The rights of LGBTI people in the European Union

In some parts of the world, harsh laws reflect negative perceptions of LGBTI people. Consensual same-sex acts between adults are illegal in at least 72 countries, and they are punishable by death in six of them. Several countries have passed new laws criminalizing same-sex behavior since 2013. Others, including some European countries, have enacted or are considering enacting so-called "homosexual propaganda" legislation. The UN and the EU have criticized these for limiting the rights of LGBTI people. Advocacy and human-rights groups have also expressed concern that such legislation can foster an atmosphere of fear and encourage homophobia and hate crime.

On a global scale, the EU appears to be LGBTI-friendly. The EU Member States are signatories to a slew of international treaties2, including the European Convention on Human Rights (ECHR), which outlines a set of fundamental rights for all. At the same time, the EU has one of the world's most comprehensive sets of anti-discrimination laws. Furthermore, the EU promotes LGBTI rights on a global scale. Among many other things, it initiated a UN declaration calling for the global decriminalization of homosexuality.

The proportion of respondents who considered discrimination against lesbian, gay, bisexual, and transgender people to be widespread increased significantly in the 2015 survey (up 12 percentage points to 58 percent and 11 percentage points to 56 percent, respectively), making sexual orientation and gender identity the second and third most commonly indicated grounds for discrimination in the EU. It was noted that the perception of increased discrimination may reflect increased awareness of discrimination as much as an increase in cases of discrimination. According to the most recent 2019 survey, which covers perceptions of discrimination based on sex characteristics as well as sexual orientation and gender identity, 53 percent of Europeans believe that discrimination against gay, lesbian, and bisexual people is widespread in their country, while 48 percent believe the same about discrimination against transgender people.

The surveys show that perceptions of discrimination vary greatly between countries and population groups. Respondents who personally know LGBTI people are more likely to report widespread discrimination. Overall, social attitudes toward LGBTI people have improved across the EU, but there is still significant variation between EU countries in terms of how respondents feel about public displays of affection, working with an LGBTI colleague, having a child in a love relationship with an LGBTI person, or seeing an LGBTI person in high political office. In 2019, 76 percent of Europeans agreed that LGBTI people should have the same rights as heterosexual people (a 5 percentage point increase since 2015), but the figure varied significantly across the Member States, ranging from 98 percent in Sweden and 97 percent in the Netherlands to 31 percent in Slovakia and 38 percent in Slovenia.

The principle of equality and the prohibition of discrimination based on sexual orientation have a broad legal basis in EU Treaties (for example, Article 10 of the Treaty on the Functioning of the European Union (TFEU) and Articles 2 and 3 of the Treaty on European Union (TEU)). These Treaty provisions are supplemented by the EU Charter of Fundamental Rights, which has the same legal value as the Treaties under the Lisbon Treaty. The Convention on the Rights of the Child was the first international human rights treaty to expressly prohibit discrimination on the basis of sexual orientation' (Article 21(1)). However, sexual orientation only recently attained this status. Until the Treaty of Amsterdam in 1999, the relevant EC Treaty provisions only addressed discrimination on the basis of nationality and gender.

According to Recital 22 of the Employment Equality Directive, its provisions have no bearing on national laws regarding marital status and benefits reserved for married couples. Similarly, the proposed new anti-discrimination directive leaves recognition of marital or family status, adoption, and reproductive rights to national laws, ostensibly reflecting diverse national traditions and policy choices. Indeed, there are significant differences in social perceptions of same-sex marriage and child adoption by same-sex couples across the Member States. National laws also differ significantly when it comes to the legal recognition of same-sex unions and adoption. In this regard, there may be said to be a schism between the Member States that were in the EU prior to 2004 and those that have joined since. Some of the latter (Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland, and Slovakia) have anti-same-sex marriage provisions in their constitutions.

A Pew report examines the global divide in attitudes, demonstrating how (non-)acceptance of homosexuality correlates with factors such as age, gender, and religiosity. Pew also investigated disparities in attitudes toward transgender issues. When LGBTI rights are mentioned in the context of marriage or family laws, there is especially strong opposition. This is exemplified by the fierce opposition and mass protests in France sparked by the May 2013 law granting same-sex couples the right to marry and adopt children together. A variety of religious authorities have expressed similar opposition.

Sources and further reading
A long way to go for LGBTI equality, European Union Agency for Fundamental Rights, 2020.
Mapping of studies on the difficulties for LGBTI people in cross-border situations in the EU, European
Commission, 2020
A comparative analysis of non-discrimination law in Europe 2019, The 28 EU Member States, Albania,
North Macedonia, Iceland, Liechtenstein, Montenegro, Norway, Serbia, and Turkey compared European
network of legal experts in gender equality and non-discrimination, December 2019.
Trans and intersex equality rights in Europe: a comparative analysis, the European network of legal experts in gender equality and non-discrimination, European Commission, 2018.
Implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age, or sexual orientation, EPRS, 2014: Complementary Impact Assessment of the proposed horizontal Directive on Equal Treatment.
Trans Rights Europe and Central Asia Index 2020, Transgender Europe.
ILGA Europe Rainbow Packages - Map, Index, and Annual Review of the Human Rights Situation of LGBTI people in Europe (annual publications: 2009-2020). The 2020 map and tables were issued shortly before the International Day against Homophobia, Transphobia, Biphobia, and Interphobia (IDAHOBIT) on 17 May 2020.