and woman Marriage rule – for legal marriage you need to be of opposite sexes 22

XIX - XX Century Decriminalization (Napoleonic Penal Code – 1810) n Recognition of homosexual identity and subcultures n Recognition of same-sex unions as marriages n Human rights issue - Anti-homosexual discrimination n 23

Anti-homosexual discrimination n Opening marriage to same-sex couples n The right of homosexuals not to be treated differently because of their sexual orientation – no one shall be disadvantaged by law because of the gender of the person she / he loves. 24

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Principle of non-discrimination: n n Treaty of Lisbon – 2007 Charter of Fundamental Rights of the EU -2000 Council Directive 2000/43/EC of 29 June implementing the principle of equal treatment between persons irrespective of racial or ethnic origin Council Directive 2000/78/EC of 27 November establishing a general framework for equal treatment in employment and occupation 28

Treaty of Lisbon: “The Union is founded the valuesof respect human on for dignityfreedom, democracy, equality, ruleoflawandrespect , the for human rights, including rightsof persons the belonging to minorities. These values are common to the Member States in a societyin whichpluralism, non-discrimination, tolerance, justice, solidarity equality between women and men prevail and. ” (article 1 a)) 29

n n n “The Union shall combat social exclusion and discrimination, and shall promote social justice and protection (…)” (article 2) “The Union recognizes the rights, freedoms and principles set out in the CFREU, which shall have the same legal value as the Treaties. ” (article 6) “Fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law. ” (article 6) 30

Article 5 b) “In defining and implementing policies its and activities, the Union shall aim to combat discrimination basedon sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. ” 31

CFREU: n “Everyone is equal before the law” (article 20) n “Any discrimination onany ground such as sex, based race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientationshall be prohibited(article 21). ” 32

The Directives: n The Racial Employment Directive and the Employment Equality Directive n Require the Member States to prohibit discrimination on the grounds of sexual orientation 33

Material scope: n Employment Directive – employment; n Racial directive – employment, education, housing; requires the Member States to establish a body for the promotion of equal treatment. 34

Both apply to: a) b) c) d) Conditions of access to employment, selfemployment or an occupation; Vocational training and guidance; Employment and working conditions; Membership in workers, employers and professional organizations 35

The Racial Directive applies also to: a) b) c) d) Social protection, including social security and healthcare; Social advantages; Education; Access to good and services available to the public, including housing 36

Exceptions: n Religious beliefs – can an employer be hostile to homosexuality because of them? n Work-related benefits of married people e. g. a pension entitlement for a surviving spouse 37

Marriage of 2 homosexual priests 38

Article 4(2) of the Employment Directive: n Member States can maintain laws which allow churches to treat persons differently on the basis of their religion n It does not constitute discrimination when the person’s religion constitutes a genuine, legitimate and justified occupational requirement 39

Forms of prohibited discrimination: 1. 2. 3. 4. Direct Indirect Harassment Instructions to discriminate 40

1. Direct discrimination: “one person is treated less favourably than another is, has been or would be in a comparable situation, on the ground of sexual orientation” 41

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Principle: n Direct discrimination cannot be justified n Exceptions – e. g. genuine occupational requirements or employers with a religious ethos 43

Being gay isn’t enough to get kicked out 44

Major Margaret Witt In 2006, Witt was told she would be honorably discharged for participating in homosexual activity. Having joined the USA Air Force as a 2 nd lieutenant in 1987, she was within a year of retirement and posed for promotion to lieutenant colonel. “Wounded people never asked me about my sexual orientation. They were just glad to see me there. ” (Air Force Times, 2008) 45

Art. 3 (4) of the Employment Directive “Member States may provide that this Directive, in so far as it relates to discrimination on the grounds disability of and age not apply to the armed forces” , shall 46

2. Indirect discrimination “an apparently neutral provision, criterion or practice would put persons having a particular sexual orientation at a particular disadvantage compared with other persons unless it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary” 47

Survival pension: only for widows 48

3. Harassment “unwanted conduct related to sexual orientation takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment” 49

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4. Instruction to discriminate “an instruction to discrimination against persons on grounds of sexual orientation shall be deemed as discrimination” 51

Positive action: “With a view to ensuring full equality in practice, the principle of equal treatment shallnotprevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to sexual orientation” 52

Join the army 53

Personal scope: n The Directives are applicable to all persons, not considering nationality, citizenship or residence status; n Natural and legal persons. 54

Law firm: 55

I have been discrimintated! 56

To whom complain? n Judicial proceedings (civil, criminal, labour, administrative…) n Mediation or conciliation proceedings n Ombudsmen n Labour and education inspectors 57

Burden of proof Shifts to the respondent who has to prove that there was no breach of the principle of equal treatment; n The person who considers to have been discriminated only establishes before the court, facts from which it may be presumed that there has been discrimination n 58

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Associations to victims n Which have a legitimate interest in ensuring that the provisions of these Directives are complied with n May engage on behalf or in support of the complainant, in any procedure 60

Victimization Member States must ensure individuals are protected from adverse treatment or consequences as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment 61

Low volume of case law discrimination: a) b) c) d) e) Difficulties in term of proof Complexity of discrimination law Insufficient financial means Short term limits for bringing a case after the employment relationship has ended The impression that success is improvable 62

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