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European Commission

Viviane Reding

Vice-President of the European Commission, EU Justice Commissioner

The Commission's actions are making LGBT rights a reality

1st International International Day Against Homophobia and Transphobia (IDAHO) Forum / The Hague

17 May 2013

Dear Ministers,

Ladies and Gentlemen,

I am very happy to be with you here today to mark the International Day against Homophobia and Transphobia.

Homophobia and transphobia are violations of human dignity. Homophobic and transphobic attitudes are incompatible with the values and principles upon which the European Union is founded – as laid out in Article 2 of the Treaty.

And yet, LGBT people in all countries of the EU continue to be victims of violence, exclusion and discrimination. Invisibility remains a daily survival strategy for many.

The figures we have just heard from the Fundamental Rights Agency confirm this sorry picture. Nearly half of the participants in the survey felt they had been personally discriminated against or harassed in the past year on the basis of their sexual orientation.

Let’s not kid ourselves. Let’s not pretend this is a freak result. These figures, worrying as they are, confirm the Eurobarometer results from last year. According to EU citizens, discrimination based on sexual orientation and gender identity is widespread in all the Member States. In some countries extremely high levels of intolerance are reported: up to 77% of a national LGBT Community can be affected.

Homophobic incidents are a reality in many countries. Take the debate and demonstrations in France on "marriage for all". The debate was intense both amongst civil society and in the political arena. Divergent political and social convictions are healthy in a democracy. Some will agree, some will disagree. But all should condemn the steep rise in reported homophobic incidents and physical violence against LGBT people that they have triggered. Violence against any group is unacceptable in the 21st century – and it is against the law. So, what are you doing in your country to prevent and prosecute those responsible for the facts made public by the Fundamental Rights Agency report today?

I would like to take this opportunity to strongly condemn all incidents of this nature that still occur within the EU. These figures, these facts, are a reminder for everyone that homophobia and transphobia are a reality.

So what has the Commission done to actively fight against homophobia and transphobia?

We all know that there is work to be done, but we are not starting from zero. We have come a long way and we have made significant progress over the past years.

Our laws and our policies are supporting the fight against discrimination of LGBT people.

One key achievement of the EU is our Charter of Fundamental Rights which, since the Lisbon Treaty, is legally binding on EU institutions when they propose laws and on Member States whenever they implement EU laws. The text is unambiguous. It prohibits discrimination based on sexual orientation.

It is the role of the European Commission to ensure that this principle is respected in every EU action. It is also the Commission’s role to ensure that it is upheld by Member States when they implement EU law.

This is not theory. It has a concrete impact in three ways.

First, it means that legislative proposals and initiatives in any EU policy area that could have an impact on the right to equal treatment and non-discrimination are scrutinised in light of the Charter before the Commission adopts them. We carry out a ‘fundamental rights check within the impact assessment carried out before every proposal. This means that I am not the only Commissioner who is responsible for Fundamental Rights in the College. It means that every one of my colleagues has a role to play. We are all guardians of the EU’s values when we propose legislation. And we keep a close eye on fundamental rights compliance during the entire negotiation process to make sure the final result is also "fundamental rights-proof".

One example of where the Commission made sure that the specific concerns of LGBT people were taken into account is the Qualifications Directive in the area of Asylum. It explicitly refers to sexual orientation as a reason for persecution and therefore as a grounds for seeking asylum under EU rules.

Another example is the recently adopted Directive on the rights of victims of crime in the EU. Once implemented by the Member States, it will provide specific assistance and protection for people who suffered crime because of their sexual orientation, gender identity or gender expression. Yet another testament to the EU's commitment to protecting the rights of LGBT people in the area of justice.

And finally an example in the area of health which shows how the Commission has followed up on our fundamental rights commitment during the negotiation phase of EU policy-making. The case concerned blood donations. As my colleague Commissioner Tonio Borg clearly said to the Members of the European Parliament, so-called "risk groups" excluded from donating blood must be defined in function of concrete personal behaviour but certainly not based on abstract sexual orientation. The Commission intervened during the negotiations on a Council of Europe recommendation on risky behaviour in blood donor management to prevent the draft text from discriminating against donors based on sexual orientation. As a result, the Council of Europe committed to definitions of donor deferral criteria that are based on objective recognised risks and their relevance to blood safety, irrespective of the sexual orientation of the potential donor.

Second, the Commission has proposed and continues to fight for legislation tackling discrimination on the basis of sexual orientation directly.

A major achievement is the legislation to ban discrimination on the basis of sexual orientation in employment from 2000. I am very proud to say that this has raised the level of protection for LGBT people in all countries of the EU.

In particular, the Maruko and Römer judgments of the Court of Justice made clear that, where same-sex civil partnerships are recognised and globally given the same rights as married couples, these partnerships must be treated equally also in terms of employment rights and occupational social security.

More recently, the Court has addressed homophobic tendencies in football, clearly stating that homophobic statements are discriminatory as a matter of principle and do not require an individual to be targeted.

As you know, the European Commission proposed a new law in 2008 to extend protection from discrimination on the basis of sexual orientation and other grounds beyond the work place to areas such as access to goods and services, social protection and education.

And as you also know, this law requires unanimity in the Council. The fundamental opposition of some Member States therefore blocks the text. The ball is clearly in the Member States' court. They have the possibility to move up a gear if they wanted to unblock the negotiations on this proposal.

Third, the European Commission has taken Member States to Court where the respect for fundamental rights of LGBT persons in the implementation of EU law was at stake.

I return for a moment to the example of asylum applications based on claims of prosecution on grounds of sexual orientation. A Member State [Czech Republic] applied undignified and intrusive testing to verify such claims. The Commission threatened action before the court. Such testing was conducted under the pseudo-scientific label of "phallometric tests". The practice has now been stopped.

In another Member State [Lithuania], the Commission intervened under EU rules on audio-visual services against restrictions on broadcasts on homosexuality. That would have been a discrimination based on sexual orientation.

We have also been active as regards the right to free movement, making sure that EU citizens can fully enjoy their rights – no matter what their sexual orientation is. Free movement is one of the most important and most cherished EU principles. It is therefore imperative that LGBT persons and their family members can exercise their right to free movement in the Union.

That is why the Commission intervened in a Member State [Malta] that refused to grant same sex partners in a durable relationship the right of free movement. They identified same sex partnerships as being “contrary to the country’s public policy”. As a result of the Commission's action, the national legislation was modified and is now compatible with EU rules on the rights of EU citizens to free movement and non-discrimination.

Another example is our intervention in an EU country [Poland] that refused to issue civil status documents for citizens who wanted enter into a same sex partnership in another Member State. The Commission intervened against this practice is incompatible with the respect of private and family life (Article 7 of the Charter), the prohibition of non-discrimination on the basis of sexual orientation (Article 21 of the Charter) and EU rules guaranteeing free movement and residence. As a result, again, the national legislation was modified.

So you see: asylum, free movement, health, protection of victims to name but a few. The Commission has acted on all these cases. And these are not the only examples.

Our annual reports on the application of the EU Charter of Fundamental Rights (the third of its kind, which I presented just last week) are rich with concrete facts. I invite you to read these. They provide ample proof that the Commission acts wherever the rights of the LGBT community are at stake. Unfortunately, too often these examples are not known. I hope I can count on you to help make people aware of these actions. 60% of LGBT people say that they don't report any discrimination instances because they believe nothing will change. We have already changed things and we will continue to do so wherever we have the legal means - to make sure that the rights and freedoms that underpin the Union are a reality backed by law and not a promise shimmering on the horizon.

Of course, legislation alone is not enough. In order to fully protect LGBT people from discrimination and to promote equality, we are working to challenge stereotypes and change attitudes.

This means standing up and making your voice heard even when the circumstances might not be favourable. This means lending my voice and support where authorities tried to hamper or ban Gay Pride Parades. Why? Because beyond the parties and the music and the spectacle, these parades are the litmus-tests for the openness of our societies!

In parallel, and in a more long-term perspective, the European Commission supports actions across Europe to raise awareness of discrimination and promote diversity and equality.

A vibrant civil society, able to fight for the rights of LGBT people, is an indispensable component for eradicating discrimination. That is why, for more than a decade now, the European Commission has been supporting NGOs and their work to promote equal rights for LGBT people in Europe. And we will continue to do so.

It is important for us to work closely with Member States to support their fight against the discrimination of LGBT people at national level. This support includes financial assistance as well as seminars where best practices are exchanged. By the way, the very first of these seminars took place here in The Hague.

It is important that, once identified, best practices are spread throughout the EU. The French government action program against violence and discrimination on the grounds of sexual orientation and gender identity from last October, for example, is an idea worth spreading. This public political commitment follows the logic of integrating several policy areas relevant for LGBT people and testifies of cooperation, consultation and coordination with different institutions and actors.

And we don’t confine ourselves to the EU’s borders. If these are our values, we should be proud of them, and make sure that they are spread. We are not only looking at what is happening within the EU. No, we are active in the international arena, in bilateral as well as multilateral fora such as the United Nations. The EU will soon adopt new guidelines for its external activities to promote and protect the enjoyment of all human rights by LGBT people in third countries. EU action will focus on discriminatory laws and policies, especially in those states which still criminalise consenting same-sex relations. The EU is particularly concerned about cases of LGBT-phobic violence, which undermines the most basic human rights principles. We will actively support civil society and governmental initiatives that monitor cases of violence, educate law enforcement personnel, combat impunity, and seek assistance and redress for victims of such violence.

Ladies and gentlemen,

As you can see, the Commission is working hard to make sure that we keep moving in the right direction.

I am happy that Ministers from all parts of the Union, of all political persuasions, have reiterated their commitment to societies free of discrimination. I hope that they will also deliver: actions should follow words.

Public authorities must strongly condemn and actively fight against discriminatory phenomena. This includes ensuring that any alleged acts are promptly investigated and, when necessary, the perpetrators of such acts are brought to justice.

What are the action plans, or even better, what are the actions, at national level to encourage national prosecutors and investigators to fight against acts of homophobia and transphobia?

Our common strategy must be to ensure that our actions make a difference.

Let's make sure that we implement and properly apply what has been agreed, such as the Victims of Crime Directive and the non-discrimination Directive.

The Commission will not let its guard down in reminding Member States of their obligations under EU law – even if this is not a very popular course of action at times.

The Commission will keep up its commitment to fighting homophobia and to promoting equality for LGBT people in Europe – and beyond.

In short: you can count on me. And I hope I can also count on your full support in this important endeavour.

Thank you for your attention.

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